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.

Complex Questions and Children

Here is an article (Complex Questions Asked By Defense Lawyers But Not Prosecutors Predicts [sic] Convictions in Child Abuse Trials) from the Journal of Law and Human Behavior describing a study using automated linguistic analysis finding that the complexity of the questions asked by defense counsel in a child sex abuse case predicts the outcome of the case: more complex questions asked by the defense are associated with convictions.

The study analyzed 46 randomly-selected transcripts from felony child sexual abuse trials in Los Angeles between 1997 and 2001 involving at least one testifying complainant under age 18, and then narrowed the transcripts down to questions directed toward child witnesses by the defense (average 239 questions per trial) and the prosecution (344 questions).


Connexor Functional Dependancy Grammer (FDG) [demo] parser was used to obtain complexity and wordiness measures of the defense and prosecution’s questions. The software produced the total number of layers (complexity measure) and branches (wordiness measure) for each question. Then, mean scores for complexity and wordiness for each child witness were calculated for the defense and prosecution.

. . . .

Paired sample t-tests revealed no significant difference in the number of words used by the defense (M = 33.88, SD = 9.91) and prosecution (M = 32.40, SD = 19.80), t(45) = .88, p = .38. Also, the defense and prosecution question wordiness measures were not significantly correlated with witness’ age, r(46) = .17, n.s., and r(46) = .27, n.s., respectively. The mean complexity scores of questions asked by the defense (M = 17.55, SD = 3.66) and prosecution (M = 16.66, SD = 3.66) were not signi?cantly different, t(45) = 1.33, p = .19. Again, the defense or prosecutions question complexity scores were not significantly related to age, r(46) = .18, n.s., and r(46) = .27, n.s., respectively.

So neither the defense nor the prosecution was better than the other at asking short, simple questions of child witnesses, and neither adjusted the complexity of its questions according to the age of the child witness.

The researchers sought a correlation between trial outcome and age of witness, wordiness of questions, and complexity of questions. Age of witness and wordiness of questions were not found to be outcome-predictive. But complexity of questions and, more specifically, complexity of defense questions, was a significant predictor of verdict:

Contrary to our prediction, defense lawyers who use more complex questioning were 2.16 times more likely to produce a guilty verdict for their client than those who use less complex questions. In contrast, the prosecution’s questions were not signi?cantly related to the trial outcome.

The researchers (Angela D. Evans, Kang Lee, and Thomas D. Lyon) then broke down the questions asked by defense lawyers according to the sort of responses children gave (I don’t know, no, no expansion, yes, yes expansion, open ended).

The model accurately predicted the trial outcome 82.6% of the time. Speci?cally, when the defense asked more complex questions leading to an I don’t know (b = 1.44, Wald = 6.29, p < .01, odds ratio = 4.22) or no-expansion (b = 2.53, Wald = .90, p < .01, odds ratio = 12.55) response from children they were more than 4 and 12 times more likely, respectively to receive a conviction verdict than those defense attorneys who used less complex questions leading to such responses.
. . . .
This suggests that juries may respond positively when children react to defense complex questions in certain ways. Simply responding with ‘yes’ or ‘no’ to complex questions was not related to a conviction, but replying with a ‘no’ and expanding on the response helped achieve a conviction. This may re?ect children’s ability to successfully resist defense attorney’s complex and leading questions. In addition, jury members may perceive a child’s response of ‘‘I don’t know’’ to a complex question as a sign of competence in their ability to identify questions they do not understand, rather than a lack of memory or a submissive response.

(For another take on the accuracy of yes – no – open ended answers by children and adults’ perception of that accuracy, take a look at this 2007 article by Laimon and Poole.)

Knowing juries, I suspect that they might see a complex question (we call those “Marcia Clark questions” around here) followed by an “I don’t know” answer not as a sign of the witness’s competence, but rather as an unsuccessful effort by the lawyer to trick the witness. What else is going on here?

First, jury members may feel the defense’s use of complex questions is unfair or a deliberate attempt to mislead the child witness. Perceptions of unjust questioning may lead jury members to feel protective of, or empathetic towards, the child witness. Another possible explanation is that defense attorneys may use more complex questions when the prosecution has a strong case in hopes to mislead or ‘‘trick’’ the child witness, thus more complex questions may occur in cases that result in a conviction verdict.

The researchers’ guesses are as good as two of mine — that juries might not like inappropriately complex questions asked of children (cause and effect), and that lawyers might ask such questions when they’ve got nothing else (shared cause).

There’s a third hypothesis. Terry MacCarthy tells us that cross-examination should consist of short, simple statements; it may be that complex questions asked of children are simply a sign of bad lawyering, which doesn’t often lead to acquittal.

