Exposing Biased Testimony On Cross-Examination
New York Law Journal
February 23, 2010 Tuesday
SECTION: EXPERT ANALYSIS; Pg. p.3, col.1 Vol. 243 No. 34
LENGTH: 1815 words
HEADLINE: Exposing Biased Testimony On Cross-Examination; TRIAL ADVOCACY
BYLINE: Ben Rubinowitz And Evan Torgan
Few things are more enjoyable to a cross examiner than exposing a witness who has intentionally lied during direct examination. In addition to destroying the credibility of the witness, catching the witness in a lie serves the additional dual purpose of undercutting your adversary’s cause while at the same time, strengthening your position in the eyes of the jury. Far more challenging and a little less dramatic than attacking the witness who has been caught in a bold-faced lie, or exposing the one who has been convicted of a crime, is the task of attacking the average, law-abiding witness who is simply biased in favor of the adverse party. Cross, in this situation, must focus on exposing any motive that the witness has for telling less than the truth such as the witness’ bias, prejudice, sympathy, empathy, hostility, friendship, and any other interest the witness has in your adversary’s case.n1To properly attack the biased witness, the underlying facts supporting that bias must be carefully elicited on cross-examination. Crucial to achieving this goal is the thorough preparation of a detailed list of those factors before ever setting foot in a courtroom. This list can serve as a road map for a powerful cross on bias. That cross, if successful, will not only expose the witness’ bias, but will also allow the examiner to argue on summation that the witness may have concealed the truth and deceived and misled the jury by withholding important information.Imagine, for example, the scenario in which the sole witness, (aside from parties), to an accident is a friend of the defendant. During discovery, although both you and your investigator tried to speak to the witness, the witness refused to speak. No deposition was taken of the witness. The trial begins. As expected, this defense-friendly witness voluntarily appeared at trial, testified on behalf of the defendant, and hurt your case. Assume you also learned, just prior to your cross-examination of this witness, that the defendant’s investigator had driven the witness to court.In this situation, an unprepared lawyer might be limited in his cross-examination of such a witness, resulting in his inability to expose the bias and prevent the inevitable damage to his case. To the armed and ready lawyer, however, these circumstances present just the foundational material necessary to expose bias and to suggest to the jury that the witness ought not be believed.Factors upon which to crossexamine such a witness might include: bias based on friendship; bias based on a witness who testifies without a subpoena; bias based on transportation to court; and bias based on the witness’ refusal to speak to the opposing party. True, each individual factor might not, in and of itself, amount to much; but when taken together, an effective cross examination by a skilled cross examiner using a carefully mapped out technique will expose the bias and provide the basis for a powerful argument on summation.
Cross on FriendshipFriendship has long been recognized as a fertile area for cross. The amount of time friends have known each other, the nature of their relationship, the frequency with which they see each other, and the knowledge the witness has in the defendant’s (or plaintiff’s) plight are all explorable areas for attack. Examining the nature and extent of the relationship between the witness and the defendant is the perfect introduction for the cross on bias:Q: You’ve known (the Defendant) for a number of years, true?Q: How many years?(A: 15.)Q: He is a friend of yours, correct?Q: During those 15 years you have been to his house?Q: He has been to yours?Q: You know his family?Q: He knows your family?Q: You’ve socialized together?Q: You know his children?Q: They are on a first-name basis with you?Q: You know them by name?Q: You also know (the defendant) has been sued, correct?Q: That he’s being sued for money damages, true?Q: You would like to help him wouldn’t you?(A: I wouldn’t lie for him.)Q: My question is specific: You would like to help him, wouldn’t you?Q: You don’t want to see him lose this case, do you?Q: You would like to help your friend through your testimony, true?Q: You would like to see a successful outcome for him, wouldn’t you?
On Absence of SubpoenaNext, the cross examiner should focus on the fact that the witness has come to court willingly, i.e., without the compulsion of a subpoena, and testified voluntarily. Generally, a subpoena can be thought of as an indicia of objectivitythat is, that the witness has no axe to grind and will testify the same no matter which party called him to the stand. On the other hand, the argument is that the witness who testified without a subpoena is, simply put, eager to help out only one side of the case:Q: You were served with a subpoena in this case weren’t you?(A: No, I wasn’t.)Q: You mean you came to court voluntarily?Q: Certainly, you were asked to come to court true?Q: But you were asked (by the defendant), correct?Q: And based on your friendship, you decided to come to court?Q: When did he ask you to come to court?(A: A few days ago.)Q: He only had to ask once, true?Q: And you said you’d be happy to help him out right?Q: There was no need for a subpoena, correct?
