Chapter 6

• Jurisdiction: United States

Chapter 6 Cross-Examination Visuals

"Never, never, never, on cross-examination ask a witness a question you don't already know the answer to, was a tenet absorbed with my baby-food. Do it and you'll often get the answer you don't want, an answer that might wreck your case."

Harper Lee, Atticus Finch in To Kill a Mockingbird

A. The Value of Visuals for Cross-Examination

Visuals can be extremely effective weapons for cross-examination. This chapter explains how concession visuals can be used to gain concessions supporting your case theory and undermining the other side's case theory. It also discusses how to impeach a witness with visuals. Techniques for getting the most out of visuals during cross-examination are illustrated with examples from criminal and civil cases.

Nothing can be more devastating to a witness's credibility than to be caught in a lie or misleading statement with irrefutable visual evidence. This is what happened in an 1858 murder trial when lawyer Abraham Lincoln cross-examined a prosecution witness. Lincoln represented William "Duff" Armstrong, who was charged with murdering James Metzker on August 29, 1857. At the trial, Lincoln cross-examined witness Charles Allen, who testified on direct examination that he saw Armstrong shoot Metzker. Lincoln's cross-examination locked the supposed eyewitness into testifying that he saw the shooting at 10:00 p.m. by moonlight.

Judge J.W. Donovan, who presided over the trial, described what happened next in his work Tact in Court as follows:

The interest was now so intense that men leaned forward to catch the smallest syllable. Then the lawyer drew out a blue covered almanac from his side coat pocket—opened it slowly—offered it into evidence— showed it to the jury and court—read from a page with careful deliberation that the moon on that night was unseen and only arose at one the next morning.¹

Lincoln's cross-examination destroyed the witness who, realizing that he had been caught in a lie, confessed to having killed Metzker. The visible proof—the almanac—exposed the lie for all to see.

B. Preparing the Visuals

Preparation of a cross-examination with visuals begins with an understanding of the three purposes of cross-examination. First, cross-examination can be designed to gather those concessions that support your legal and factual theories of the case. For instance, if you represent the plaintiff in a breach of contract case and you are cross-examining the defendant whom you claim breached a particular clause in the contract, you could project that clause in the contract onto a screen in the courtroom and have the witness concede that it was part of the contract he signed.

Second, cross-examination can be aimed at impeaching the witness. For example, during the cross-examination of a witness, you could introduce a certified copy of a judgment and sentence showing the witness's prior felony conviction and ask the witness whether the signature on the judgment and sentence is hers. The visuals you gather or create should serve one of these two purposes.

Third and finally, cross-examination can help reinforce the structure and internal logic of your key arguments through the use of sign-posting and other types of priming in the questions. It is often said that trial is a battle of salience, meaning that it is a battle for control over what jurors remember most, and cross-examination can play a significant role in winning that battle for you and your client.

How you gather and create visuals for cross-examination is identical to the methods described for accomplishing those tasks for direct examination at pages 79-80.

C. Preparing Yourself

1. Visit the Scene and Know Each Visual

To prepare yourself for cross-examination with visuals, you approach it in much the same fashion as you would to prepare yourself for direct examination. Visit the scene (see pages 80-81). Examine each exhibit and visual (see page 81).

2. Marshal Your Exhibits

You will also need to marshal your exhibits for the court just as you would for direct examination (see pages 82-83). However, how you prepare by storing your visuals and getting ready to retrieve them in court is different from direct examination. For direct examination, you can plan to introduce exhibits in the order you choose because the witness is yours and you control the direct examination. For cross-examination, you need to be more flexible and prepared to produce any visual you wish when you wish. This is where nonlinear software, such as Sanction or TrialDirector, prove invaluable.

PowerPoint is certainly capable of a nonlinear approach but requires a little more legwork in terms of building a menu slide and inserting hyperlinks that allow you to jump back and forth to different slides. Overall, TrialDirector or Sanction will give you the greatest flexibility to adjust on the fly.

