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Thursday, September 28, 2006

The Neon Sign Reads: REVERSIBLE ERROR

A Michigan lawyer was held in contempt and fined for phrasing his cross examination questions as declarative statements, a perfectly legitimate technique. (See Pozner & Dodd and precedents below). Now he's being forced to appeal.  Here is how the cross proceeded:   

Q: Okay. There  was never a formal partnership actually done up?
A:  No.
Q: And, in  fact, Mr. E was treated more or less like an employee by the company?
A: In what  respect?
Q: He was paid  weekly?
A: That was  what was agreed upon because he didn't have any money.
Q: And, you  were paying him five hundred dollars per week to go out and do all this towing?
A:  Correct.
Q: And, as you  indicated, at some point you stopped paying Mr. E?
A:  Yes.

This method of cross-examination continued until the following question was posed by defense counsel:
Q: Okay. You made your first phone call to Mr. E on the 16th, September 16?
A: I believe - - yes.
THE COURT: Mr. M, I'm not going to warn you again. From now on every time something comes out of your mouth that's worded as a statement, I'm fining you  one hundred dollars. Is that clear?
MR. M: Your Honor, it's- -
THE COURT: Start them with; "were you," "did you," put a "correct," or "is that right" on the end of it. That's fine but I'm not going to rely on your inflection to know if you're testifying or questioning. Is that clear?
MR. M: Your Honor, it's - - it's Pozner and Dodd. It's It's acceptable
THE COURT: Is that clear?
MR. M - - cross-examination.
THE COURT: It's not acceptable in my courtroom. If you don't like it you can appeal me after I'm done fining you. Is that clear?
MR. M: Yes, your honor.
[Tr. at 13-14]

Counsel for petitioner engaged in the lower court's requirement of adding a phrase of questioning for the remainder of the cross-examination. Then the following questions were posed to the witness by defense counsel, at which time defense counsel was held in contempt:

Q: You never specifically said to Mr. E that he did not have permission to keep the computer, correct?
A: That is correct.
Q: Okay. And, you never specifically told Mr. E that he did not have permission to keep the GPS?
A: My messages were he - -
THE COURT: That's one hundred. Phrase it in a question so the witness can answer.  Are you done questioning this witness?
MR. M: No, your Honor.

Here are a couple precedents upholding the legitimacy of the technique:

Ohio v. Roberts, 448 U.S. 56, 70-71 (1980) ("counsel's questioning clearly partook of cross-examination as a matter of form; footnote references to the cross:
" 'you never gave them. . .'; 'this wasn't then in the pack'; 'you havenever [not] seen [discussed; talked]. . .you never gave. . .'").

and

H.L. v. Matheson, 450 U.S. 398, 401-02 (1981). The witness gave ". . . monosyllabic answers to. . . leading  questions." and here is the example in the case:
Q: At the time that the Complaints in this matter was signed, you were pregnant?
A: Yes
Q: You had consulted with a counselor about that  pregnancy?
A: Yeah.
Q: You had determined after talking to the counselor  that you felt you should get an abortion?
A: Yes.
Q: You felt that you  did not want to notify your parent.
A: Right.

[Michele Berry, thanks to NACDL & Jay Clark]

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Comments

I've been amazed at how some judges (especially those who are appointed) lack the rudimentary skills of trial practice (how to cross-examine and even some basic rules of evidence).

Did a trial with a new federal judge - and it was his first ever as a lawyer to do a trial.

It was a circus with no ringmaster. They should mandate some trial experience in the ABA approvals. That's a little more important than whether or not he went to an Ivy league school or if he is a minority.

Posted by: John | Sep 28, 2006 1:12:19 PM

I paid almost $1,000 to learn how to cross exam in this very technique. What a travesty.

Posted by: tim bates | Sep 29, 2006 8:18:42 AM

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