Jamison Koehler posts about a CLE he attended that included a breakout session on the cross of the chemist.
[Presenter Ed] Shacklee was talking about how intimidating it can be for a non-scientist to cross-examine a government chemist. Sometimes we also have to deal with a cranky judge who is annoyed with us for dragging the whole thing out: The test shows that it was a controlled substance. Why are you wasting all of our time?
But it can and should be done. You focus on a few areas in which the government is vulnerable. And then you do it again and again, each time learning from your mistakes the previous time.
Excellent, yet sad advice. There is much truth in the fact that we learn from each experience, and eventually, become sufficiently competent that we can become effective. Of course, it helps to begin with a solid base of knowledge in the subject area, ranging from scientific method to learned treatises and the inherent flaws of accepted testing methodologies. These are all available for any lawyer interested enough to look for them, and don’t require a post-doctoral degree to appreciate.
But as Jamison raises via the great showman, Irving Younger, “you need at least 100 trials under your belt before you can really call yourself a trial attorney.” Even with the effort of learning, if not mastering, the science behind the testimony, the ability to conduct an effective cross, especially of an expert, doesn’t come from a book.
Having enjoyed lectures by Irving Younger at Cornell, I can attest to his ability to captivate an audience with his drama, if not his content. If only he could dance.
But Jamison goes on to raise a dubious approach that offers some surface appeal:
Private attorney Scott DiClaudio used to wait until the government spent all sorts of time qualifying a police officer as an “expert.” His first question would then be: How many grams are there in eight-ball? Sometimes it was even more basic: How many grams are there in an ounce? I never once saw him use this tactic unsuccessfully. Suddenly the “expert” didn’t seem quite so formidable. Suddenly he didn’t look quite so smug.
Tricks like this are great when they work. The problem is that they don’t always work. While some cooks are aware that there are 28.3495 grams in an ounce, many are not because Americans generally suck at the metric system. Would it shock a jury if the testimony was “beats me, it’s not something I’ve ever needed to know”?
But the eight-ball question is even more problematic. Shockingly, not everybody knows what an eight-ball is (it’s an eighth of an ounce, and a commonly used drug term) because not everybody buys cocaine. The correct answer is 3.5 grams, but would you know that?
So what if the police officer “expert” testifies in response to the eight-ball question that it’s 5 grams? Clearly wrong, but there is an excellent chance the no one on the jury will know. And then what?
Ask the judge to take judicial notice that the expert’s response was wrong? While a judge might do so when the question involves standard units of measurement, no judge will ever take judicial notice about the meaning of a drug term.
Announce to the jury that the expert is a blithering idiot? The lawyer isn’t a witness, a point that most clients find troubling since they tend to expect that the lawyer will stand up, just like they do on TV, and offer their story and attack the story of the other side, without their ever having to utter a word or leave their seat. They’re shocked to learn that lawyers can only argue facts in evidence, and evidence is what comes from the mouths of witnesses.
Retain a defense expert and call her as a witness for the sole purpose of testifying that the expert’s eight-ball testimony was wrong? Not only has the jury long since forgotten the irrelevant prosecution testimony, but it highlights the lack of a defense, since the best the defense can do is pick on some puny, inconsequential detail after the expert has given persuasive testimony about the substantive drugs involved in the case. Plus, does the defendant have the wherewithal to retain an expert? Can an expert be found in the midst of trial? Not too often.
To be clear, clients adore gimmicks. They truly believe that trials are little more than charades where the side with the best tricks prevails. Tell a defendant of your plan to trick the expert and make him come off as the fool and watch the defendant’s face light up. But you may also see that smile turn upside down if the trick falls flat.
I’ve used gimmicks. Every trial lawyer gives them a try, and the feeling when they work is fantastic. Everybody loves beating the system. But I’ve seen them fail as well. And I’ve seen them backfire. And I’ve seen them backfire with devastating effect. Nobody likes to talk about how a really cool trick question ends up burning the defendant, so I will. It happens. And after it happens, you can’t unask the question.
Before relying on a trick question to beat a witness, consider whether the value of it succeeding is greater than the harm it might do if it fails. And never rely on a trick alone, even if someone tells you it never fails. You still need to learn, know, and be able to use, substantive knowledge of the testimony and cross. Just in case this trial, this defendant, is the one where the gimmick doesn’t save the day.