D. Gaining Concessions

The primary purpose of cross-examination should be to gain concessions that support your case theory for at least three reasons. First, a concession from an adverse witness that supports your case theory is at least, if not more, valuable than eliciting the information from your witnesses. Jurors will give much more weight to admissions that go against the witness's own interests. Second, it is easier to obtain a concession from a witness than it is to impeach. Third, if you are able to get the adverse witness to make important concessions, you may be able to turn that witness into your own witness and not need to impeach.

The key to getting concessions that support your case is to ask: What must this witness admit that supports my case or undercuts my opponent's case? The key word in the question is "must." The witness must admit it because it is true. You can prove it is true by either direct evidence, circumstantial evidence, or just plain common sense. Therefore, the concession visuals that you should use during cross-examination are those that support your case or undercut your opponent's case theory and establish what the witness cannot deny.

The Boudwin v. General Ins. Co. of America² appellate opinion provides an illustration of how to use a visual to gain concessions. This was an appeal from a jury verdict for the defense in an auto accident case. At trial, two plaintiffs claimed physical disability and loss of enjoyment of life. The appellate court had no difficulty upholding the jury's decision that plaintiffs were not entitled to any damages because "(t)he record clearly shows that neither Jessi nor Lee have experienced any significant limitations or impairments as a result of the injuries they sustained in the May 31, 2008 accident."

Both plaintiffs testified on direct that they were in pain after the accident. On cross, defense counsel cross-examined them with their Facebook pages. The court described the cross of Lee in this way:

. . . Lee acknowledged several entries from his Facebook page where he reported frequently "working out" and also playing sports such as basketball, tennis, "ultimate Frisbee," and softball, sometimes engaging in multiple sessions of sporting activities in a single day. He further acknowledged that he wrote on his Facebook page that he had participated in a softball tournament in the month before trial. . . .

As demonstrated in this example, social media has become an outstanding source for evidence that forces witnesses to admit certain facts. It is not unusual these days for witnesses to routinely post comments on social media that undermine their claims or arguments at trial, and jurors often treat these posts as moments of pure honesty on the part of the witness.

E. Impeaching the Witness

For lay and expert witnesses, there are seven areas for impeachment that lend themselves to the use of visuals on cross-examination:

1. Prior inconsistent statement,
2. Contradiction,
3. Prior conviction,
4. Lack of personal knowledge,
5. Improbability,
6. Bias and interest, and
7. Learned treatise.

While the first six areas of impeachment apply to lay and expert witnesses, the seventh area—impeachment with a learned treatise is limited to an expert witness.

In this section, we discuss these six areas of impeachment that are especially suitable to the use of visuals, and we offer case examples of impeachment with visuals.

1. Prior Inconsistent Statement

Ordinarily a witness's prior inconsistent statement is admissible into evidence when it is not offered for the truth of the matter in the statement, and thus, it is not hearsay. Rather, the statement is offered to impeach the witness by showing that the witness has made a conflicting statement.

Impeachment with a prior inconsistent statement is particularly effective if done correctly. First and above all, never try to impeach a witness with a prior inconsistent statement on a trivial matter; jurors are likely to be offended because you are wasting their time. Furthermore, this can suggest desperation on your part, as jurors might be quick to conclude that you are reaching for anything because your case is so weak. Second, before you begin your impeachment with the prior statement, lock the witness into the testimony that the prior statement contradicts. It is a good practice to not tip off the witness to the fact that you are setting the witness up to be impeached with a prior statement. Keep your objective hidden.

Do you need to show the prior statement to the witness? Federal Rule of Evidence 613(a) on Witness's Prior Statement provides that you do not, as follows:

Showing or Disclosing the Statement During Examination. When examining a witness about the witness's prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party's attorney.

Third, as Rule 613(a) permits, you may refrain from showing the prior statement to the witness at this juncture. If you do show it to the witness, the witness may well attempt to revise his...