Thursday, February 21, 2013

Is cross-examination just for jerks?

I'm a criminal law junkie. I don't think that's a surprise to anyone and I don't think there would be any point to my trying to deny it. I'm such a junkie that on a snow day, when I am officially freed from having to do anything other than knitting and reading and playing with my pup, I am watching live court proceedings from a death penalty trial out of Arizona. I haven't much followed the case against Jodi Arias, but I do know a little something about it. (One of my favorite celebrity gossip sites has been covering it a lot.) She admits she killed her ex-boyfriend by lots of stabbing and I think some beating and perhaps a gunshot or two. She says it was all self-defense. The prosecution, naturally, doesn't buy it. As it turns out, today is the very day that the prosecution got to start its cross-examination of Arias.

So while I am waiting for my banana bread to bake,  I thought I might just watch the first part of the cross-exam. The commentators built it up as being potentially explosive, fabulous, on par with the great movie cross-exams we all remember. Well, after only 20 or so minutes, I have to say I'm not impressed.

I don't understand why some attorneys think the only way to conduct a cross-examination is belligerently. Challenging every little thing, demanding yes and no answers, yelling at the witness to answer the question in a way that no normal person would answer it, trying to make mountains out of molehills.

He started his cross-exam by trying to challenge one of Arias' claims that she got upset with the boyfriend, Travis Alexander, on two occasions, one when he said she would turn out like her mother in a tone that suggested that would be a bad thing, and one when he said something insulting about her grandfather. The prosecutor started by pointing to a time when Arias jokingly called her sister dumb (as if we haven't all at some point said the same thing about our own siblings). He then went on to make a huge, big deal about how she holds other people to a different standard about making insulting comments than she does. Umm... Sort of the way we all do when it comes to family? As in I can say whatever I want to about my family member, but nobody else had better! Geez, doesn't everyone apply that particular double standard?

Then he asked if her if she could see a woman's face in a particular situation. She kept trying to explain that she could see part of it, but not all of it. He kept demanding a yes or no answer, even asking the judge to direct her to answer the question. But, come on, how is anyone who saw part of a face supposed to answer the question of whether you saw the face? Wouldn't we all clarify that the answer really isn't either a straight-up yes or no? This wasn't the only example of badgering the witness to give a yes or no answer even though a plain yes or plain no would be misleading either way.

This style of just badgering the witness for no reason other than to badger the witness seems like such bad strategy to me. Does it really work with juries? To me, this guy is coming across as an impatient, rude jerk. I'm not terribly inclined to believe the self-defense theory because of how very much she killed this guy, but this cross-exam is not helping the state in my view. I am unimpressed when I read cross-exams like this, where the questioning attorney (often, frankly, the defense attorney) picks apart minor little details that are so easily understood and explainable as completely normal human behavior. (Calling it small before and tiny now, for example. Who cares?)

If this guy is supposed to be a bulldog who conducts a great cross-ex, well, I'm not impressed. Maybe if this is how cross-ex is supposed to be done, it's just as well I'm not a trial attorney because this isn't for me. Luckily, my banana bread is done so I can settle in on the couch and move on to DVDs and clearing out my DVR. I don't really want to watch another several hours of an attorney senselessly and without any strategic flow beating up on a witness, even if it is one who might well be guilty of murder.

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