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MacCarthy on Cross-Examination

MacCarthy on Cross-Examination

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MacCarthy on Cross-Examination

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5/5 (2 valutazioni)
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308 pagine
3 ore
Pubblicato:
Nov 30, 2007
ISBN:
9781614383383
Formato:
Libro

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Learn how to look good on cross, even when the witness is not cooperating. Terence MacCarthy is synonymous with effective cross-examination. For 40 years he has been the head of the Federal Defender's Office in Chicago, and is among the top CLE instructors in the nation owing to his lectures on cross-examination technique. And now, Terence MacCarthy has literally written the book on cross-examination.

The primary reason lawyers are more adept in opening and closing statement is that they are able to use the most persuasive technique known--they are allowed to tell a story. This new book shows you how to tell a story in cross- examination, too, even when you are faced with a hostile witness. Learn how to manage and effectively minimize the witness's involvement, without appearing controlling, extracting and insulting. Discover how to use effective short statements and make the witness affirm everything you say.

Filled with illustrative cross-examinations from actual cases, MacCarthy on Cross-Examination is your key to employing these proven techniques in your own practice. Using the three themes that run throughout the book--looking good, telling a story, and using short statements--you can take control of your cross-examinations and achieve the results you desire.
Pubblicato:
Nov 30, 2007
ISBN:
9781614383383
Formato:
Libro

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MacCarthy on Cross-Examination - Terence MacCarthy

MacCarthy ON CROSS-EXAMINATION

MacCarthy ON CROSS-EXAMINATION

TERENCE F. MACCARTHY

Cover design by ABA Publishing

The materials contained herein represent the opinions and views of the authors and/or the editors, and should not be construed to be the views or opinions of the law firms or companies with whom such persons are in partnership with, associated with, or employed by, nor of the American Bar Association unless adopted pursuant to the bylaws of the Association.

Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only.

Excerpt from Presumed Innocent by Scott Turow (Farrar, Straus & Giroux, 1987) used by permission of the author.

© 2007 American Bar Association. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. For permission contact the ABA Copyrights & Contracts Department, copyright@abanet.org or via fax at (312) 988-6030.

Library of Congress Cataloging-in-Publication Data

MacCarthy, Terence.

Maccarthy on cross-examination / Terence F. MacCarthy.

p. cm.

1. Cross-examination—United States. I. Title.

KF8920.M33 2007

347.73’75—dc22

ISBN: 978-1-61438-338-3

Discounts are available for books ordered in bulk. Special consideration is given to state bars, CLE programs, and other bar-related organizations. Inquire at Book Publishing, ABA Publishing, American Bar Association, 321 North Clark Street, Chicago, Illinois 60610.

www.ababooks.org

Epigraph

The age-old tool for ferreting out truth in the trial process is the right to cross-examination. For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.

Perry v. Leake, 488 U.S. 272, 283 n.7 (1989)

[T] he principal purpose of cross-examination [is] to challenge whether the declarant was sincerely telling what he believed to be the truth, whether the declarant accurately perceived and remembered the matter he related, and whether the declarant’s intended meaning is adequately conveyed by the language he employed.

Ohio v. Roberts, 448 U.S. 56, 71 (1980)

Cross-examination often depends for its effectiveness on the ability of course to punch holes in a witness, testimony at just the right time, in just the right way.

Perry v. Leake, 488 U.S. 272, 282 (1989)

The Sixth Amendment right of an accused to confront the witnesses against him is a fundamental right.

Pointer v. State of Texas, 380 U.S. 400, 403 (1965).

[A] denial of cross-examination without waiver … would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.

Brookhart v. Janis, 384 U.S. 1, 3 (1966)

In Alford v. United States, 282 U.S. 687, 692 (1931), in reversing a federal conviction because of restrictions on cross-examination, a unanimous Court stated:

It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them …. To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial.

And in Smith v. Illinois, 390 U.S. 129, 132-33 (1968), the Court reversed a state conviction where the trial judge restricted the right of cross-examination.

Cross-examination is the greatest legal engine ever invented for the discovery of truth.

5 J. Wigmore, Evidence § 1367 (J. Chadbourn, rev. 1974)

Cross-examination is the principle means by which the believability of a witness and the truth of his or her testimony are tested.

