Art of Cross-Examination Requires Mastering the Art of Listening

A young man stood trial for grave robbery on the uncorroborated testimony of his former girlfriend. She testified she had met him approximately two weeks before Christmas, and had helped him commit the crime about a week after they met. The defendant’s Mom was listed as a last minute defense witness. The prosecutor got to speak to her just before she testified, but managed to learn little about her testimony in the few minutes he had.

Mom testified that on Christmas morning she was busily decorating her tree, when Junior came in and introduced her to his new girlfriend, Violet. “How nice,” she said, “I am decorating our tree with violets, and my son brings home a girlfriend named Violet.” It was a touching scene. If it was true, Junior was not guilty. Violet would not have met Junior until after the commission of the grave robbery.

As the prosecutor listened to Mom’s testimony, two things struck him. First, Christmas day is a little late to be decorating a tree. Second, the trial was being held two weeks before Christmas. Perhaps those two facts could be used to discredit Mom. It would require violating the time-honored rule of cross-examination to never ask a question when you don’t know the answer; but the payoff seemed worth the risk.

Q. You decorated your tree with violets last year?
A. Yes.
Q. I bet you didn’t decorate your tree with violets this year?
A. I sure didn’t.
Q. What did you decorate your tree with?
A. I decorated it with roses and garlands.

Another time-honored rule of cross-examination is “When you strike oil, stop boring.” The prosecutor, believing he had struck oil, discontinued the line of questioning. He would take full advantage of this implausibility in final argument. Christmas is a time steeped in family tradition. Families celebrate this Christmas much as they did the last and much as they will the next. Not only was it unlikely that Mom would decorate a tree on Christmas morning the previous year, we know she had it decorated at least two weeks prior to Christmas the following year. The heartwarming incident with the violets may well have happened, but it happened at least two weeks prior to Christmas. Mom was lying about when it happened to give Junior an alibi. The alibi fell to pieces because the prosecutor intently listened to Mom’s testimony.

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