Whether the Marcia Clark questions are the cause of the conviction or only a symptom of some other underlying problem, defense lawyers would do well to learn how to talk to children before taking on the weighty task of cross-examining them.

The researchers don’t seem to have tried to correlate trial outcome to the difference between defense question complexity and prosecution question complexity. It would be interesting, and might be helpful, to know whether, notwithstanding the similar mean complexity levels, in the conviction cases, the prosecution asked less complex questions than the defense.

If it’s not so — if prosecution cases in any given case are as complex as defense questions — then how do we account for a greater probability of conviction in that case? One answer is that “doubts about the accuracy of children’s memories do not always translate into doubts about the ultimate issue in forensic cases, which is whether the gist of alleged events occurred as described. . . . In other words, the concerns adults have about children’t cognitive competence are not strong enough to lead them to discount the probability that alleged events occurred when they actually read or view testimony, especially when children describe inappropriate touching.” (Laimon and Poole 2007.)

In still other words, people tend to give the complainant the benefit of the doubt in child abuse cases, which strengthens the case for a lawyer to learn the research not only behind child accuracy (what kind of questions will get the most accurate answers?) but also behind adult perception of child accuracy (what kind of answers will be perceived as most truthful) before charging in to question a child in court.

(Thanks again to future criminal-defense lawyer Joshua Zientek for his research assistance.)

Say It. Draw It. Act It.

Check out Vrij et al., Outsmarting the Liars: The Benefit of Asking Unanticipated Questions (PDF), from Law and Human Behavior (June 2008). Vrij notes that

If investigators interview individual suspects once (with no factual information about the case), they tend to rely more on noverbal cues than verbal cues to detect deceit. However, when investigators have access to multiple statements from different persons they change tactics. In such cases, investigators overwhelmingly tend to focus on speech content. In particular, they examine the consistency between different statements, believing that consistency implies truth telling and inconsistency implies lying.

One of the areas of human knowledge that we should be scavenging to become better trial lawyers is that of interrogation. Test this: for “investigators” in the above excerpt, read “lawyers” or “juries”.

The Vrij article is an exploration of consistency between multiple witnesses to the same events.

The only study published to date examining the consistency between statements provided by pairs of truth tellers and pairs of liars found that liars were more consistent than truth tellers. The high consistency amongst liars can be explained by the argument that liars prepare for the interview.

The method that the Vrij article investigates is the “theory-based interviewing strategy” of “asking unanticipated
questions” (other such strategies are “withholding information” and
“imposing cognitive load”) to pairs of witnesses.

Liars’ “agreeing upon a story” strategy has weaknesses that investigators can exploit. Specifically, this strategy is limited in its utility: It may work, but only if liars anticipate correctly the questions that will be asked. If investigators ask questions that they liars did not anticipate, the liars will not be able to use their planned answers. Answering such unanticipated questions may yield inconsistent answers. . . . Asking unanticipated questions about central topics should therefore give rise to tell-tale inconsistencies amongst pairs of liars.”

(Again, read “lawyers and juries” for “investigators”.)

In the experiment, pairs of liars and pairs of truth-tellers were asked unanticipated spatial questions (“e.g., ‘In relation to the front door and where you sat, where were the closest diners?'”), asked unanticipated temporal questions (“e.g., ‘In which order did you discuss the different topics you mentioned earlier?'”), and asked to draw the layout of the restaurant at which they purportedly had lunch.

The questioner (who was not informed of the hypothesis of the experiment) was able to correctly classify 60% of truth tellers and 80% of liars on the basis of correspondence in spatial questions, and able to correctly classify 80% of truth tellers and 75% of liars on the basis of correspondence in their drawings.

My experience is that if drawings are good, then reenactments are better. I found this quote here:

Alfred Adler, a psychologist who collaborated with Sigmund Freud, said:
“Trust only movement. Life happens at the level of events, not of words. Trust movement.”

Two liars who can relate an untrue story convincingly verbally are unlikely to be able to be able to draw it and seem truthful. I’ve found that they are even less likely to be able to reenact the events and seem truthful.

Putting events into action works to unmask the lying single witness as well as the inconsistent pairs of witnesses — the nature of human memory is such that putting things into action often reveals the truths that people are able to avoid speaking aloud. We don’t have to be conscious of this to apply it, so jurors are much more likely to be able to detect the lying witness through watching her actions than through listening to her words. They’re also much more likely to correctly classify the truthful witnesses through their actions than through their words.

So have witnesses draw you a picture and put their stories into action, but only if you want the jury to share your opinion of their truthfulness.

(Thanks to Defending People reader, law student, and future Houston criminal-defense lawyer Josh Zientek for his research assistance.)

