When it comes to cross-examination, I consider myself a minimalist. I figure out what I need from the witness. I tell my version of the story. And I ask the witness to agree with me.
Some lawyers have the witness repeat the testimony from direct. This is inconceivable to me. It was bad enough to hear the bad facts the first time. Why would you ever want to put them back in front of the judge or jury?
Some people repeat the testimony from direct while lacing their questions with skepticism or sarcasm. I think in particular of Cristina Gutierrez. Gutierrez was Adnan Syed’s lawyer in the murder case made famous by the Serial podcast. My colleague Howard Margulies assures me that, back when he shared an office with Gutierrez many years ago as a public defender, she was a first-rate lawyer. But that was before she was stricken with disease and debt. Every question she asked of the government’s witnesses in Syed’s case was dripping with sarcasm.
When warranted, skepticism or sarcasm can be effective but even then, only in small doses. Tone does not convey on the record. This is important for appeals. More importantly, it is rarely effective. Like me, many people are contrarian. We don’t like to be told how we should be reacting. If you tell me I should be skeptical, even outraged, I will look for a reason to prove you wrong: What are you talking about? I don’t think the witness’ testimony is that far-fetched.
My colleague here in D.C., Bryan Brown, does the whole Peter Falk/Colombo thing: “Officer,” he says. “Let me see if I understand you correctly.” He gives you the impression that, of all the people in the courtroom, he is the person who most wants to believe the witness. We are right beside him, rooting for the witness. Like him, we are repeatedly surprised by – and disappointed with — the witness’ vague or contradictory answers.
The final risk of trying to do too much with cross-examination is that sometimes you can end up making the government’s case for it. I have learned this from bitter experience. The burden is on the government to prove its case beyond a reasonable doubt. Don’t fill in holes for the government. Sometimes the best thing – also often one of the most satisfying things – is to say “no questions, your Honor.”