Criminal Justice Section  

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Criminal Justice Magazine
Summer 2000
Vol. 15, Issue 2

Trial Tactics

Stephen A. Saltzburg

Rhetorical Questioning

The case of United States v. Levine, 180 F.3d 869 (7th Cir. 1999), illustrates how an evidence fight may arise when a lawyer cross-examines a witness by asking what the court of appeals calls rhetorical questions. This column will examine Levine and several other cases in order to demonstrate the kind of questions that are and are not permissible.

The facts of Levine

Defendant Michael Levine was charged with and convicted of defrauding a company named Alexsis. Ironically, Alexsis sought to help insurers detect fraudulent workers' compensation claims, and, in the process, became a victim. Alexsis sometimes hired private investigators who tried to find out whether an applicant was disabled to the extent claimed. One of the people involved in the fraud, James Batista-described by the court as "a shadowy figure" whose connection to Alexsis was muddy-funneled some of the investigative work to two businesses in which Levine participated. After Alexsis paid one of the companies for a job, Levine gave Batista $680 as a "finder's fee." Although Batista insisted on cash payments, the bookkeeper for the companies wanted all transactions documented. So Levine arranged for the bookkeeper to write checks to another business that Levine controlled. That company issued new checks to fictitious payees or to individuals who had not provided any services. Levine signed their names and cashed the checks. He used some of the proceeds to pay Batista, and kept the rest for himself. In some instances the work for which Alexsis was billed had never been performed at all. Some of the individuals listed as detectives for the two companies that billed Alexsis testified at trial that they had not done any of the work billed. The evidence suggested that Levine created fictitious findings for Alexsis.

Objected to use of word "forgery"

Levine testified in his own defense at trial. He conceded that he procured checks payable to real persons and others who had not provided services in connection with the investigations, and then cashed these checks. He insisted that this device was just a way to pay Batista or other investigators who preferred cash. Levine admitted that he endorsed the checks using other persons' names, without their consent, and without forwarding the proceeds to them. He objected, though, when the prosecutor asked him on cross-examination whether he had forged the payees' names. Levine contended that the prosecutor's questions were improper because they called for a legal conclusion.

Appellate ruling

The court of appeals upheld the trial judge who overruled Levine's objection. It reasoned as follows:

We do not think that either Levine or the jurors would have believed that these questions preempted the definition of forgery in the jury instructions. Levine was free to answer by saying that he preferred a word other than "forgery" to describe his conduct, or that he would describe but not characterize his acts. Indeed, this is what happened; he replied that he "signed" the checks with names other than his own but denied that he "forged" anything. His counsel was free to (and did) argue to the jury that this process was lawful because it occurred with the express or implied consent of the checks' maker, and the named payees were not entitled to the proceeds. Matters of fact often overlap matters of law, however, and characterizations can have legal significance; that the answer to a question may lead to a particular legal conclusion does not put the subject off limits.

(180 F.3d at 871.)

The court looked beyond the label Levine put on his objection and observed that "Levine's real objection to the line of questioning is that the prosecutor was making a rhetorical point (for the facts had been established on direct), using a word freighted with connotations of wrongdoing." ( Id.) The court found that such rhetorical questioning is certainly permissible, because "putting one's own spin on events is a principal use of cross-examination." (180 F.3d at 872.) The court offered some examples to illustrate this point.

Witnesses can't insist that the prosecutor use euphemisms when inquiring into conduct that the indictment labels a crime. A prosecutor may ask an accused thief whether he stuck up the teller and robbed the bank; he may ask an accused drug peddler whether he sold drugs to an undercover agent; he may ask an accused pricefixer whether he joined a cartel; he may ask an accused killer whether he murdered the deceased. These are functionally identical to the question whether Levine forged signatures on the checks, and all are proper subjects of cross-examination, provided only that the judge makes it clear to the jury that neither the questioner nor the witness defines the elements of the offense. ( See United States v. Espino, 32 F.3d 253, 257 (7th Cir. 1994) (question whether the defendant was "admitting the conspiracy" was improper because it required a conclusion about the legal consequences of the defendant's conduct, and not just about the existence of a conspiratorial agreement).) "Forgery" was an apt description of the acts Levine performed; that the crime also is called "forgery" does not close the subject to inquiry.

( Id.)

