Cross-Examination Techniques Demonstrated

Presumed Innocent, Scott Turow’s masterpiece thriller and courtroom drama, superbly illustrates how to conduct a winning cross-examination of an expert. The expert is forensic pathologist Doctor Tatsuo Kumagai, known to his friends as “Ted” and to others as “Painless.” Doctor Kumagai is called to testify in the murder trial of chief assistant prosecutor Rusty Sabich who stands accused of murdering Carolyn Polhemus, another assistant prosecutor.

Sandy Stern, Rusty’s defense counsel, performs a masterful cross. The film, starring Harrison Ford as Sabich, essentially replicates the novel’s cross-examination, which Turow carefully crafted for both realism and dramatic effect. Consequently, the film clip of the cross is an nice trial advocacy tool for teaching techniques for cross-examining an expert.

Some of the cross-examination techniques conveyed in both the book and movie include:

1. Character of the cross-examiner: The successful cross-examiner is one who comes across as a sincere seeker of truth. The examiner’s approach should be fair but firm and not abusive. When dealing with an expert, jurors allow an attorney more latitude to be confrontational than they will with a lay witness who is unfamiliar with the courtroom. Jurors recognize that the expert witness is a professional. Sandy Stern, as played by Raul Julia (pictured here), is dignified, fair and firm. He is graceful, knows where he is going and gets to the point.

2. Lock the witness into a story that can be disproven: The prosecution’s theory is that the victim was killed during a staged rape. Dr. Kumagai’s deductions are based upon the presence of spermicidal jelly being found in the specimen taken from the victim’s body and sent to the lab. Stern: “So this specimen, and the presence of spermicide is critical to your expert opinion?” and Kumagai agrees.

3. Deconstruct the witness’s story: Having locked Kumagai into his story, Stern destroys it. Stern gets the expert to concede that a woman who knew she could not conceive would not use a spermacide. Having locked that down, Stern asks to have that part of the testimony marked by the court reporter. He then confronts the expert with his own autopsy notes revealing that the victim had a tubal ligation.

4. Tell your story: Cross-examination is the examiner’s chance to testify – to tell the story of the case from the examiner’s perspective. The defense story is that Kumagai was a busy man during the time period when he conducted the autopsy of Polhemus and sent the wrong specimen to the lab for analysis. That specimen was found to be of Sabich’s blood type (today DNA analysis would have conclusively shown it was Sabich’s). Stern then forces the ultimate concession, as follows:

“. . . Is it not likely that the specimen containing the spermicide, the specimen containing fluids of Mr. Sabich’s blood type, was not taken from the body of Carolyn Polhemus?”

Painless shakes his head again. But this is not denial. He does not know what occurred.
“Sir, is it not likely?”
“It is possible,” he finally says.
From the jury box, clear across the courtroom, I (Rusty) can hear one of the men say, “For Chrissake.”

5. The truth: Sandy Stern destroyed the expert. It was a winning cross-examination. And, Stern had a good faith belief for the line of questioning. But, was the defense story the truth? Presumed Innocent and the 2010 sequel Innocent, picking up the story of Rusty decades later when he is on the bench, answer that question.