Sep 03, 2008

Cross-Examination: Lessons From the Movies

Cross-examination is rarely the make-or-break phase of a criminal trial. But you wouldn't know that if you've seen a lot of courtroom movies and TV shows. Highly dramatic and entertaining though they might be, movies and TV tend to exaggerate the importance of cross-examination in the outcome of criminal trials. Unlike Perry Mason, actual cross-examiners rarely wrest confessions of guilt from witnesses, jurors, or courtroom spectators!

Watch closely, however, and you may be able to learn what good cross examiners should -- and shouldn't -- do. If you're looking for a model of good cross-examination techniques, you can't do better than the wonderfully funny film My Cousin Vinny. In the film, Vinny's (Joe Pesci's) client (his cousin) is charged with murdering a convenience store clerk. A witness for the prosecution testifies that he saw the defendant enter the store and then leave 5 minutes later. The witness is sure that no more than 5 minutes elapsed, because this is how long it took the witness to cook his breakfast grits.

On cross-examination, Vinny wants the witness to admit that grits need to be cooked for 20 minutes before they are ready to eat. But before confronting the witness with this fact, Vinny carefully uses a questioning technique called "closing the doors". Vinny realizes that the witness' 5-minute estimate might be correct -- if the witness likes under-cooked grits, or if the witness used "instant grits". So Vinny "closes the doors" to these possible explanations before asking the witness to admit that it took him 20 minutes to cook his grits on the day of the murder.

Vinny first asks the witness how he likes his grits -- "regular, creamy, or al dente?" The answer to this seemingly silly question ("Just regular, I guess") shows that the witness cooks his grits the same way everybody else does. Second, Vinny asks the witness, "Do you use instant grits?" When the witness replies, "No self-respecting Southerner uses instant grits," Vinny has closed the door to the other possible explanation the witness might offer to justify his 5-minute time estimate. When Vinny then asks the witness to admit that grits need 20 minutes of cooking time, the witness has to take back his 5-minute estimate and concede that Vinny is correct.

For a model of what not to do on cross examination, watch prosecutor Claude Dancer (played by George C. Scott) fall flat on his face in the classic courtroom drama, Anatomy of a Murder

In this film, defense witness Mary Palant surprises Dancer by testifying that murder victim Barney Quill had raped the defendant's wife shortly before the defendant shot Quill. Cross-examiner Dancer commits the Cardinal Sin of cross examination: He asks Palant a question that he does not know the answer to. Dancer accuses Palant of making up the rape story because she was Quill's scorned lover. Shocked by the accusation, Palant denies that she and Quill had been lovers.

Palant stammers that "Barney Quill was my..." 

Dancer then asks the fatal question that he does not know the answer to: "Barney Quill was what, Miss Palant?"

Compelled to answer, Mary Palant reveals her long-held secret: "Barney Quill was my father." His scorned-lover accusation shot to pieces along with his case against the defendant, Dancer meekly retreats to counsel table, murmuring, "No more questions."

While trials may not usually be as exciting as those depicted in films like My Cousin Vinny and Anatomy of a Murder, films can often teach you quite a bit about to to be an effective criminal trial lawyer!

(And, my book Reel Justice: The Courtroom Goes to the Movies, discusses the legal and historical accuracy of more than 200 courtroom films. If you're looking for a good movie to rent, check it out!)