Book Review: Your Witness

Richard “Racehorse” Haynes is the only person I know who has a nickname for his nickname. He’s “Racehorse” to the world and “Race” (or just “Richard”) to the his “brothers and sisters of the bar”.

I mention Richard because there are a very few lawyers — and Richard is one of them — whose tales a lawyer (no matter how smart, highly trained, talented, and experienced) will and should listen to for as long as they are around and willing to talk.

Then there are the rest of us. It will surprise no reader of this blog that trial lawyers love to talk about themselves. At any continuing legal education program you’ll hear a string of war stories from the lectern, and more at the bar afterwards. Most of these stories are bearable in small doses. The bearability of the stories varies with the talent of the teller, the quality of the stories, and of course the quality of the Scotch.

Suppose that you gave a trial lawyer three hundred pages to fill. Chances are that she’d fill them with accounts showing her brilliance — most trial lawyers are driven by ego and the need to prove something to someone.

But the best war stories are those that didn’t turn out well for the teller. We’d much rather hear someone tell about how he fought the good fight and got his butt kicked anyway, than hear about how he did everything right. If you were at the bar with another lawyer and he could talk about nothing but his own brilliance, you’d be making your excuses within minutes. It might make good marketing (maybe not), but it doesn’t make good narrative. Three hundred pages of self-aggrandizement wouldn’t make for a very good read.

Suppose, instead, that you gave fifty lawyers an average of six pages each, and asked them to write about a single topic, the most difficult trial advocacy skill: cross-examination. You’d wind up with bearable chunks of self-aggrandizement from those lawyers without the backbone for self-deprecation (and therefore for wisdom) as well as too-short chunks of wisdom from those lawyers without a weakness for self-aggrandizement. You’d have to try to strike a delicate balance because what is bearable bluster once or twice can quickly become too much.

And that pretty well describes “Your Witness: Lessons on Cross-Examination”: an attempt to strike a delicate balance. A beautifully laid-out book with lots of white space, Your Witness is a collection of articles (50 of them) about cross-examination by “great Chicago trial lawyers”. It’s dedicated “To all those who enjoy a good courtroom story”, and there are certainly enough good courtroom stories to make it worth the trial lawyer’s time. There are also several stories that no amount of single-malt could possibly redeem.

Contrast this (the voice of R. Eugene Pincham from Chapter 4):

How to cross-examine? The basics are the same in every courtroom I have been in over the past 50 years.

Well, first of all, you must recognize that law school and your law degree and your law license have made a fool of you. You begin to think that you’re the smartest person in the courtroom — that’s what your law license and your law degree do to you.

. . . .

I have my wife come to court with me when I’m trying a case. I know that these big-time lawyers don’t do that, but I ain’t that big a time. Why? Because as a lawyer, you can’t see everything. Even a law degree doesn’t give you the ability to see behind yourself. My wife sits in the courtroom in an inconspicuous spot and she’s the eyes in the back of my head, and I can tell you, I have won many a case because of something you saw or something she said to me about a juror that I didn’t see. She will critique me when we recess, when we go out in the hall. She doesn’t tell me how much she loves me because I know that already. Instead, she tells me how I am messing up.

To this (written by Robert W. Tarun, in chapter 6):

Cross-examination is the greatest challenge a trial lawyer faces. it is prepared for as if a science and performed as an art. Above all, cross-examination must serve one of two overriding trial objectives: either proving one’s case and theory or weakening or disproving the case and theory of an opponent. If a cross-examination will not further one of these objectives, there is no need to take on the witness.

. . . .

At this point I finally conceded to the judge that Fuller had been destroyed in the jury’s eyes. It had happened because I was watching Fuller’s body language and listening to his hurried staccato admissions during cross-examination. It was the result of thorough preparation — but probably more importantly, careful watching and listening.

Now, y’all know that I’m a big proponent of listening as a trial skill, but tell me: is there one of those two guys whom you’d like to hear more from, and another whose eye you’re going to avoid catching when he walks into the bar?

There’s something in the book for everyone: great tales from the real deal (including Terry MacCarthy), empty talk from former prosecutors (Scott Turow notes in the foreword that “Cross-examination, along with closing argument, is the high art of trial, and prosecutors, generally speaking are not experts”) talking about the mummery that passes for cross-examination in cases in which nobody’s freedom is at stake, lots of lawyers of all stripes bragging about their prowess, and a little bit of Chicago legal history.

For all my grousing about the asshattery in the book, I did read it straight through — both the gold and the dross had me craving more gold. And I often found gold in surprising places: the outstanding lesson of the book for me came from civil litigator Peter C. John’s chapter 13, on “jury ego”. Cross-examination can’t be learned from a book, so the best a book can do is paint a picture in broad strokes of different issues and philosophies in cross-examination. This, Your Witness does admirably.

