Editor’s note: This article provides case studies that discuss real-world examples of language readers may find offensive or traumatizing. 

“The art of cross-examination is not the art of examining crossly. It's the art of leading the witness through a line of propositions he agrees to until he's forced to agree to the one fatal question.” – Clifford Mortimer

All trial lawyers anticipate and enjoy cross-examination, although it rarely plays out as dramatically as television and movies portray. This article focuses on impeachment through cross-examination and the introduction of evidence. The Sixth Amendment and OK. Const. Art II, §20 provide every criminal defendant the right of confrontation. The Supreme Court reaffirmed the sacred right of confrontation in Smith v. Arizona[1] by prohibiting the use of forensic analysis tests without an expert testifying, emphasizing that the jury determines the credibility of the testing through the "crucible of cross-examination." The goal of cross-examination is not to embarrass the witness or engage in character assassination but for the jury or judge to question whether the witness was truthful and whether the witness was right.

CREDIBILITY

For the jury to determine the credibility of witnesses, the court tasks them with considering the witness's bias, prejudice or interest in the outcome of the litigation, their memory, how the witness developed personal knowledge or observed the facts their testimony concerns, their consistency with previous statements and their demeanor.[2] Though the court does not give this instruction unless an actual eyewitness testifies, OUJI-CR(2d) Instruction No. 9-19 provides several lines of inquiry to cover: 1) Did the witness have ample opportunity to observe? Considering factors such as lighting conditions, distance, duration, stress of the moment and prior dealings with the person. 2) How positive is the witness on the identification? 3) Did the witness previously fail to identify the witness? 4) Was their description of the person or thing accurate? 5) Did they describe the suspect before police showed them a person, picture or lineup? 6) Did police show them one person or several people or one picture of multiple pictures? The court developed the eyewitness identification instruction from Manson v. Brathwaite[3] to help combat the problems of suggestible lineups; however, the police rarely use lineups but rather show them a single person or photograph. Remember, credibility is always primary, never secondary, and it is always allowed on cross-examination, despite the other party's objections, so do not cower.       

IMPEACHMENT

The jury instructions explain to jurors that the introduction of impeachment evidence is for the jurors to determine if it affects the believability of the witness, not for substantive proof of guilt or liability in a cause of action.[4] A common way of impeaching a witness includes the use of prior convictions under Oklahoma law, but a trial lawyer needs to understand the limitations under this statute.[5] First, the general rule is that the conviction must be within 10 years from the date of conviction or release from prison, whichever is later. If an attorney wishes to introduce evidence of a stale conviction, they must file notice 10 days prior to trial. The trial court then must determine if the specific facts and circumstances of the conviction outweigh its prejudicial effect. Another way to revive a stale felony conviction is if the witness has a conviction for a crime of moral turpitude, even a misdemeanor, within the past 10 years; that crime will revive the old conviction, but that does not allow the admission of the crime of moral turpitude.[6] Further, the state's filing of supplemental information does not provide notice to the defendant of intent to cross-examine based on stale convictions.[7]

When the trial court allows the introduction of hearsay, the opposing party may attack the credibility of a declarant as if they testified and support it with competent evidence.[8] The reason for the rule is one of fairness. This rule allows the ability to submit evidence impeaching the declarant as if they had testified.[9] First, a party may introduce evidence of the declarant's character for truthfulness as provided.[10] Second, a party may introduce evidence of prior criminal convictions under Okla. Stat. Tit. 12, §2609 (2002); FRE 609 (2011). One difference between impeaching a live witness and a declarant is that with a live witness, the impeachment concerns prior inconsistent statements. In contrast, with a declarant, it is likely with subsequent inconsistent statements.[11] This rule gives the trial court discretion to allow impeachment testimony without requiring the declarant an opportunity to explain it because of the impracticability of doing so when the declarant is unavailable as a witness.[12] The Oklahoma rule, however, is even more permissible and does not require a determination on whether the declarant had an opportunity to explain.

The question then becomes, "How does a lawyer introduce the evidence to impeach the declarant?" If fortunate enough to have an investigator, lawyers need to run background checks on the declarant as they would on any other witness. If the declarant has any felony convictions or convictions for crimes of dishonesty, the easiest thing is to obtain certified copies of the declarant's judgment and sentences. Sometimes, the client may be the best person to know people who know the declarant to be a liar and seek out those witnesses to testify about their character. Further, call all the witnesses to whom the declarant made conflicting statements. Seek out any written version of the declarant's subsequent inconsistent statements: For example, did they write any text messages, emails, social media posts or sworn statements? If so, subpoena the person to whom the declarant wrote and have them testify.

