Empathy and Cross-Examination

I recently had an opportunity to cross-examine a heroin-addict witness who claimed that he had watched my client inject another person with heroin, and then had injected himself. The State’s theory was delivery by injection. The witness denied having participated in the alleged delivery—a crucial point because of Texas’s Accomplice-Witness Rule. My client hadn’t injected the girl, but lack of corroboration would get us to the same ending point: if the jury believed—or had a reasonable doubt—that the witness had participated in the charged offense, they could not convict my client based on the his uncorroborated testimony.

I knew that the witness wasn’t going to admit that he was the one who did deed, but I thought that I might be able to get him to say that he had helped deliver the heroin.

In planning a cross-examination, we start with statements that the witness can’t deny without appearing dishonest (or being impeached), leading to statements that the witness could credibly deny but for the first level of admissions, then to statements that the witness could credibly deny but for the first two levels of admissions, and so forth. Just like building a pyramid. The objective at every step is to make a statement that the witness has to either agree with or appear dishonest.

Verisimilitude and plausibility are two tools criminal defense lawyers have to work with when they’re preparing to cross-examine a witness. Sometimes, though, verisimilitude and plausibility fail: people do things that make perfect sense to them in context, but seem implausible or even bizarre. Sometimes the truth is stranger than fiction. When the witness’s course of action is less obvious to ordinary people than to him, we need a sharper tool than verisimilitude and plausibility.

From the point of view of an ordinary person, it seems reasonable that the junkie would watch one person deliver heroin to another without participating, then shoot himself up.

From the junkie’s point of view, though, that’s implausible: he wants to get the dope in his veins as quickly as possible; if there’s someone else in line, he’s going to do whatever he can speed up the process of getting dope into that person’s veins so that he can inject himself.

Once the proposition is stated, it seems obvious to the ordinary person (and more importantly to the junkie, for whom the hunger for dope is life’s central imperative). But truths that are obvious once expressed are not inevitably discovered. Native intelligence and formal education are instruments of little use when we’re searching for the secrets of the human heart (most of which are more opaque than a junkie’s ache for heroin).

I wrote a couple of years ago about criminal defense lawyers’ need for empathy—at that time a controversial position. Preparing for the cross-examination of the junkie is a good example of a situation in which empathy and its cousin imagination will beat anything else in the lawyer’s toolkit.

5 Comments

  1. Excellent post Mark. Always pays to remember that the witnesses, adversaries, judges, etc. are individuals, with names, needs, interests, etc. As advocates we need to cater to that individuality when possible, and this is a striking example I’m going to share with my litigation teams.

  2. Concur generally. “Take account of” was what I meant. Would note that such taking account of can result in catering, however. For example, ego-stroking an adversarial witness can cater to the needs of the witness while helping the advocate obtain a necessary admission. Similarly with jurors (considerations of real life experience), Judges (interests in, say, lively writing) co-counsel (interests in looking good) — all can and often should shape the advocate’s presentation and substance, versus cookie-cutter or paint-by-numbers advocacy conducted without regard to the needs and interests of the other players.

  3. The ‘method acting’ approach to trial advocacy.

    Trainspotting confirms the imperative:

    ‘I want a ****ing hit!’

    ‘Living like this is a full-time business.’

    The junkie client should hopefully give that insight.

    Great post. No CPD course can ever teach you to put your shoes in the witness to that extent.

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