Today’s column is inspired by the trial of George Zimmerman in Florida, not for its
subject matter or outcome but for what it says about the efficacy and humanity of the fact-finding
process employed in criminal trials.
Like anyone who has followed the media coverage of this trial I saw a young female
witness held up for our scorn and contempt not only for how she enunciates words but for her
disclosure of “new” information at trial as well as her ultimately hostile demeanor. From my
perspective, however, it was a classic example of the superficiality associated with today’s
advocacy in general and cross-examination in particular.
The explanation for this begins with inconsistent statements, referring to statements made
by the same witness at different times that are inconsistent with each other in some respect.
Inconsistent statements are first of all a no-win situation for the prosecution – we’re
damned if they exist and damned if they don’t. If a witness makes inconsistent statements, the
argument is that they’re making it up as they go along, and if a witness says the same thing the
same way every time, like a broken record, the argument is that their testimony is coached,
rehearsed, scripted, etc.
What is critically important to understand is that, while witnesses can always be
impeached with their prior inconsistent statements, opportunities for the proponent of their
testimony to offer their prior consistent statements, i.e., their prior statements in their entirety,
are extremely limited.
The reality is that inconsistent statements by witnesses, keeping in mind that the
evolution of a defendant’s statement is a different animal altogether, are both natural and
inevitable for a number of reasons but first and foremost because the scope of one’s answer to
any question depends both on the question asked and who’s asking.
It’s true that law enforcement personnel sometimes ask witnesses to provide narrative
statements, as opposed to following a question and answer format, but witnesses generally have
no clue what we regard as important and therefore focus on what’s important to them. And,
where police do proceed by question and answer it is nowhere near as comprehensive as the
questioning that takes place in court.
Once seated on the witness stand, however, witnesses are not allowed to provide
narrative statements and strongly discouraged from volunteering information, indeed witnesses
who exceed the parameters of a question are often sharply reprimanded.
Now let’s assume that a witness has given both a statement to police and testimony at a
preliminary hearing, and fast forward to a trial where the witness is finally asked a question
whose responsive answer contains some “new” detail; when this happens we should chastise
ourselves for not thinking to ask that question before, because an omission is not fairly regarded
as an inconsistent statement unless it can be shown that the witness has previously been asked a
question that would tend to elicit that information, but incredibly, it’s the witness who is blamed
via cries of “you didn’t tell us that before” accompanied by considerable histrionics.
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This brings me to my next point, which is that, while some inconsistent statements occur
naturally and others are created inadvertently by investigators, who after all reduce their
interviews of witnesses to paraphrased reports as opposed to verbatim transcripts with an
inevitable loss of accuracy, most inconsistent statements are manufactured quite purposefully by
lawyers.
Key to the manufacture of inconsistent statements is the ability to ask leading questions,
which are loosely defined as those which suggest an answer. The attorney who calls a witness
must ask only direct (non-leading) questions, however, leading questions are not only allowed
but expected on cross-examination even though it is well established that leading questions
produce inaccurate and unreliable information, indeed in 1996 a task force of Michigan’s
Supreme Court created a forensic interviewing protocol which precludes the questioning of child
victims/witnesses in a leading manner for that very reason, and defenses in cases involving such
witnesses are still built around the nature of the questions asked and how they undermine the
credibility of the answers.
Ditto for cases involving confessions by adults where the defendants would like a doover – the defense focus is always on the nature of the questions asked and how they undermine
the credibility of the answers.
So, it’s always fascinating to contemplate the double standard according to which leading
questions in the hands of attorneys are characterized as tools designed for the noble and lofty
purpose of ferreting out the truth, while the same leading questions in the hands of investigators
are not only characterized as mean-spirited and underhanded but understood to be a source of
unreliable information.
Leading questions have also evolved to a point where the attorney simply makes a
statement of what he or she would like to be the truth, then demands that the witness endorse it
as true/false, yes/no even though either answer would be misleading, so witnesses often end up
endorsing something that’s only 80 or 90 percent true and in doing so are guaranteed of a mindnumbing hair-splitting session later.
Other techniques for manufacturing inconsistent statements involve focusing not on what
the witness knows, but on peripheral details such as duration, frequency, chronology, etc., that
force the witness to guess; the problem, of course, is that a guess will be different later, enabling
the witness to be made to look foolish and/or dishonest by an attorney armed with a transcript
and secure in the knowledge that its contents will not be revealed in their entirety.
There was a time when cross-examination was an art form, an introspective process by
which witnesses were compelled to examine their own choices, assumptions, motivations,
loyalties, etc., but it now consists of shoving a transcript in a witness’ face and demanding to
know whether he/she was lying then or lying now, unfettered by any obligation to provide a full
context.
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This is not to say that aggressive cross-examination is never warranted as there will
always be openly hostile witnesses who offer outlandish and obviously perjured testimony – I’m
talking about witnesses who didn’t choose to become involved and simply had the misfortune to
witness something relevant to a criminal prosecution by virtue of being in the wrong place at the
wrong time. I have seen such witnesses try their best to share whatever information they have
and be rewarded with ridicule and censure, especially if they at some point found a backbone and
started to bark back; my concern, of course, is that the next time they’re confronted with a choice
between reporting and withholding information relevant to a criminal prosecution they will
choose the latter.
I realize that attorneys will never be deprived of the ability to ask leading questions
because the constitutional right to confront witnesses makes them a sacred cow, but we could
restore meaning and fairness to the process simply by giving the fact-finder access to everything
a witness has said previously as opposed to forcing jurors to deal with snippets of prior
statements that are not only severely cherry-picked but scrubbed of most context.
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