Davis v. Alaska, 415 U.S. 308, 316 (1974).

Contents

Acknowledgments

About the Author

Chapter 1

Introduction

Chapter 2

The Purpose of This Book

A. The System

B. Change Your Thinking

C. What Will We Say, to Whom, and How?

1. What Are We Going to Say?

2. To Whom Are We Going to Tell Our Story?

3. How Are We Going to Say What We Have to Say?

Chapter 3

A Brief Interlude

Chapter 4

An Early Cross-Examination: Susanna and the Elders

Chapter 5

The Bad, the Ugly, and the Good

A. The Bad News

1. The Witness

2. The Perry Mason Syndrome

3. Old School Cross-Examination

B. The Ugly News

C. The Good News

Chapter 6

Three Miscellaneous Considerations

A. The Purposes of Cross-Examination: Looking Good

B. Three Housekeeping Rules

C. Primacy and Recency

Chapter 7

The System, Part I: Short

A. Three Reasons to Be Short

B. How Short Can You Get Your Cross-Examination?

C. How to Make Your Cross-Examination Short

D. Transitions

E. Example of Cross-Examination Using the System

F. Looping

Chapter 8

The System, Part II: Statements

A. The Three Ways You Can Do Cross-Examination

B. The Law

C. The System Has a Philosophy

D. Crafting Your Statements

E. Details

F. Terms

G. Organization—Source of Materials

1. Witness Statements?

2. Verisimilitude?

3. Plausibility?

Chapter 9

The System, Part III: Control

A. Pace

B. Listen

D. The Intractable Witness

E. Exceptions

F. Safe Havens—What to Do When You Get Hurt

Chapter 10

Additional Considerations

A. Possible Exceptions to the System

B. Misdirection

C. Ethical Considerations

Chapter 11

Why the System Works

Appendix: Examples of Cross-Examination

Terence F. MacCarthy (Chicago, Illinois)—

Cross-examination of a psychiatrist in a federal

bank robbery

Michael A. Sherman (Santa Monica, California)—

Cross-examination of a plaintiff’s CEO in a civil

trade secrets case

Alison Siegler (Chicago, Illinois)—Cross-examination

of a prosecution witness in a federal narcotics case

Steven R. Shanin (Chicago, Illinois)—Cross-examination

of a police detective in a federal narcotics case

James Mercante (New York, New York)—Cross-

examination of a captain in an admiralty case

Heather E. Williams (Tucson, Arizona)—Cross-

examination of a county sheriff officer in a federal

murder case

John Buckley, Ungaretti & Harris, Chicago, Illinois—

Cross-examination of a securities trading firm

Index

Acknowledgments

This book is dedicated to, in proper order, three groups of people.

First and obviously, my wonderful wife, Marian, who, because of her many years with me, is assured a place in heaven. Our children, who fortunately usually act like their mother: our eldest, Dan; Sean and his lovely wife, Micha; my namesake, Terry, and his wonderful wife, Aicha Marie; and our daughter, Megan, and her great husband, Tim O’Sullivan. Also our delightful and entertaining grandchildren, Kylee, Leah, Donal, Jude, and the twins, Deirdre and Dori. They keep me going.

Next, I thank all of the dedicated lawyers and supporting staff with whom I have had the privilege of working at our Federal Defender office. Also my fellow Federal Defenders and their committed lawyers and support staff, who are responsible for the finest defender services the world has ever known.

The third group (note my love for having three things) is as large as it is important.

Trial lawyers are indeed a special group. They profit much from the opportunity to work together and exchange ideas. They profit much from the comrades they enjoy. They profit much from their mutual love for what they do.

I have been blessed by the opportunity to work with and learn from many trial lawyers and judges. In appreciation, I dedicate this book to them.

About the Author

Terence F. MacCarthy has been the executive director of the Federal Defender Program in the U.S. District Court for the Northern District of Illinois for more than 40 years. He was selected for the position in 1966 by the judges of the District Court and the deans of the six Chicago law schools. The office is frequently mentioned as being one of the best defender offices in the country. In addition to his administrative responsibilities, Mr. MacCarthy continues to personally try cases and to train and assist his staff of 20 attorneys.