United States v. Espino

United States v. Espino, 32 F.3d 253 (7th Cir.1994), is the case distinguished in Levine. Espino was convicted of conspiracy to distribute cocaine and marijuana, money laundering, and possession with intent to distribute marijuana and cocaine. Despite testimony by government witnesses that they engaged in narcotics transactions with Espino, he took the stand and denied the allegations. Espino also denied knowing one of the leading drug customers who testified for the government. He claimed that cash, a gun, and a beeper found in his apartment were part of his tavern business. Espino admitted on direct examination that he obtained 12 pounds of marijuana for one of the government witnesses (Robles) on one occasion during the spring of 1991 in exchange for a 1988 Corvette. He admitted that he obtained a second car, a 1984 Corvette, from Robles, but claimed the deal involved no drugs. Both of the cars Espino obtained were titled in the name of a codefendant. Espino explained on direct examination that he did
so to hide the cars from his wife during divorce proceedings.

The prosecutor had Espino repeat on cross-examination his admission that he sold 12 pounds of marijuana in 1991. Although Espino initially claimed that this was the only drug transaction in which he was involved, on further questioning he conceded that in the spring of the same year he transacted two other deals with Robles that involved a total of three-fourths of a kilogram of cocaine, as well as marijuana. Espino identified a source for the drugs. He also testified that his codefendant, Santos, was not involved in any drug trafficking or money laundering.

The prosecutor engaged in the following cross-examination of Espino:

Q. Okay. But you did deals with Robles involving cocaine and marijuana?

A. That's right.

Q. You had a continuing relationship with Mr. Robles where you supplied him with drugs in the spring of 1991?

A. That was three times that I gave him drugs.

Q. So that's a continuing relationship, correct?

A. Well, after that he disappeared and I never knew what happened to him.

Q. Okay. But it was more than one deal, right?

A. I am telling you very clearly that it was three times.

Q. Essentially what you're doing here today, Mr. Robles, is you're admitting the conspiracy, aren't you?

A. First of all, I'm not Mr. Robles.

Q. Mr. Espino.

A. Well, if-

Bowe [defense attorney]: I object to this question and answer. It's a legal conclusion and I object to any questions continuing to call for legal conclusions. It's beyond the scope of this witness.

The court: That's-

Lipscomb [prosecutor]: It goes to his motive for testifying right now, Judge.

The court: The objection is overruled. The witness is instructed to answer the question as best he can.

A. Well, if you call three times a conspiracy, fine.

(32 F.3d at 256.)

Relying on the objection by defense counsel, Espino argued on appeal that the trial judge abused his discretion by requiring Espino to answer whether he was "admitting the conspiracy," which demanded a legal conclusion and created the danger that the jury gave his response undue weight. The court of appeals agreed with Espino that the question was improper. It relied upon its prior decision in United States v. Baskes, 649 F.2d 471 (7th Cir. 1980), cert. denied, 450 U.S. 1000 (1981), in which it upheld a trial judge who prohibited cross-examination of a key prosecution witness as to whether he "unlawfully, knowingly and willfully conspire[d]" with the defendant and others to defraud the United States. (649 F.2d at 478.) In that case the court explained why such questioning contains legal terms of art and calls for improper opinion testimony by a nonexpert witness:

When, as here, a witness is asked whether the conduct in issue was "unlawful" or "willful" or whether the defendants "conspired," terms that demand an understanding of the nature and scope of the criminal law, the trial court may properly conclude that any response would not be helpful to the trier of fact. The witness, unfamiliar with the contours of the criminal law, may feel that the legal standard is either higher or lower than it really is. If either event is true the jury may accord too much weight to such a legal conclusion.

( Id.)

Baskes had held that it was not an abuse of discretion to prohibit rhetorical cross-examination using legal terms that require an understanding of the nature and scope of the criminal law. Espino went further and held that it is error to permit such cross-examination.

The Espino court held that the question posed to Espino, "[Y]ou're admitting the conspiracy, aren't you?" required an understanding of the elements of conspiracy law and demanded a conclusion regarding the legal implications of conduct. The question to a lay witness was therefore objectionable as being unhelpful opinion testimony and should have been excluded.

The court noted that the prosecutor could have asked Espino whether he had an "agreement" with Robles to supply cocaine. By using a nonlegal term, the prosecutor could have avoided the problem that was created when the defendant was asked to opine on the law of conspiracy. Although the court found that the trial judge erred in permitting the question and requiring an answer, it found that the error was harmless in light of the compelling evidence against Espino.