Cross on TransportationTransportation to and from court might seem innocuous. It is not. It is often strongly indicative of the witness’ relationship with only one side of the case. The fact that the witness is receiving free transportation is only one aspect of the cross. Far more important, however, is the fact that the witness is often prepared or re-prepared for his in-court examination during the ride.In the event the witness chooses to deny that he was prepared during the transportation, he can be made to look foolish. If, on the other hand, he admits to being prepared at that time, inquiry can be made as to the extent of such preparation:Q: How did you get to court today?(A: By car.)Q: But that car wasn’t your car, was it?Q: In fact, it was an investigator’s car, true?Q: That investigator works for the defendant, correct?Q: That investigator spoke to you yesterday, right?Q: How long did you speak?(A: About 15 minutes.)Q: He told you he would provide free transportation, correct?Q: Both to and from court?Q: By the way, did you discuss the facts of the case yesterday?(A: No.)Q: Not a word was said about the case during that 15-minute period?(A: True.)Q: How long did the ride to court take?(A: About 45 minutes.)Q: During those 45 minutes, you discussed the case right?(A: No.)Q: Not one word was mentioned about why you were appearing in court today?(A: No.)Q: You had no idea what you’d be asked?(A: That’s right.)
Then, in a sarcastic tone; the following questions can be asked:Q: Let’s seeyou discussed the weather for about 45 minutes?Q: You discussed current events for 45 minutes?Q: You discussed sports for 45 minutes?Q: The one and only thing you didn’t discuss was this case, right?
If, on the other hand, the witness chooses to say that he did discuss the case, the cross can proceed as follows:Q: You also discussed your answers to specific questions, true?Q: You discussed how best to answer those questions?Q: You reviewed details of the accident?Q: You learned what happened in the trial so far?Q: You learned what was said during opening statement, right?Q: You also learned about the types of questions I might ask, true?Q: You were told to keep your answers short?Q: You were told what points to emphasize, right?Q: You carefully reviewed the most important answers, true?Q: You also spoke about what not to say, correct?
Refusing to SpeakThe witness’ refusal to speak to the opposing party must be brought out on cross. Ironically, the refusal, in and of itself, speaks volumes. If the witness were truly independent and had no interest in the outcome of the case, he would have no reason to refuse to speak. If, however, the witness was worried about saying something that would jeopardize his friend’s case, he might have a motive for his refusal to speak:Q: You’ve told this jury you were a witness to the accident.Q: And that you clearly observed what happened?Q: Wouldn’t it be fair to say that no matter who asked you questions, you would tell the same exact story?Q: Regardless of when you were asked?Q: Regardless of who asked you the question, right?Q: In other words, you had nothing to hide?Q: And you had no one to protect, true?Q: But you deliberately chose to speak with only one side of the case, true?Q: You chose to only speak with your friend’s investigator?Q: How many times over the years did you speak to him?(A: About 5-6 times.)Q: You reviewed the facts in detail with him true?Q: My investigator contacted you shortly after the accident, true?Q: He was polite?Q: He was kind?Q: He said all he wanted was the truth, correct?Q: You refused to speak to him about the accident, right?Q: But you had nothing to hide, right?Q: He called you again before trial, right?Q: He told you that all he wanted was the truth?Q: Once again he was polite?Q: Again you refused to speak, correct?Q: You are aware that I called you before trial, true?Q: And I said, very politely, all I want is the truth?Q: And you refused to speak to me?Q: Did anyone tell you not to speak with me?Q: Did anyone suggest that you not speak with me?Q: Did anyone suggest that you not speak with my investigator?Q: You consider yourself a fairminded person true?Q: So fair-minded that you will only speak with one side of the case, right?
A lawyer’s thorough preparation of his case is the key to achieving a successful outcome. An integral component of this preparation is being ready for the testimony of a defense witness (or plaintiff’s) who may also have an interest in the outcome of the casethe friend.With the use of the techniques outlined in this article, what could have been harmful testimony and an otherwise uneventful cross-examination, transforms into an exciting cross-examination that both captivates the attention of the jurors and leaves them ambiguous about the witness’ credibility. Exposing biased testimony on cross-examination is the perfect opportunity to plant the seed in the minds of the jurors that perhaps this witness is not so disinterested, objective, or even truthful, as your adversary would have them believe.
[note 1] For a detailed discussion of exposing bias during cross examination refer to, Patrick L. McCloskey & Ronald L. Schoenberg, “Criminal Law Advocacy,” 12-03 (Matthew Bender 1982).
BEN RUBINOWITZ is a partner at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz and an adjunct professor teaching trial practice at Hofstra University School of Law and Cardozo Law School.
EVAN TORGAN is a member of Torgan & Cooper. The authors can be reached at firstname.lastname@example.org and email@example.com
RHONDA E. KAY, a partner at Gair Gair, assisted in the preparation of this article.