Tactics used in Cross Examination
Types of questions presented to experts
While there are a lot of different type of questions that are posited to the expert by the cross-examining attorney, such as, unanswerable questions, questions that emphasize alternate explanations, questions that are not really questions, we will cover some of the most commonly asked questions during the cross examination of the expert.
Leading or Yes/No questions
The attorney conducting cross-examination (CrA) frequently poses questions that limit the expert's response options. Many of the questions posed during cross-examination will be leading, implying a response. As a result, the expert's cross-examination comments are sometimes categorised as "fragmented speech" or "powerless speech," which is characterised by short responses and is less convincing than the narrative speech the witness engages in during direct examination (O'Barr, 1982). For example, "Isn't it true that the Validity Indicator Profile hasn't been normed on people with intellectual disabilities?"
Here’s the link to a video that demonstrates how leading questions are asked to experts during cross-examination.
https://drive.google.com/file/d/1VhXRzLfazIQ-VWXYaZh3WI3bKBS7-F8c/view?usp=sharing
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Responding to leading questions
Framing questions such that the answer should be "yes" is a good approach because it appeals to the expert's desire to look competent and reasonable in front of the Court while also assisting the cross-examiner in keeping control over the expert. By replying in this manner, the expert will feel more at ease refuting such an answer when it counts most, as well as demonstrating to the cross examining attorney and legal decision maker that he or she is an objective "straight shooter." There are a variety of methods to respond to questions for which a simple "yes" or "no" response is insufficient (Otto, Kaye, & Hess, 2014). The witness might declare if he or she is willing to respond "yes" or "no" and request for the opportunity to elaborate on their response.
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Confusing or compounding questions
Attorneys occasionally ask inappropriate questions, which are generally accidental (Graffam Walker, 1999). The question may be so perplexing that the deponent does not grasp what is being asked. If the deponent is unable to answer the question because it is too complex to comprehend, an objection may be appropriate. They might be poorly written, ambiguous, or complex. When two or more questions are joined into one, the result is a compound question. It is often inappropriate to ask numerous questions at once if various sections of it may be answered differently. E.g. Doctor, did you establish an opinion on the plaintiff's diagnosis at the hospital, and do you still hold it?
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Responding to Confusing or Compounding Questions
After discussing their concerns with the counsel and the court, experts should feel free to refuse to answer such questions. When the expert is asked a compound question (one that incorporates two or more topics), the opposing attorney may object. If not, or if the objection is overruled, the expert might accept the question's complexities and make a good-faith effort to explain it. In other circumstances, merely asking the attorney to repeat the question may be enough. Gutheil (2007) showed how witnesses who are asked tough, unexpected, or aggressive questions may respond by trying to overwhelm the attorney with comments that avoid the question, which he refers to as “waffles”.
Here’s a video that shows confusing or compound questions being asked to the expert and how experts can respond to it.
https://drive.google.com/file/d/1P1hkdfRuTed7duvF0YLNj46QFBSg5pVW/view?usp=sharing
Hypothetical questions
A hypothetical question asked during cross-examination combines a mixture of assumed and/or established facts developed in the form of a specific situation. It is presented to an expert witness with the intention of eliciting an opinion. Hypothetical questions provide the attorney the opportunity to (a) reinforce in the mind of the decision maker facts that are favorable to his or her argument, and (b) elicit favorable opinions from the expert that depend on facts that are in dispute or are yet to be proven (Rubinowitz & Torgan, 2006). Given below is a video that shows the use of hypothetical questions by the opposing attorney in a court
https://drive.google.com/file/d/1dY_bIsLsP_ECO-nAhfrV5gmZNiWEEuVj/view?usp=sharing
Responding to Hypothetical Questions
The expert can offer an opinion. The expert should only offer an opinion, however, if he or she has been provided with all of the necessary information and has been afforded enough time to come to a considered and informed opinion. Some hypothetical questions are notorious and can “stretch the bounds of the expert’s imagination” (Gutheil & Appelbaum, 2000, p. 342). Attorneys have also been known to ask hypothetical questions that include assumptions that are directly contrary to the facts in the case at hand. In response, the expert is free to make such contradictions or inconsistencies clear.
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Questions to which One Does Not Know the Answer
This applies to both general and case-specific issues. During cross-examination, the questioning counsel may state a case-specific fact as if it were true by asking a question (e.g., "Doctor, you are aware that the defendant was hospitalised a total of three times prior to his arrest on the present charge, are you not?").
