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NAVIGATING THE CRUCIBLE OF CROSS-EXAMINATIONJenifer Markowitz
ND, RN, WHNP-BC, SANE-A, DF-IAFNSasha Rutizer, Senior Trial
Attorney, U.S. Dept of Justice
Disclosure■ The planners, presenters, and content reviewers
of
this course disclose no conflicts of interest. ■ In order to
receive a certificate documenting
contact hours, you must evaluate the sessions you have attended,
and complete the overall conference evaluation. Your contact hours
received will be commensurate with your attendance.
■ The International Association of Forensic Nurses is an
accredited provider of continuing nursing education by the American
Nurses Credentialing Center’s Commission on Accreditation.
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Road Map■ Purpose of cross■ Your role at trial■ Common areas of
challenge:
Qualifications■ Common areas of challenge: The exam■ Common
areas of challenge: Expert
myopia■ Common areas of challenge: Opinions■ Vulnerability■
Strategies for success
“Cross-examination is the greatest legal engine ever invented
for the discovery of truth. You can do anything with a bayonet
except sit on it. A lawyer can do anything with cross-examination
if he is skillful enough not to impale his own cause upon it.”
– John Henry Wigmore
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Road Map■ Purpose of cross■ Your role at trial■ Common areas of
challenge:
Qualifications■ Common areas of challenge: The exam■ Common
areas of challenge: Expert
myopia■ Common areas of challenge: Opinions■ Vulnerability■
Strategies for success
Purpose of cross
■ Getting good stuff for my case– Facts that are favorable–
Areas of agreement– Coopting you to make
points for me■ Discrediting you, your
testimony and/or another witness (e.g. treating clinician,
victim) through you
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Road Map■ Purpose of cross■ Your role at trial■ Common areas of
challenge:
Qualifications■ Common areas of challenge: The exam■ Common
areas of challenge: Expert
myopia■ Common areas of challenge: Opinions■ Vulnerability■
Strategies for success
Know Your Role
If you don’t fundamentally understand your role, cross
examination becomes much more fraught with potential minefields
– Role of the treating clinician– Role of the independent
prosecution expert– Role of the independent defense expert
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Road Map■ Purpose of cross■ Your role at trial■ Common areas of
challenge:
Qualifications■ Common areas of challenge: The exam■ Common
areas of challenge: Expert
myopia■ Common areas of challenge: Opinions■ Vulnerability■
Strategies for success
QUALIFICATIONS: TO RENDER THIS/ANY OPINION
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QUALIFICATIONS: EDUCATION
QUALIFICATIONS: CLINICAL EXPERIENCE
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Road Map■ Purpose of cross■ Your role at trial■ Common areas of
challenge:
Qualifications■ Common areas of challenge: The exam■ Common
areas of challenge: Expert
myopia■ Common areas of challenge: Opinions■ Vulnerability■
Strategies for success
EXAM: DOCUMENTATION
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Documentation
Terms Method for obtaining history
What wasn’t documented
Photography: quality or absence of
EXAM: METHOD
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Method
Protocols Techniques used
EXAM: EVIDENCE COLLECTION
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Evidence Collection
INTEGRITY PRESERVATION
Road Map■ Purpose of cross■ Your role at trial■ Common areas of
challenge:
Qualifications■ Common areas of challenge: The exam■ Common
areas of challenge: Expert
myopia■ Common areas of challenge: Opinions■ Vulnerability■
Strategies for success
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REFUSAL TO MAKE CONCESSIONS
■ Concede what is possible– If a clinician digs their heels
in on the question of whether something is possible, the
resulting questions can leave them looking biased or
argumentative
■ There is a difference between possible and probable
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Road Map■ Purpose of cross■ Your role at trial■ Common areas of
challenge:
Qualifications■ Common areas of challenge: The exam■ Common
areas of challenge: Expert
myopia■ Common areas of challenge: Opinions■ Vulnerability■
Strategies for success
OPINIONS WITHOUT SUPPORT
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Beware of the most meaningless phrase: “best practice”
OPINIONS WITH STATISTICS
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Road Map■ Purpose of cross■ Your role at trial■ Common areas of
challenge:
Qualifications■ Common areas of challenge: The exam■ Common
areas of challenge: Expert
myopia■ Common areas of challenge: Opinions■ Vulnerability■
Strategies for success
Ways People Make Themselves Vulnerable■ Refusing to concede the
obvious or easy■ Failing to know the science; cherry-
picking the science; bending the science to fit your opinion■
Straying from standards of practice
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Ways People Make Themselves Vulnerable■ Getting snippy with
counsel on cross is usually
a losing proposition. Nothing positive can ever come from it,
but plenty of negative can. – Counsel has had days to build rapport
with the
jury; you’ve had minutes. – Counsel can characterize you and
your testimony
any way they choose during closing arguments and there’s nothing
you can do to rebut it.
Road Map■ Purpose of cross■ Your role at trial■ Common areas of
challenge:
Qualifications■ Common areas of challenge: The exam■ Common
areas of challenge: Expert
myopia■ Common areas of challenge: Opinions■ Vulnerability■
Strategies for success
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Strategies for Success
■ Find the supporting documents■ Familiarize yourself with your
foundations■ Practice out loud■ Peer review testimony■ Assume
reading is a non-negotiable part
of your job
Things NOT to do after a tough cross:
1. Go back and change the way you practice
2. Quit
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