Podcast - Finding the Truth

Dan Small: Welcome to another episode of "The Trial Lawyer's Handbook." In this episode, we'll continue discussing the mock trial case State v. Faulkner and how we used it for my pro bono work in Uzbekistan, as well as use it to reflect on the Farmers Export grain elevator explosion and the Appling County corruption cases that we've discussed in prior episodes.

These episodes are all based on my latest ABA book Lessons Learned from a Life on Trial. If you missed or want to revisit the Farmers Export grain elevator explosion case in which 18 workers were killed, I discuss it thoroughly in episodes 84 through 92. Similarly, for an in-depth overview of the Appling County corruption case involving south Georgia sheriffs, deputy sheriffs and FBI agents, visit episodes 93 through 99. 

The Confrontation Clause of the Sixth Amendment to the U.S. Constitution requires that, in all criminal prosecutions, the accused shall enjoy the right to be confronted by the witnesses against them. I'm not sure how much they enjoy it, but they have that right. And the idea of cross-examining witnesses to find the truth goes back much further. A wonderful early example is actually in the Bible, in the Book of Daniel, chapter 13, recounting the story of Susanna and the elders. Two old men who had attempted unsuccessfully to seduce Susanna, a beautiful married woman, thereafter bore witness to the people of their tribe that she had accepted the attentions of a young man. The people were about to put her to death when young Daniel intervened, saying, "Are ye so foolish, ye children of Israel, that without examination or knowledge of the truth, you have condemned a daughter of Israel?" He then questioned the two elders out of each other's presence — a wonderful precursor to today's witness sequestration rules — about where the alleged event had taken place. And when they gave conflicting answers, Susanna was absolved and the old men were condemned. 

Cross-examination is at the heart of our adversarial system. In addition to criminal cases, many civil cases are decided, at least in part, based on cross-examination of a key witness. Indeed, many depositions are themselves a form of cross-examination, as they offer a chance to challenge an opposing witness. I recently conducted an interview pursuant to an agreement of the other side's witnesses, and counsel challenged me that I was cross-examining them. I said, "Well, if they start giving honest answers, I'll stop cross-examining them."

In the Farmers Export case, the cross-examination of the defense expert and the defense bridge witness, described in earlier episodes, were major turning points. In the Appling County case, cross-examination delivered the "good lickin'" that the jury felt defendant AZ Jackson deserved. And once he got that "good lickin,'" they said that was enough, and they let him go.

But in Uzbekistan, there was little experience with or understanding of cross-examination in a trial setting. And pretty much any questioning of witnesses was a one-way street: the government questioning witnesses as part of its investigation. So when we explained that the mock trial was a criminal case in which both sides would call two witnesses each and both sides would cross-examine the other side's two witnesses, that was very new and surprising.

We'd already talked about cross-examination, and we went through the case file extensively to make sure that everyone understood what would happen. Two witnesses each, two each side. Then we split them up into their trial teams so they could prepare for trial, including figuring out who on each team would be handling each of the two cross-examinations.

Despite the preparation, it's hard to overcome a lifetime of experience in two days. I can promise you the moon, but will you really believe me? Defense counsel there at that time had little power to do anything more than hold their client's hand as they went off to jail. Putting on witnesses? Questioning witnesses? Not possible in that system as it was. Promise me the moon. 

The night of the second day of the workshop, the night before trials, I was sitting at dinner with my interpreter and a table of defense lawyers. At one point in the conversation, one of the brightest and most sophisticated lawyers in the group turned to me and, with grave doubt, said to the interpreter, "Mr. Small, we're not really going to ask questions of a government witness tomorrow, right?" I was surprised by her question and even more by her complete disbelief. Since that was what we've been talking about for two days, I replied, "Yes, as we've discussed, both sides will call two witnesses, and you should be prepared to cross-examine the government's two witnesses. That's what will happen."

And after a difficult pause, this mature, intelligent lawyer started to cry. "I'm sorry for my tears, Mr. Small," she said, "but do you think that could ever happen in my country, that a defense lawyer could actually ask questions of a government witness?" It was a difficult moment for me, and I had to be honest with her. "I don't know," I said. "I know that seems like a long way away, and I'm not here from the U.S. to tell another country what they should or should not do, but I know there is interest in this. I believe in it, and we're here to show you what some of the options are, to show you what's possible in the hope that you will consider the choices and choose what's best for Uzbekistan." And she wiped away her tears and said, "Thank you so much for coming here to help us."

The next day, in mock trial, she did the first cross-examination of a government witness that I think had ever happened in Uzbekistan. And she was marvelous. We take so much for granted that we shouldn't. Lessons learned.