Responding to such Questions
Acknowledging the assertion's correctness is appropriate if one understands it to be correct. For fear of looking unprepared, the expert may be persuaded to agree with the claim, not knowing if it is accurate or not. The ideal reaction is for the witness to admit his or her ignorance and say that he or she is prepared to accept it is true as described by the attorney or that he or she would want to examine his or her materials to confirm what was said.
Specific tactics used by the cross-examining attorneys to discredit the expert
Another ploy of the cross-examining counsel is the use of flattery, which may induce the witness to relax his caution and express opinions which he would normally inhibit. In this respect, the cross-examining counsel, having acknowledged the eminence of the witness and his long experience in professional problems, will use the 'exception' ploy. This is to force the witness to admit that exceptions exist in most of the rules. The best defence to this line of attack is to remember that it’s the expert opinion which is being questioned, not real scientific facts. Psychometric assessments or records cannot be challenged but only their interpretation & inferences can be.
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Other potent method of attacking the witness by cross-examining counsel is known as the cul-de-sac (dead-end street), rather akin to the chess player's 'fool's mate'. The counsel leads the witness in a certain direction with questions which seem only marginally relevant and which the witness is only too happy to agree with, being grateful for the relief from the more critical questioning. Gradually he finds himself, in order to be consistent, agreeing with questions he is not too sure about, but is not too worried since these do not appear to affect the main issue. Eventually he finds himself committed to a particular point of view.
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To check out the media portrayal of this case, visit our Media Portrayal page at -
Mistranslation is one method of discrediting the witness. The expert delivers a remark, which the cross-examining counsel interprets into simple words for the jury's advantage. However, in doing so, he purposefully twists the meaning such that the expert's comment appears silly or unbelievable. Here’s a video that shows how the cross-examining attorney can try to mistranslate the expert’s words to insinuate the favourable meaning to the Court.
https://youtu.be/-XjHN-YqpeI (07:54- 09:40)
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One of the most destructive cross-examination techniques is to challenge the witness with an undeniable fact that contradicts what the witness has just stated or placed in his written report. This encounter may be provided by a letter or report written by the witness, or by an entry placed in the patient's case notes by the witness or another professional. In the video given below, one can see how established sources like DSM-5 can be held against the expert if there is anything in it that they have not complied with.
https://youtu.be/-XjHN-YqpeI (34:20- 38:41)
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The counsel of the opposing side often will be listening attentively during the examination-in-chief, making note of any possible inconsistencies occurring in what they say. Some information for confrontation may be gathered by directing the inquiry into areas that, to the psychologist, appear to be unrelated to the topic at hand. In this manner, the expert is frequently taken off guard and may make remarks that he would otherwise be unable to utter. The witness's acknowledgment of mistake certainly reduces his seeming competence. This video is an example of how the inconsistencies in what the expert is noted carefully by the CrA and are used in the Court to discredit the expert.
https://youtu.be/-XjHN-YqpeI (39:26 -41:10)
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Foundational Events of Cross- Examination
Courts allowed experimental psychologists to testify as expert witnesses since the commencement of modern psychology in Europe. The first psychologist known to have testified in court was Schrenk-Notzing, a student of Wundt, regarding the trustworthiness of witness testimony in a Munich murder trial in 1896. Another Wundt student, Marbe, is said to be the first psychologist to testify in a legal case in 1911.
In the landmark Frye case in 1923, the previous long-held standard for scientific evidence and expert witness testimony was established (Frye v. United States). In one case of cross examination, the expert witness actually defeated the inquisitor in Attorney General v. Parker & Hume (1954).
The whole debate of whether a psychologist is competent to state professional opinions as an expert witness concerning the nature, and existence or non-existence, of mental disease and defect began with the case of Jenkins v. United States (1962) on the issue of insanity defence. Judge Bazelon of the United States Court of Appeals for the District of Columbia Circuit, decided for the first time that psychologists who were properly certified might testify in court as experts on mental disorders.
The expert testimony in the R v Chamberlain trial (1984) is a well-known example of successful cross-examination of expert witnesses as significantly influencing the eventual result of the trial. The prosecutor's successful cross-examination of expert witnesses had a significant impact not only on the jury verdict, but also on the later appeal processes. Two of the defense's expert witnesses had displayed "unbecoming arrogance," according to Gibbs CJ and Mason J in the High Court judgement.
