Testimonial Minefield: An Overview Of Interrogation Techniques Utilized By Attorneys During Adversarial Questioning And Cross-Examination

Eric L. Nelson
National University

Abstract:  Attorneys are permitted to use aggressive interrogation techniques during adversarial questioning of a professional called upon to provide expert testimony in a matter at law.  Nineteen such methods are identified and explained in this article.  Professionals may wish to self-assess for vulnerability using the material from this article as a template for analysis.

Background

American jurisprudence is fundamentally adversarial; accordingly, witness testimony is subject to hostile cross-examination in many cases.  Adversarial attorneys are permitted to use a number of interrogation techniques which sometimes seem intended more to befuddle a witness or diminish her/his credibility rather than elicit truthful and accurate responses.

In addition to being memorialized word for word in the court record, testimony of professionals is sometimes observed by specialists who record claims, opinions, retractions and errors in commercial databases (Ruvoldt & Serebrenik (2001).  Such information can be purchased by attorneys for use in future cases.  Even a single error can be resurrected in every future case in which the professional provides testimony, possibly making expertise more difficult to establish in future cases.

Unlike the diligent professional who may prepare to testify by thoroughly reviewing the matter at hand, the adversarial attorney who will question her/him is likely reviewing not only the evidence of the case, but also preparing a tactical offensive directed against the expert witness.  Such an attack is intended to undermine the expert's opinions and attack her/his credibility (Ruvoldt & Serebrenik (2001). Lines of questioning are developed to break down the expert's resistance (McElhaney, 2003), attack her/his character (Alavi, A. & Ahmad, N., 2002), and undermine her/his opinions and credibility (Dysart & Zuckett, 2000). A. Bell (1999) notes "... the world of cross-examination is without limits."  Books such as "Guerilla Cross-Examination Tactics" (S. Bell, 2003) provide instruction on the finer points of adversarial examination of a professional.

It is the presence of subterfuge within some interrogation techniques that poses a danger to the professional who naively assumes that a truthful intent and professional diligence will inoculate from testimonial harm. In order to be a guardian of truth the professional must learn to navigate through dangerous interrogation traps.  The purpose of this article is to identify some of the testimonial challenges which a professional may face so that they can better prepare for hostile interrogation.

Tactics & Methods Of Witness Interrogation

Method ONE: Direct Questioning

Questions are phrased in a manner which calls for a yes or no response from the witness.  The purpose of this method is to prevent explanations; in doing so the attorney can create a set of responses which are more favorable to his/her case.  A secondary purpose for the use of this method is to attempt to bait anger (see method twelve).

Method TWO: Testing Recall

Questions are used to probe the breadth and depth of a witnesses' recall.  When areas of deficiency are uncovered, opposing counsel begins to ask follow up questions within those areas, demanding greater detail.  This will result in the witness having to repeatedly state that (s)he does not know the answer to a question which is posed.  The purpose of this method is to create an appearance of ignorance, lack of preparation, or professional incompetence.

Method THREE: Professional Knowledge

Questions are used to probe a witnesses' knowledge within her/his discipline.  They can include knowledge of methods, machinery and equipment, professional standards, relevant science, and the academic literature pertinent to one's profession.  Areas of deficient knowledge will be pursued in order to elicit repeated acknowledgements of ignorance.  The purpose of this method is to create an appearance of professional incompetence, and perhaps dereliction of professional duties.

Method FOUR: Challenge Integrity

The witness may be challenged as racially prejudiced, sexist, or scientifically dishonest predicated upon even the slightest basis, even if facts are misrepresented in order to do so.  If the witness is employed by a prosecutorial agency (e.g., police, CPS), (s)he may be challenged as biased towards prosecution, rather than fulfilling the duty to equally investigate for proof of innocence as well as guilt.  Marital unfaithfulness, financial irresponsibility, and past criminal history (e.g., drunk driving arrest, petty theft) can be introduced for explanation as well.  The purpose of this particularly vicious method is to damage the witnesses' trustworthiness and character.

Method FIVE: Magnify Mistakes

The transcripts of a professional's testimony in previous cases are introduced into evidence.  The witness is then challenged to reconcile previous error, reversals, contradictions, and disqualification from expertise.  The purpose of this method is to diminish the strength of the witnesses' testimony, and perhaps to provide a basis for a challenge to her/his expertise.