Mr. MacCarthy received a B.A. in philosophy from St. Joseph’s College in 1955 and a J.D. from DePaul Law School in 1960. He was a law clerk to former Chief Judge William J. Campbell of the U.S. District Court for the Northern District of Illinois and served as Illinois Special Assistant Attorney General, specializing in civil trials and appeals. His criminal experience is primarily in the federal courts, where he has tried and appealed many cases. He has argued before the U.S. Supreme Court. He is a sought-after speaker at continuing education programs, and has lectured in all 50 states and more than a dozen foreign countries.

Mr. MacCarthy has received numerous awards, including special awards from both his undergraduate college and his law school. He received the University of Virginia School of Law William J. Brennan, Jr. Award, the Harrison Tweed Special Merit Award from the ABA, and the Reginald Heber Smith Award from the National Legal Aid & Defender Association. In 2000 he received the Defender of the Century from the Federal Defenders Association and the Inns of Court Professionalism Award for the Seventh Circuit.

A member of the ABA for more than 30 years, Mr. MacCarthy has chaired the Criminal Justice Section and served on its council for more than 20 years, including seven as section representative in the House of Delegates. He served on the Board of Governors from 1997 to 2000.

Introduction 1

Most trial lawyers and an even greater number of trial advocacy teachers, and even some casual trial observers, are in general agreement that cross-examination is the skill most lacking in trial lawyers.

My own experiences buttress this conclusion. Having taught trial advocacy to thousands of lawyers, I am convinced that cross-examination is the most difficult skill for a trial lawyer to learn. Interestingly, I believe direct examination to be the second most difficult trial skill.

My epiphany came not in a courtroom but while teaching other lawyers. I have had the honor of teaching at the National Criminal Defense College since its inception. In the early years, I lectured on opening statements. Teaching opening statements to my small breakout group (always eight lawyers) was a professional joy. I used the National Institute for Trial Advocacy (N.I.T.A.) teaching method. After the lawyers delivered their openings, I would invite critiques from the others in the group. What did the lawyer do well, and why? What did the lawyer do badly, and why? I would then critique. As intended and desired, the opening statements got better as we moved along. The day was personally and professionally fulfilling.

The day spent with the cross-examination group was a disaster. With the critique method, the results were far from satisfactory. The lawyers did not, as they did with opening statements, get better as the day went on.

In truth, the orientation lectures on cross-examination were more this is what I can do, than this is what you should be doing. Still, this alone would not explain the failure to improve.

The main problem, I accepted, was me. I was not a good cross-examiner, and therefore I could not effectively teach cross-examination.

Frustrated, I finally asked the dean for a float on cross-examination day to visit many of the practice sections. I purposely visited those I thought would have the better teachers of cross-examination.

To my surprise and disappointment, what I saw was essentially what I had experienced. If the lawyers improved at all, it was not by much. There was a problem, but it was not me.

The following year I abandoned the N.I.T.A. system of post-critiquing. Rather, I immediately interrupted the lawyer when he or she did something wrong. The amazing result was that I better appreciated how one should cross-examine. Also, I was demonstrating and teaching the group, which, similar to the opening statement group, did improve as the day went on. This was a wonderful experience.

Over the next few years, the teaching opportunities and several federal trials resulted in the development of my contrarian views about cross-examination. The system, though still developing, was born.

The actors and actresses at the college were the first to notice how well my cross-examination group was doing. Soon other faculty, those with floats, came by to see what we were doing.

Next, the dean asked me to put what I was doing into a talk. Since then I have switched from lecturing on opening statements to giving the orientation talk on cross-examination. I have given this cross-examination talk in all 50 states.

In addition to teaching lawyers, I have also had the honor to sit for many years as a judge-evaluator in the finals of the ABA Criminal Justice Section—John Marshall Law School trial advocacy competition. The young men and women who participate in this excellent program are exceptionally well prepared. Indeed, they should be. They will have tried the same case several times before they appear in the finals. Their trial advocacy teachers, who are more coaches than law professors, do a wonderful job of preparing their teams.

That said, year after year, these committed law students deliver outstanding closing arguments and excellent opening statements. Yet once a witness is put on the stand, the quality of trial advocacy diminishes. The direct examinations are not done particularly well, and the cross-examinations are the weakest aspect of the

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