404B EVIDENCE

Character evidence is not admissible, except when a party can find a way for it to be, and the statute provides several reasons, including "proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Practitioners seem to think that it only applies to criminal defendants, but it applies to civil cases and any witnesses. In criminal cases involving criminal defendants, the state must file a Burks notice 10 days prior to trial.[13] Lawyers wanting to use this type of evidence against witnesses should file a similar notice to have a pretrial ruling on the issue rather than trying to argue the issues at the bench during cross-examination.

RAPE SHIELD EXCEPTIONS

The rape shield statute prohibits the introduction of opinion or character evidence regarding the victim's sexual behavior and specific incidents of sexual behavior with anyone other than the accused.[14] The statute also authorizes the impeachment of other sexual behavior if it shows proof of pregnancy, semen or injury but cannot introduce those incidents on the issue of consent. Rape shield also specifically allows the introduction of prior false allegations of sexual assault. One other exception is if the alleged victim participated in sexual activity in the accused's presence. To impeach with any of those exceptions, the lawyer must file a motion 15 days prior to trial for the court to hold an in camera hearing to determine if the proffered evidence will be admissible; however, the trial court can allow such impeachment evidence if newly discovered, and due diligence could not have discovered it earlier.

EXPERT WITNESSES

Always object to the other side asking the judge to declare the witness as an “expert,” because that signals to the jury that the judge told them the witness is more important than others. The criminal jury instructions do not use the term “expert witness” but “opinion witness.” Further, the instructions in civil and criminal explain that the jury determines “the weight and value” of expert/opinion testimony. To call an expert witness, the court must determine that “scientific, technical, or other specialized knowledge” would aid the factfinder. To cross-examine an expert, the lawyer needs to be extremely knowledgeable about the field. This may require consulting with an expert to ensure the lawyer understands everything. If the lawyer is fortunate enough to hire their own expert, they should have the expert sit and listen to the other expert's testimony.

Study the expert's curriculum vitae and challenge if parts of it are lacking. Read all writings of the expert and see if other experts challenged or contradicted their opinions or if their writings contradict their opinion in the current case. Research if the witness has testified in other cases and if juries did not agree with the expert or if cases were reversed for something involving the expert's testimony. Read learned treatises on the subject matter and challenge them to ensure that their opinion or work matches what the prevailing research shows. If they are unfamiliar with prominent articles in the field, it may show they are not as knowledgeable as they claim. A successful trial lawyer will not accept any expert's opinion just because they claim to be an expert.

The following is a brief example of impeaching an expert witness in a child sexual abuse case:

Attorney: Do you agree with this statement: "A normal sexual assault nurse examination does not mean that sexual victimization has not happened."

Expert: No.

Attorney: So you disagree with the Official Journal of the Academy of Pediatrics article about genital anatomy in pregnant teenagers, titled "Normal Doesn't Mean Nothing Happened," that found that out of 36 pregnant teens where sexual activity was undisputed, only two had findings of penetrating trauma?

THE ART OF CROSS-EXAMINATION

Effective cross-examination is the practice of active and intense listening to the witness’s answers, complete preparation and relaxation. The examination of any witness is a living and breathing thing. The examiner must carefully listen to the witness's answers and simultaneously process those answers while continuing to ask the salient questions that have been predetermined in trial preparation. Adaptation is crucial. The key to adaptation is intently listening to the witness, which is easy with complete relaxation and command of the courtroom.

The examiner, be it on direct or cross-examination, must, to the greatest degree possible, step away from any predetermined script and be able to refocus and readjust based on the answers the witness gives. The interrogation of a witness never goes precisely as planned. The witness will throw curveballs and sometimes knuckleballs, but what the examiner is looking for is the slow floating "change-up" that will allow the cross-examiner to "tee-up" the witness with a question the lawyers could never have predicted in pretrial preparation.

Preparation is the key to an effective cross-examination. What testimony or points does the lawyer need to get through to that witness? Cross-examination is a way for the lawyer to present their client's version of the story and potentially why the juror should not believe that witness. Cross-examination is about the lawyer, not the witness.[15]

Read every statement the witness has given and have all the statements in hand during cross-examination, including videos of witness interviews and a transcript; many AI applications can generate a transcript with time stamps. If the witness admits to the prior inconsistent statement, then that finishes the inquiry on that prior inconsistent statement. If they deny the statement or claim a lack of memory, the lawyer must then call that witness to testify to the prior inconsistent statement.

The examiner must remember that cross-examination is rarely going to be a Perry Mason moment. Often, the most effective cross-examination is to pin the witness down for destruction by other witnesses. One of the best examples of pinning down the witness is from the O.J. Simpson trial, when F. Lee Bailey asked Mark Fuhrman:

"Have you ever referred to black people as n-- in the last 10 years?"

"Not that I recall."

"So if you have called someone that, you have forgotten it?"

"I can't answer the question the way you have phrased it."

"Are you saying on your oath that you have never addressed any black person as a n-- or talked about black people as n-- in the last 10 years?"