Method SIX: Use Of Hypotheticals

Questions are posed using hypothetical facts, in order to determine if the witness will change his/her opinion.  If the facts plainly merit a reversal and yet the witness refuses to do so then the witnesses' integrity is diminished.  If the witness changes her/his opinion, then counsel will ask "How do you know this isn't, in fact, what happened?"  The purpose of this method is to reduce the strength of a witnesses' conclusions by introducing an element of uncertainty.

Method SEVEN: New Material

Questions are posed based upon new material first introduced in trial.  If a witness only makes an appearance to provide testimony, and does not attend the entire trial, (s)he may be blind-sided by the new information.  The witness may be asked to revise his/her opinion(s) based upon the new information without the benefit of time to fully consider its merits.  The purpose of this method is to elicit a new and possibly inadequately reasoned opinion which may be flawed and therefore subject to further challenge.

Method EIGHT: Re-phrased Answers

Questions are repeated periodically, often worded differently, typically during long and tiring sessions of microscopic examination of the facts of the case and the professional's opinions and conclusions.  Should a witness rephrase an answer previously given, opposing counsel will challenge the witness as to which answer is correct, and which was incorrect.  Though the content of both answers may be identical, the use of changed language is all that is needed as a basis for challenge.  The purpose of this method is to create the perception of witness inconsistency and uncertainty.

Method NINE: Attack Upon Qualification Of Expert

Questions will be asked about professional training and experience.  A professional with a master's degree will be challenged as to why (s)he does not have a doctorate.  IF the witness is not a member of all the appropriate professional societies, (s)he will be challenged on that.  (S)he may be asked to list the professional journals (s)he reads regularly, and perhaps what was the last article read, which journal was it in, and to summarize the contents.  The professional may be asked about so-and-so's methods which were published a few years back, etc.  The purpose of this method is to create the perception of significant professional inadequacy, and perhaps to establish the basis for disqualification from providing expert testimony.

Method TEN: Attack Upon Basis For Opinion

Adversarial counsel will attack the professional's facts, methods, equipment, acceptance thresholds and all items relied upon when forming an opinion.  Gaps and deficiencies will be exploited by detailed interrogation wherein the professional will be compelled to admit weaknesses and faults.  The purpose of this method is to diminish the standing of the professional's opinions and conclusions.

Method ELEVEN: Baiting Arrogance

The opinions and conclusions of a professional are challenged in an aggressive and personalized manner intended to make the witness exude excessive confidence and perhaps elicit an egoistic display.  Often the witness will be asked if (s)he is absolutely certain, without reservation, that the facts (s )he has testified to and conclusions formed are entirely, 100% correct, true and accurate.  The purpose of this method is to create a perception of untoward self-confidence, demonstrated by mannerisms, or by unwillingness to entertain uncertainty.  The assumption this within this method is that witness arrogance will not be received well by the trier(s) of fact, and thereby lower any favor which the witness may have earned.

Method TWELVE: Baiting Anger

Questions are asked using a demeaning or condescending tone.  Responses may be interrupted so that answers are incomplete.  The purpose of this method is to make the professional display anger, perhaps by responding with condescension, irritation, or even confrontation.  Triers of fact, whether jury or judge, typically do not like displays of anger.  The objectivity of an angry person is questionable, and her/his credibility may be diminished as well.

Method THIRTEEN: Eliciting Damaging Concessions

Opposing counsel will confront the professional with evidence which may cause the witness to alter an assumption or conclusion.  The purpose of this method is to cause the witness to agree with opposing counsel, to show that the witness did an insufficient job of investigation and preparation, and perhaps both.

Method FOURTEEN: Discrediting Estimates

Questions will be asked which require estimating time, distance, circumstance, conditions, important dynamics, etc.  The accuracy of answers are then tested against
established standards, in order to determine the error rate of the witnesses' estimates.  For example, a police officer may be asked to estimate the distance from which (s)he observed a drug sale.  Suppose the answer is 20 feet.  The witness will then be directed to identify a fixed item in the court room which is the same distance away as the drug sale.  Opposing counsel will then ask the judge to have the bailiff measure the distance to the object picked.  Suppose an empty chair in the juror box is chosen, and the distance measured is found to be 30 feet, this will mean a distance estimation error rate for the witness of 50%.  The purpose of such a procedure is to cast doubt upon the ability of a witness to observe accurately.