United States v. Sheffey

The third illustrative case is United States v. Sheffey, 57 F.3d 1419 (6th Cir. 1995), cert. denied, 516 U.S. 1065 (1996). Sheffey was charged with one count of second degree murder and two counts of assault resulting in serious bodily injury arising from an automobile accident in the Great Smokey Mountains National Park in Tennessee. His vehicle collided with a car driven by Martha Money, whose parents were passengers. As a result of the accident, the father died, and Money and her mother suffered serious injuries.

Sheffey had obtained a prescription drug to help him deal with personal problems, including excessive drinking. The pharmacist who filled Sheffey's prescription warned him that the drug causes drowsiness and that alcohol use with the drug could enhance drowsiness. The defendant admitted at trial that he had taken the prescribed drug and also had been drinking heavily on the day of the accident.

At the end of the direct examination of a government witness to the accident, the prosecutor elicited the following testimony:

Q. [assistant U.S. attorney Cook]: Based on your observations of the defendant's conduct, would you tell us whether, in your opinion, he was driving recklessly and in extreme disregard for human life?

Tollison [defense counsel]: Your honor, I object to that. That's the ultimate decision of the jury.

* * *

Cook: Sure it is. But the jury doesn't have the benefit of having been there, and I don't know why [it] couldn't consider her opinion under Rule 701.

The court: Based on the fact that she's been driving for 24 years, I think she can say what her opinion is.

Q. [Cook]: Would tell us [sic] whether, based on your observations of the defendant's conduct and your experience in having driven for that number of years, whether, in your opinion, the defendant was acting recklessly and in extreme disregard for human life?

A. In my opinion, for sure, definitely.

(57 F.3d at 1422.)

The witness's husband testified to the same events, and his direct examination ended much like his wife's:

Q. Based on your observations of the defendant's conduct, could you tell us whether, in your opinion, he was acting recklessly, in extreme disregard of human life?

Tollison: Your honor, again, I'm going to object to that question.

The court: Overruled.

A. Yes.

( Id.)

A third witness, Kirk Leonardi, testified to Sheffey's driving before the accident and ended his examination as follows:

Q. Based on your observations of Mr. Sheffey's driving, would you tell us whether, in your opinion, he was acting recklessly and in extreme disregard for human life in the fashion in which he was driving?

Tollison: Your honor, I object to that question again.

The court: Overruled.

* * *

Q. Based on your observations of the defendant, defendant's conduct, and the way he was driving, would you tell the ladies and gentlemen of the jury whether, in your opinion, he was acting recklessly and in extreme disregard for human life?

A. It was evident to me that he did not regard my safety like I regarded my safety. That's why I pulled off the road. I thought I was in danger. That's why I pulled off the road.

Q. Did you view his driving as placing others or as being in extreme disregard for human life?

A. To pass anyone on that road, you'd have to have complete disregard for human life.

( Id. at 1423.)

The final eyewitness to the events preceding the accident was Susan Leonardi who testified as follows:

Q. Based on your observations of the defendant's actions and conduct, would you tell us whether in your opinion he was acting recklessly and in extreme disregard for human life?

Tollison: Your honor, I'll make the same objection.

The court: Overruled.

Q. You may answer.

A. I can answer? Yes, in my entire driving career, and even as [sic] my career as a passenger in a car prior to that, I have never seen driving like that.

( Id.)

The court of appeals reasoned that Sheffey's objections, although relying on Federal Rule of Evidence 704 (ultimate issue), raised the question whether these opinions were helpful, since Rule 704 requires that evidence be otherwise admissible, and Rule 701 contains a helpfulness requirement. Sheffey argued that the testimony called for a legal conclusion and could not have been helpful to the jury. The court of appeals relied upon an analysis it had previously used in a civil case, Torres v. County of Oakland, 758 F.2d 147 (6th Cir. 1985):

The best resolution of this type of problem is to determine whether the terms used by the witness have a separate, distinct, and specialized meaning in the law different from that present in the vernacular. If they do, exclusion is appropriate. Thus, when a witness was asked whether certain conduct was "unlawful," the trial court properly excluded the testimony since "terms that demand an understanding of the nature and scope of the criminal law" may be properly excluded.

(57 F.3d at 1426, quoting 758 F.2d at 151 (citations omitted) (emphasis added).)

