May 21, 2024

Podcast - The "Why" of Cross-Examination

The Trial Lawyer's Handbook: A Courtroom Preparation Podcast Series

In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small covers the crucial role of cross-examination and its impact on our justice system. In the episode, Mr. Small explains the importance of addressing the "why" before diving into the "how" of this process.

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Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.

Dan Small: Oh, the drama of cross-examination. Jack Nicholson shouting "You can't handle the truth!" My Cousin Vinny asking "Mrs. Riley, how many fingers am I holding up?" But where does all this drama come from? I've traveled to Uzbekistan to talk with judges and lawyers there about the adversarial system. Why have cross-examination? It seems an odd question, given our justice system's longstanding and fundamental reliance on the process. Yet before we discuss the "how" of cross-examination, we need to consider the "why."

This process is, after all, very unnatural. You wouldn't subject a friend or a coworker to intense grilling before deciding whether to believe something they told you. Why do so here? I learned that the adversarial system is not the system of justice in Uzbekistan. Instead, it has a version of the Byzantine era inquisitorial system, in which the judge is responsible for determining the truth, and questioning of witnesses by opposing counsel is virtually unknown. They are looking for ways to improve their system, but they remain skeptical as to whether cross-examination is a legitimate fact-finding aid or a movie stunt. There is, after all, only one truth. Why does a judge need lawyers interfering with his search for it?

What underlies our acceptance of cross-examination in the U.S. are several basic beliefs

First, is the belief that truth is often not that simple. That there is often more than one version, or at least more than one perspective. The Greek fable writer Aesop, writing in the sixth century B.C., put it remarkably well. He said, "Every truth has two sides. It is well to look at both before we commit ourselves to either." And so we believe that the fact finder ought to be presented with both sides, and that the most effective presenters are logically the advocates for each side. Part of that process is allowing both sides to question the witnesses who are the most important source of information.

Second, is our recognition that human beings are not perfect. All people make mistakes, and some even lie. Because those mistakes and lies may favor one side of a dispute, it's the advocate for the other side who has the strongest motive and understanding to bring them to light. Cross-examination is one of our system's essential means for testing the evidence, and thus finding the truth.

It's written into the Constitution in the Confrontation Clause of the Sixth Amendment, and we could not imagine having a trial in our system without it. Yet we need to understand that others see the flaws in what we take for granted, that it can be abused or misused, that it can at times distort or distract from the truth, and that it can detract from the central truth-finding intent of the process. Make it too much of a show or too much about scoring points, not finding the truth.

We need to take the time to understand cross-examination, to respect its value and its limits, and to learn how to do it effectively and properly. In the words of the great John Henry Wigmore, "Cross-examination is, beyond any doubt, the greatest legal engine ever invented for the discovery of truth." Although cross-examination can be intimidating or even traumatic, especially to a victim of a crime, it presupposes that the witness is telling the truth. Unfortunately, human beings often make mistakes and sometimes lie, as I said. So until human beings become substantially more perfect, which seems unlikely, cross-examination will be necessary to ascertain the truth. Indeed, if justice can't be achieved without a means to establish the truth, then justice can't be achieved without the right to cross-examination.

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