Windy Pundit asked last month about who to hire for a (hypothetical) criminal case in Chicago. In Your Witness many of the writers give glimpses of their personalities; it might be a good place for Windy to start. Who else is the book for? Trial lawyers who are willing to improve their craft — they will find enough nuggets of cross-examination wisdom to make the book worth the read — and anyone who enjoys hearing lawyers talk about themselves.

I’m afraid the second group is probably even smaller than the first.

(A publicist sent me a review copy of the book. Scott Greenfield and I are apparently on the same mailing list. And what blogger / trial lawyer can resist a free book? Here’s his review.)

“Your Witness: Lessons on Cross-Examination” (Law Bulletin Publishing Company)

Racehorse Haynes in Trial

Richard “Racehorse” Haynes is, as we say in Texas, one tough sumbitch. He tried 11 jury trials last year (did you? I sure didn’t), and he’s in trial again now — at age 82.

A reader writes:

I thought that your readers might like to know that opening statements start tomorrow at 9 am in United States v. Nguyen. Mr. Nguyen is accused of being part of a multi state drug and money laundering conspiracy. He is represented by Racehorse Haynes. The government is represented by Joe Magliola. Take care and keep posting.

The trial is in U.S. District Judge Melinda Harmon’s court in Houston. Richard’s client is the last man standing; expect lots of cross-examination of snitches. Richard doesn’t rush a cross-examination, so this could take a while.

The Motorcycle Rule of Cross-Examination

When cross-examining an unknown witness, you must observe the Motorcycle Rule. This is the rule that kept me alive through years of riding a motorcycle in Houston traffic (for a while, I had no usable car, and rode everywhere). The Motorcycle Rule, for those not familiar with it, is this:

They are all out to get you.

On a motorcycle, that means that you remain vigilant all of the time, and never assume that the other driver is going to do anything other than try to hit you. Pretending that the other driver is trying to hit you, you make it impossible for him to do so (or as near impossible as you can while still making your way to your destination.
In the courtroom, the Motorcycle Rule means the same thing: you make it as near impossible as you can for the witness to hurt you, while still telling your story to the jury.
An illustration: today I cross-examined a witness in my self-defense case. After the cross-examination, the court took a break and I visited with the detective. I told him that I had enjoyed it, and he said it was “interesting” and that he’d been looking for me to “open the door” to certain opinions he had — for me to give him reason to expand his testimony beyond that which he had been permitted to say on direct. I had followed the Motorcycle Rule, though, and had brought out my client’s story through the detective without opening the door giving him an opportunity to make things worse.
Until they demonstrate otherwise, they are all out to get you.

Crossing the Doctor — Gathering Your Pebbles

So you chose a narrow field of inquiry on which to cross-examine the State’s expert, and you gathered a list of journal articles that might relate to the narrow field of inquiry. What next?

Find a good medical library. Any medical school should have a a library that has most of the publications we’ll be looking for; if you don’t live anywhere near a medical school or the school doesn’t have a good collection of journals, there are services that permit you to order the articles over the internet. There are two disadvantages to doing so: first, it’s expensive; and second, you’re not likely to get the articles in the exact form that will be most useful on cross-examination.

Before going to the library, you may be able to get a good idea of what they do and don’t have by looking at their online catalog. Here, for example, is the Texas Medical Center Library catalog. While you’re at it, do a search for the general topic of the doctor’s practice so that you know where to find the textbooks on the subject (for example, pediatrics in the WS 100s). Remembering that you’re not going to become an expert on the doctor’s broad field, you may find that the textbooks provide some ammunition in addition to that contained in the journal articles. Also, you may need to refer to a basic text to put some of the concepts in the articles into context. (A certain measure of scientific and technical curiosity, along with the appropriate dictionary, is vital to the process of cross-examining an expert witness.)

When you get to the library, scope out the copier situation. If you have to buy a copier card, do that before you start gathering your articles. You don’t want to get a pile of books in your arms only to discover that you don’t have the currency required to shoot copies.

You’ll have some articles that, judging from their abstracts, are must-reads and you’ll have some that are merely possibilities. Skim the latter at the library; some you’ll be able to discard. If you’re not certain whether something is helpful, shoot a copy of it.

When you copy an article, make a copy of the journal’s cover, a copy of the table of contents page, and a copy of the entire article itself. The journal’s cover will be vital to the first part of your cross-examination of the doctor; thus a downloaded copy of the article will be less useful than a photocopy from the library.

While you’re there, skim the textbooks on the general subject. If they contain sections that cover your narrow field of inquiry, shoot copies of them as well (the cover of the textbook, the copyright page showing the publication date, the table of contents page showing the section you want, and that section).

Coming soon: what do I do with all of these copies?