The Art of Cross-Examination Requires Active Listening

Sherlock Holmes once complained to his colleague, Dr. Watson, that “You see, but you do not observe.” All too often we hear, but we do not listen. Sometimes our preconceptions about what the witness should say prevent us from hearing what the witness actually says. Sometimes we hear on the surface, but fail to appreciate the depth of the statements. Sometimes the witness himself doesn’t fully realize the implications of what he is saying.

In a long-ago murder trial, the defendant’s accomplice, who had already been sentenced to the maximum possible sentence, appeared as a witness to try to exonerate his friend. The accomplice testified most persuasively that he acted alone, the defendant had nothing to do with it, and if the defendant had tried to stop him, he would have killed the defendant, too. The prosecutor made little headway with the accomplice on cross-examination.

Immediately after the accomplice finished his testimony, the court took a recess. During the recess, the prosecutor learned that the defendant had been making hand signals to the accomplice while the accomplice was testifying. The prosecutor’s next witness was a member of the audience, who testified to seeing the hand signals. At least now the prosecution could argue that the defendant was coaching the accomplice as he testified. The defense called the defendant to the stand for the limited purpose of showing that the defendant did nothing to influence the accomplice’s testimony. This was a safe enough ploy because the judge solemnly warned the prosecutor that cross-examination would be limited to the scope of direct.

The defendant testified that both he and the accomplice knew American Sign Language, and that he had signed to the accomplice that the accomplice was a liar. The defendant thought he was saying that he had not influenced the accomplice’s testimony. The prosecutor heard the defendant say something else. Cross-examination consisted of three questions:

Q. What was he testifying about when you called him a liar?
A. About our roles in the killing.
Q. Your roles in the what?
A. In the killing.
Q. So, in other words, you were calling him a liar when he said he acted alone?
A. Yes.

Only three people were present for the killing, and it was not a case of assisted suicide. The defendant was the only person in the world who could have helped the accomplice commit the murder. The defendant didn’t realize what he was saying, but the prosecutor heard it loud and clear. Cross-examination consisted of simply making sure everyone else in the courtroom heard it, too.