Cross-Examination: Bias
Video clip from the movie Justice at Nuremburg in which the prosecutor reveals the bias of a defense witness.
Cross-examination is hard. If we aren’t careful, a key aspect of a trial can become a tribulation.
It is important to go into cross examination with a limited set of specific goals. There are certain categories of cross-examination that we can cover in the series, but let’s start with “bias.”
If we can show that the witness has a certain interest in the outcome or a prejudice for or against a certain person or proposition, we can undermine the strength of their direct testimony, which presumably worked against us.
(Note): If direct testimony did NOT harm your case, don’t bother standing up and asking questions on cross.
We want to underscore bias, prejudice or personal interest. That can come in the form of a relationship to a party in the case, animosity toward your client (in my case, the government), or someone with something to gain.
We should be eager to point out that the witness didn’t come forward earlier. Perhaps he had important information he didn’t share that could have prevented all this. Or maybe the 1st person he ever told was opposing counsel.
And we should demonstrate whenever someone has limited knowledge such that their assessment is incomplete or uninformed.
All of these methods of impeachment are available in the federal courts. United States v. Abel, 469 U.S. 45, 50 (1984) (prison gang members will lie for each other!!).
In a bank robbery trial, I cross examined the brother (an Air Force NCO) of the defendant who provided him with an alibi. I started with the standard, “he’s your brother and you don’t want something bad to happen to him.”
Then I moved on to, “you KNEW he had been arrested for bank robbery but never called the police to tell them he was with you. In fact, the first person you ever told was the defense lawyer.”
And I was able to finish with a flourish – this Air Force NCO, who was stationed at Charleston, SC, was in fact on leave during the time the bank was robbed (I requested his leave form from the USAF JAG office there), but he wasn’t here in Chattanooga. He was in AZ. So he couldn’t have been with his brother at the time the bank was robbed.