The Daubert v. Merrell Dow Pharmaceuticals ruling from 1993 modified the admissibility requirements set down in Frye (1993). The United States Supreme Court created a new paradigm in this important judgement by ruling that the Federal Rules of Evidence give the trial judge the position of gatekeeper, giving the judge extensive discretion in deciding whether all scientific evidence should be admitted into the courtroom.
Check out the media potrrayls of a few cases mentioned-
Cases on Cross- Examination Tactics & Recent developments
One potent method of attacking the witness by cross-examining counsel is known as the cul-de-sac. Abraham Lincoln is credited with inventing the cul-de-sac attack. In the 1858 case People v. Armstrong, later dubbed the Almanac Case, he induced the alleged eye-witness into a position in which he could only account for his significant observation by saying there was a moon. Lincoln then produced an almanac showing there was no moon, and the witness was discredited.
Overemphasis by the expert witness tends to make the opposing counsel consider the evidence more deeply than he otherwise might, and sometimes leads him to ask other experts for advice on where to look for chinks in the armour of the witness. Probably the best example of this occurred in the murder trial of R. v. Seddon (1912).
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In a research undertaken in 1999 by Dr Ian Freckelton SC et al., judges were asked what the most significant causes for insufficient cross-examination of expert witnesses were . They cited a lack of preparedness by the cross-examiner, an inadequate skills by the cross-examiner, confusion in the advocate's use of terminology, not having their own experts present when other expert witnesses testified, and a proclivity on the part of the lawyer to allow witnesses to go over the limits of the expert's knowledge and experience as reasons for their decision.
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Melton et al. (2007) discussed a strategy sometimes employed by cross examining attorneys that is designed to raise questions about the expert’s general knowledge and expertise, which they termed the “God Only Knows” gambit. Brodsky and Heller (2008) discussed a cross-examination technique they described as use of the “perfect phantom” and offered several ways in which the witness could respond to such inquiries.
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The Expert Persuasion Expectancy Framework, developed by Martire et al., (2020), elicited eight criteria that determine expert persuasiveness. Field and trustworthiness and foundation and consistency were found to be important criteria that function as believability indicators. Hence, experts need to act according to these criteria to be able to persuade the jury and the court to accept their opinion.
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Indian Context
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In the Indian context, cross examination of a forensic psychologist in the high profile Aarushi-Hemraj double-murder case would have improved the course of the case. A leading forensic psychologist from Gujarat, Dr SL Vaya, who had examined the suspects said that she had found Talwars to be “innocent”. She also confirmed that she had not been able to give a “conclusive, definitive” clean chit to the servants. However, she wasn't called into court to testify else the outcome would have been different.
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Recent Case
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In Harvey Weinstein's rape trial, psychologist Elizabeth Loftus testified for the defence, explaining how memory may get warped with time. Loftus, a renowned professor at UC Irvine, has testified in over 300 trials and served as an expert witness in a number of high-profile sexual misconduct and murder cases, including those involving O.J. Simpson, Ted Bundy, Robert Durst and the cops charged in the Rodney King beating.
Important Cases/ Events
References
1) Boccaccini, M. T., & Brodsky, S. L. (2002). Believability of expert and lay witnesses: Implications for trial consultation. Professional Psychology: Research and Practice, 33(4), 384–388. https://doi.org/10.1037/0735-7028.33.4.384
2) Cappellino, J. A. D. (2021, September 7). Daubert vs. Frye: Navigating the Standards of Admissibility for Expert Testimony. Expert Institute. https://www.expertinstitute.com/resources/insights/daubert-vs-frye-navigating-the-standards-of-admissibility-for-expert-testimony/
3) Gudjonsson, G. H., & Haward, L. (1998). Forensic Psychology: A Guide to Practice (1st ed.). Routledge.
4) Gulati, S. (2017, October 12). Was a Top Forensic Doctor Who Found Talwars ‘Innocent’, Silenced? TheQuint. https://www.thequint.com/news/india/was-a-top-forensic-doctor-who-found-talwars-innocent-silenced#read-more#read-more
5) Martire, Kristy & Edmond, Gary & Navarro, Danielle. (2020). Exploring juror evaluations of expert opinions using the Expert Persuasion Expectancy framework. Legal and Criminological Psychology. 25. 10.1111/lcrp.12165.
6) Otto, R. K., DeMier, R., & Boccaccini, M. (2014). Forensic reports and testimony: A guide to effective communication for psychologists and psychiatrists. John Wiley & Sons.
Note: All the videos have been taken/referred from Netflix/YouTube