"I have not."

"So anyone who comes to this courtroom and says that you have would be a liar?"

"Yes."

"All of them?"

"Yes, all of them."

Most criminal defense lawyers at the time thought Mr. Bailey failed because he did not get Mr. Fuhrman to admit anything. The legal commentators gave him a grade of F at the time. It was a brilliant example of pinning him down, where the prosecution had no wiggle room to backtrack the lie. The above famous cross-examination is also a textbook example of calling a witness to impeach with the inconsistent statements they denied.

However, Mr. Bailey knew he had the witnesses who could permanently destroy the credibility of Mr. Fuhrman, and Mr. Bailey and the team did exactly that. The defense called Kathleen Bell to testify that Mr. Fuhrman told her, "All of the n-- should be gathered together and burned." Natalie Singer testified that Mr. Fuhrman said to her, "The only good n-- is a dead n--." Then, they presented something most lawyers would only dream of discovering in a case: hearing the statements in Mr. Fuhrman's own voice in Laura Hart McKinney's recordings and transcripts, in which he used the N-word 42 times.

Be confident in the questions. Practice the articulation, tone and manner of delivery. Remember, this is a performance for the jury, and likability matters. The jury expects the attorneys to be experts in their field. Think about vocabulary. No one enjoys a professorial lecturer, but it is best to avoid slang language.[16] In everyday life, everyone engages in cross-examination to a certain extent, seeking to uncover the truth with children, co-workers and others. This process requires setting aside the courtroom setting and spectators; the colloquy between the lawyer and witness should make the answers less likely to be true. The goal is for the jury to listen to the conversation and think that the witness is not truthful.

Always use leading questions with one fact per question. If the witness dodges the question, ask it again, even narrower, to require them to answer. Do not be afraid to object to the witness's answers and ask the judge to compel the witness to answer the question the lawyer asked.

Not all witnesses require cross-examination. Suppose the witness said nothing that hurt the client's case; then, there is no need to ask any questions. Examiners do not need to attack all witnesses but may need to seek clarification or repetition of a helpful point. Lawyers can always find something useful with all the witnesses. Attacking witnesses without a purpose is pointless and will alienate the jury.

Finally, preparation, practice and prowess with the evidence code will help the journey toward better cross-examination. With cross-examination, the lawyer should be "testifying" through the questions and focusing the jury to understand all the problems with the witness's testimony. Cross-examination is thrilling when done well and should be enjoyable, but confidence and command of the courtroom are prerequisites. New and seasoned lawyers should apply these tips in their next trials.

---

ABOUT THE AUTHORS

Shelley L. Levisay earned her undergraduate degree from Oklahoma Baptist University in 2007, her J.D. from the OU College of Law in 2011 and her master’s degree in Indigenous peoples law from OU in 2022. She is the Oklahoma Indigent Defense System contractor for Pottawatomie and Lincoln counties and has tried about 50 jury trials. Ms. Levisay is also an author who writes legal thrillers and nonfiction.

 

 

 

 

 

David T. McKenzie earned his bachelor’s degree from Southwestern Oklahoma State University, two master’s degrees from Northeastern Oklahoma State University and his J.D. from the OU College of Law. Mr. McKenzie has tried nearly 300 jury trials during his 37 years of practice and has served as an adjunct professor of trial practice at the OCU School of Law. He has received the Clarence Darrow Award, the Barry Albert Award, the Maurice Merrill Golden Quill Award, the Earl Sneed Award and the Professional Advocate of the Year Award.

 

 

 

---

ENDNOTES

[1] 602 U.S. 779 (2024).

[2] OUJI-CR(2d) Instruction No. 10-8; OUJI-CIV Instruction No. 3-13.

[3] 432 U.S. 98 (1977).

[4] OUJI-CR(2d) Instruction Nos. 9-20, 9-21, 9-22, 9-23; OUJI-CIV Instruction No. 3-14.

[5] Okla. Stat. Tit. 12, §2609 (2004).

[6] Collins v. State, 2009 OK CR 32, ¶24, 223 P.3d 1014.

[7] State v. Alvarado, 2024 OK CR 23, 555 P.3d 1255.

[8] Okla. Stat. Tit. 12, §2806 (2002); FRE 806 (2024).

[9] FRE 806 Advisory Note.

[10] Okla. Stat. Tit. 12, §2608 (2002); FRE 608 (2011).

[11] FRE 806 Advisory Note.

[12] Id.

[13] Burks v. State, 594 P.2d 771 (1979).

[14] Okla. Stat. Tit. 12 §2412 (1993).

[15] Robert Gifford, “‘Your Witness, Counsel’ – Cross-Examination,” 87 OBJ 2331 (2016).

[16] F. Lee Bailey and Kenneth Fishburn, Excellence in Cross-Examination (2014).