As some of you might have heard, there was a family style civil war raging in the Blagojevich defense camp this week between a young firebrand and a sage journeyman. The firebrand (Sam Adam Jr.) wanted to throw caution into the wind and have Blago testify, but the journeyman (his father, Sam Adam Sr.) said that this case would rest without hearing from the infamous governor. The drama was palpable and the media was salivating. Think Tom Cruise vs. Paul Newman in The Color of Money; or Tom Cruise vs. Robert Duval in Days of Thunder; or Tom Cruise vs. Craig T. Nelson in All the Right Moves; or pretty much any 1980’s Tom Cruise movie. (You’re welcome Sam Adam Jr.)
Father versus son in a high-profile trial with a big-haired defendant who has ties to both the oval office and Donald Trump's reality TV office? Some might say that this sounds too good to be true. Some might even say that this sounds staged to increase publicity. Sadly, much like how many licks it takes to get to the center of a Tootsie Roll Tootsie Pop… the world may never know.
However, it brings up the interesting questions associated with putting witnesses on the stand (or in the deposition chair) who are likely to be liabilities. While the media typically focuses on whether a criminal defendant testifies in his or her own defense, this is a luxury that most witnesses do not enjoy. The fact is that witnesses who are friendly (but “unhelpful”) are a common problem for civil and criminal attorneys in all types of cases.
Thomas Fuller wrote, “A fool wanders, a wise man travels.” In seven words, I believe this quote sums up one of the key differences between helpful and unhelpful testimony. Those witnesses who “wander” and try to verbally meander into what they think is “the right” answer are in trouble. Those witnesses who focus on clearly understanding their departure point (the question) and efficiently “traveling” to their destination (the answer) fare much better. You should always ask yourself: Is this witness reminiscent of a college student backpacking through Europe or a professional who is traveling to an appointment with a client?
While both direct and cross examinations can be dangerous for “wandering” witnesses, clearly the cross is the most perilous journey. Dr. Louise Ellison and Dr. Jacqueline Wheatcroft at the Universities of Leeds and Liverpool have scientifically demonstrated this danger and tested solutions.
In their research (“Exploring the influence of courtroom questioning and pre-trial preparation on adult accuracy”), Ellison and Whetcroft showed mock-witnesses a simulated crime and then recorded subjects' reactions to two levels of scripted cross-examination questioning: hard-cross and soft-cross. The hard-cross was filled with legalese and tricky phrasing (double negatives, leading statements, etc.), while the soft-cross had relatively straightforward questions. As has been demonstrated before, witnesses were significantly less accurate with the hard-cross.
However, they then went a step further and repeated the test with new subjects, but provided all witnesses with a simple pamphlet entitled “A Guide to Cross-Examination.” In the paper, it was described as follows:
“…this document contained a short explanation of the two-fold function of cross-examination - to test evidence and elicit information favourable to the crossexaminer’s case - and practical guidance to assist participants when answering questions which included directions to listen carefully to questions, to ask for clarification if a question was not fully understood and to answer all questions truthfully. The leaflet also included an example of a leading question, a question containing a double negative and a multipart question, and, in reference to leading and multipart questions, advice that participants should not agree with a suggestion ventured by the cross-examiner unless it was accurate.”
Obviously, I wouldn’t be blogging about this paper if the pamphlet did not have a significant effect. Those witnesses with preparation made significantly fewer errors than those without. (If a pamphlet can enhance skills, imagine what real witness prep can do!)
However, what was most interesting was the increase in requests for clarification by participants. Research has shown that witnesses are often too intimidated to ask lawyers to clarify their questions. This study demonstrated that simply reading an informational pamphlet before cross-examination caused the rate of requests for clarification by witnesses to jump in both groups. Asking for an attorney to be clearer is one of the most powerful defenses while being cross-examined and witnesses seldom use it. Thus proving the ancient Chinese proverb: “He who asks a question is a fool for a moment. He who does not ask a question is a fool forever.” Somehow I can’t see Blago pausing long enough to listen to the questions, much less asking for them to be clarified.
(UPDATE: Blago will NOT testify. I just heard a thousand news anchors drop to their knees and scream “NOOOO!!!” Thanks to ASTC President Beth Foley for inspiring this blog.)
Blogger: Matt McCusker