Book Excerpt: Cross-Examination
Written by Max M. Houck, Christine Funk, Harold A. Feder   

From the book, Successful Expert Testimony.

MOST CROSS-EXAMINATION “THREATS” exist only in the minds of the novice witness. Experienced experts are aware they have no dog in the fight. They come to court prepared, with their conclusions based on earnest effort, experience, testing, and data. Being questioned about their findings should not be cause for consternation.

That said, there are specific things you can do to make yourself more ready and less vulnerable to cross-examination. Your résumé must accurately reflect what you have actually accomplished, not what you wish you had done. Do not exceed the bounds of your own expertise. In taking on assignments and in answering questions, do not venture beyond the areas in which you are professionally qualified. The temptation is great to move into areas in which you are not qualified. Your image and credibility will be enhanced by sticking to your field of knowledge, training, and experience. Whatever investigative steps you have taken must be completed and fully documented. The thoroughness of your preparation to testify will be exemplified by your direct examination. Accurate investigation creates a dense fabric of fact that becomes difficult to penetrate on cross-examination. Further, strict adherence to scientific principles, regardless of whose position they favor, often reduces the length of cross-examination.

Consider:

Q: Is it possible another gun was used to fire this bullet?
A: It is highly unlikely.

Q: But it’s possible?
A: I can’t imagine that’s the case.

Q: Are you testifying this bullet could only have been fired from this gun to the exclusion of all other guns on the planet?
A: Well, I didn’t say that…

Q: So it’s possible that another gun fired the weapon.
A: Yes.

This lengthy exchange could have been avoided if the expert had just answered the question with a “yes” the first time. Experts who wish to be considered independent need to display this independence at all times.

Cross-Examination: Friend or Foe?

Most forensic experts dread cross-examination, and with good reason: it can be very unpleasant. In reality, with planning and patience, even a vigorous cross-examination can be weathered with your integrity and results intact. If you are believable, stick to the facts you know and can support, and have done your homework, your abilities will be obvious. Psychological persuasion conveyed by body language, repetition of theme, dress, and demeanor all add to your positive image. The smooth, solid presentation you made on direct examination must be maintained throughout cross-examination. Similarly, the respect shown to one side must be shown to the other. This holds true both in your preparedness, your attitude, your demeanor, and your willingness to answer the questions posed.

Witnesses who are certain of their own effort and preparation with the data to back it up are generally questioned cautiously on cross-examination. The cross-examining attorney quickly senses your truthful and positive answers. Part of the stimulation of a classroom setting is the ability to field questions from students. The skill with which those questions are responded to is often the mark of a great teacher. Your function as an “expert witness teacher” is merely an extension of that exercise. The cross-examiner who probes your qualifications, preparation, conclusions, and opinions will press you for answers.

One of the major opportunities for attorneys in cross-examination is to highlight their theory by reviewing prior testimony. In some cases, prior testimony may be used to further make the point. See below:

Q: You were trying to imply to this jury that that imprint was a Silga sole, weren’t you?
A: No. I testified I couldn’t determine that.

Q: Oh. Okay. You went a little bit farther than what you testified to in the criminal case, didn’t you?
A: No. I said exactly the same thing that I said in the criminal trial.

Q: All right. Let’s go to page 32842 of the criminal testimony, lines 12 through 17. 32842.
(Reading)

Q: My understanding is, there was insufficient detail present to call it one way or the other as to those marks, whether they’re a footprint or not, in the Bronco?
A: I couldn’t associate them with the sole to sole, yes.

Q: That was your answer, right?
A: Yes.

Q: And you weren’t trying to imply to this jury that that was a Silga sole when you put the overlay over the board?
A: No, I was not.

—William Bodziak, O.J. Simpson civil trial, November 27, 1996

Here, the witness is confident in his wording and what he meant; this kind of confidence comes from experience, good methods, and a cool head.

During your professional career, you might have written articles, books, or reports. In addition, you might have testified in deposition or at trial on prior occasions. Your personal library should include reprints of every article you have ever published and every deposition or court transcript of your testimony. The attorney for whom you are testifying is entitled to know about your prior opinions. In addition to alerting you and the parties for whom you act to areas of cross-examination, your prior writings and testimony can supply positive support or rebuttal material for cross-examination. When asked about prior testimony, where the attorney suggests you testified differently, follow these three simple steps:

1) Don’t panic.
2) Take the time to review the facts and testimony referenced.
3) Consider whether the current case is the same as or different from the prior case.

All of this should be done prior to responding to the question.


This article appared in the Fall 2018 issue of Evidence Technology Magazine.
Click here to read the full issue.

 
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