Cross-Examining the Witness Who Qualifies the Answer
We lawyers love to ask yes-no questions on cross-examination. Trial advocacy schools teach us to ask such questions, but witnesses often refuse to give us yes-or-no answers. The witness’s refusal to give us the answer we crave may stem from many reasons. Let us examine three of them: (1) The witness may be trying to evade our question; (2) either by design or default, our question may be unfair or misleading; or (3) the witness may enjoy the sound of his own voice so much that he is incapable of giving us a short answer. When the witness fails to deliver, we almost instinctively seek either to punish the witness for disappointing us or to coerce the desired yes-or-no answer. We see ample evidence of this tendency in the transcript of the Lindbergh Kidnapping Trial.
The state called eight expert witnesses, each of whom identified Bruno Richard Hauptmann as the author of the ransom notes sent to Lindbergh. On cross-examination, the defense sought to elicit helpful testimony from the experts by asking questions which they desired to be answered either yes or no. Anyone who has had much experience in cross-examining experts knows that yes-or-no answers are very difficult to elicit from experts. Usually it is because we lack sufficient knowledge of the subject to frame an adequate yes-no question; sometimes it is because the witness is intoxicated by the sound of his own voice; and occasionally it is because the witness is trying to evade the question. When cross-examining the handwriting experts in the Lindbergh case, the defense often asked yes-no questions and seldom got yes-or-no answers. When the witnesses attempted to qualify their yes-or-no answers, the defense responded by trying to coerce the desired answers. They often tried to accomplish this by cutting off the witness’s qualification and proceeding to the next question. One, but by no means the only, example of this comes from the testimony of the expert Clark Sellers.
In his direct examination, Sellers had analogized recognizing handwriting by its distinctive characteristics to recognizing a person by his facial features. The defense attorney sought to demonstrate that it was a poor analogy by making a mundane point: Facial recognition requires no expertise, but handwriting examination requires training and experience. The questioning went like this:
Q: In other words, Mr. Sellers, the personal identification of Mr. Sellers as the handwriting expert who appeared in Trenton would simply be a matter of common observation, wouldn’t it?
A: Yes. I think most—
Q: And the identification of a man’s handwriting—