The court applied the Torres test to Sheffey's objections and reasoned as follows:

[W]e do not see any specialized legal terms in the question "Did Mr. Sheffey, at the time of the accident, drive recklessly and in extreme disregard of human life?" Simply because this question embraced the terms of the jury instruction on malice aforethought does not dictate a ruling that it called for a legal conclusion as defined by Torres. Indeed, jury instructions are carefully drafted and crafted to rely upon terms commonly used and understood in the vernacular. They permit jurors to draw from their own everyday experience in making legal conclusions, such as the one in this case that Sheffey was guilty of second degree murder. We see nothing in the terms "recklessly" and "extreme disregard of human life" that would require the jury to attempt to define for itself legal terms of art or to rely upon anything but their own life experience in determining Sheffey's guilt. Therefore, we hold that the district court did not err by admitting the answers despite Sheffey's protests that they called for a legal conclusion.

(57 F.3d at 1426.)

The court also rejected Sheffey's argument that the testimony was unhelpful to the jury because the jury was in just as good a position as the eyewitnesses to determine if Sheffey was driving recklessly and in extreme disregard for human life. In the court's opinion, "The jury did not have the same kind of contemporaneous and up close view of Sheffey's driving."

Lessons

There are several issues that arise from consideration of Levine, Espino, and Sheffey that may not have been clearly identified by the courts in their decisions.

o First, there may be a special danger in asking a party questions that contain a legal term. Levine and Espino involved questions to a defendant and Sheffey involved questions to nonparty witnesses. The three courts of appeals arguably should have paid more attention than they did to the difference between questioning a party and questioning other witnesses. Just as out-of-court admissions by a party are automatically admissible-even though the usual personal knowledge and opinion rules are not satisfied-because of the importance of party statements, in-court concessions by parties may carry special weight with a jury. Any question that asks a party whether he or she concedes something that is cast in legal terms should receive, upon objection, careful scrutiny. This is not to say that the objection will always be sustained, but it is more likely to be sustained when a party is questioned than any other witness.

o Second, more latitude may be given on cross-examination than on direct. One difference between Levine and Espino on the one hand and Sheffey on the other is that the former involved cross-examination and the latter direct examination. By definition, cross-examination occurs only after the party calling a witness has had the chance to develop at length the facts known to the witness. The Sheffey court did not focus on the fact that the questions that produced objections were put on direct examination. Other courts might find this to be important. After all facts are known, questions that use rhetorical words may in some instances be less harmful and less likely to be misleading than they might have been on direct examination. But Espino is a reminder that there are limits even on cross-examination.

o Third, even on direct examination more latitude might be given after a witness has testified at length about the factual basis for an opinion. It is hard to know from the facts of Sheffey how much detail the witnesses provided before being asked for their opinions in the terms used by the prosecutor. The more detail they provided, the less likely it is that the trial judge or an appellate court will be concerned that the opinions might have been misleading.

o Fourth, there may be more suggestiveness in using some terms than others. Although reasonable people might disagree on the point, it seems that a question about forgery may involve less suggestiveness than a question whether a person was acting recklessly and in extreme disregard for human life. A witness might invoke the term forgery sua sponte, since it is not uncommon for laypersons to use the term. Although laypersons also use the term recklessness, it is not common to hear them speak of extreme disregard of anything. Thus, the sugges-tiveness of a term may increase the force of an objection.

o Fifth, leading questions on direct examination may exaggerate suggestiveness. The Sheffey court did not seem to mind that the question about extreme disregard of human life was asked on direct examination and tucked into a leading question. The leading nature of a question on direct examination may increase the apparent suggestiveness of a term used in a question.

o Sixth, the more it seems that a nonparty witness is being asked to serve as a thirteenth juror, the more likely it is for an objection to be sustained. When nonparty witnesses are asked to resolve the question that will be put to the jury at the end of a trial, the danger is that the jury will perceive the witnesses, who were present at the scene of an event, as telling the jury how to vote. One reason for a rule limiting opinions to those that are helpful is to ensure that the jury does not defer to witnesses simply because witnesses are at the scene. Applying the law to the facts is the jury's job, not the witness's.

Stephen A. Saltzburg is the Howrey Professor of Trial Advocacy, Litigation, and Professional Responsibility at George Washington University Law School in Washington, D.C. He is also a contributing editor to Criminal Justice magazine and a member of the Section Council.