Method FIFTEEN: Planting Information

These questions have a disguised intent.  They contain an assumption mentioned in passing, and then a distracter which is sometimes inflammatory.  The distracter is chosen to elicit either a known yes or no answer.  Once the answer is given, it will then be applied not only to the distracter, but to the disguised assumption.  For example, "So there in the dark you saw the suspect pull a gun, and so you shot her.  Is that correct?"  If the witness is a police officer known to have shot the suspect, the known answer will be "Yes."  Later the witness may be challenged thusly: "You previously testified that there was light in the room, coming from a street lamp, yet later you testified that the room was dark.  Which answer is truthful, and which answer is not correct?"  The purpose of this method is to create confrontational ammunition, and to discredit the witnesses' testimony.

Method SIXTEEN: Interruption

Witness responses are interrupted with another question.  The purpose of this method is to stop explanations which might damage opposing counsel's position.  This method may also be used to bait witness anger in conjunction with method twelve (baiting anger).

Method SEVENTEEN: Quoting From An Unfamiliar Source

Opposing counsel will quote from a source with which the professional is not familiar.  Because of witness unfamiliarity, the attorney may quote information in a manner such
that it conveys a meaning opposite of the author's intent, and the witness won't be able to know otherwise.  Likewise a source of low credibility, or perhaps scientific unreliability may be used.  The witness is then directed to opine as to the article's bearing upon the matter at trial.  The purpose of this method is to try to elicit a changed or qualified opinion from the witness, and to create a sense of incomplete professional preparation for failing to be previously aware of the article, and to have considered its merits upon the matter under consideration.

Method EIGHTEEN: Increasing The Tempo

Questions are delivered rapidly, with little pause between a professional's responses and the next question.  The purpose of this method is to try to speed up the witnesses' responses and thereby decrease the amount of time (s)he has to think about her/his responses; in turn, this may raise the likelihood of a misstatement or other error which can then be used against the witness.

Method NINETEEN: Cost Of Expert

The professional is asked how much her/his fees are for each aspect of service provided, including testimony at deposition or trial.  The purpose of this method is to attempt to create an appearance of bias by the professional in favor of the party who retained his/her services, and secondarily to perhaps create resentment in jurors who may see the fees for service as excessive.

Discussion

An attorney's adage suggests: When the law is on your side, pound the law.  When the facts are on your side, pound the facts.  When neither the law nor the facts are on your side, pound your opponent.  The experience of hostile questioning by adversarial counsel is a reality under the American system of justice.  It could be argued that there are two types of professionals who provide courtroom testimony: Those who have been pounded upon by adversarial counsel, and those who will someday be pounded upon by adversarial counsel.

Unquestionably close cooperation with friendly counsel is fundamental to weathering some of the challenges a professional may face while providing sworn testimony.  Friendly counsel should brief a witness regarding new evidence submitted during legal proceedings, and other important changes in the case before the professional begins testimony.  Upon re-directed questioning friendly counsel can ask open-ended questions which will allow the witness to complete answering questions which were limited to "yes" or "no" responses during direct questioning by opposing counsel.  Finally, friendly counsel can challenge the use of some of these methods and seek an order by the judge to cease, limit, or otherwise control their use.

None of the methods identified in this article are insurmountable.  It may be beneficial for professionals who provide sworn testimony to perform a personal vulnerability survey using the methods from this article as an analysis template.  Review won't inoculate from testimonial danger, that requires specific hardening against subterfuge by developing testimonial techniques intended to preserve the truth during methodical challenge.

References

Alavi, A. & Ahmad, N., (2002). Credibility and impeachment: Fundamentals of direct and cross-examination. University of Houston Law Foundation continuing legal education forum Sept. 5-6, 2002.

Bell, A. (April 1999). Fishing in Troubled Waters: Cross-Examination of an Arresting Officer in a DUI Case The Champion: National Association Of Criminal Defense Attorneys. On-line: http://www.criminaljustice.org/public.nsf/ChampionArticles/99apr14?OpenDocument

Bell, S. (2003). Guerilla Trial Tactics. Tustin, CA: Litigation One Publishing.
Dysart, C., & Zuckett T. (2000). The Permissible Scope of Cross-Examination of Expert Medical Witnesses Journal of the Missouri Bar 56(5). On-line: http://www.mobar.org/journal/2000/sepoct/dysart.htm

McElhaneYt J. (2003). Deposition Goals: Develop a Plan to Get What You're After From Witnesses in Discovery. ABA Journal Aug 15, 2003