Criminal Justice Section
Criminal Justice Magazine
Volume 20 Number 1
Dangers of Homicidal Cross-Examination
By Stephen A. Saltzburg
Stephen Saltzburg is the Wallace and Beverley University Professor at the George Washington University School of Law in Washington, D.C. He is also a contributing editor to Criminal Justice magazine and a Section delegate to the ABA House of Delegates.
Some lawyers and judges claim that more cross-examinations are suicidal than homicidal. They mean, of course, that more cross-examinations damage the examiner’s case than hurt the witness. Those who make the claim may be correct about the relative successes and failures of cross-examination, but they wrongly describe the end result. In fact, cross-examinations that fail are homicidal—i.e., the cross-examiner who fails makes a victim of the party whom the cross-examiner represents. The lawyer is the cause of a failed cross-examination, but it always is the client who bears the costs.
Reasons for failure
Cross-examinations fail for a variety of reasons. The examiner may misjudge the sturdiness of a witness, emphasize the wrong points, permit the witness to repeat damaging material, or make any number of strategic errors. But one of the most dangerous mistakes a cross-examiner can make is to open the door to evidence that otherwise would not be admitted.
One good example of how a cross-examination may open the door to evidence and damage a defendant is United States v. Edwards, 388 F.3d 896 (D.C. Cir. 2004). Edwards was charged with and convicted of possession of a firearm and ammunition by a convicted felon. The government’s case was relatively straightforward. The prosecution offered testimony of two police officers, Glover and Dove.
The officers testified as follows: They were in a marked police car when they saw a group of men loitering in front of a house in a neighborhood in which neighbors had complained about such gatherings. Glover yelled to the group that it had to move on. Edwards walked away, but as he did so, said “What the f*** you looking at?” The officers drove around the block twice and encountered Edwards both times. Edward made another comment to the officers, and Dove responded “What the f*** is your problem?” As Glover was getting out of the police car, Edwards began to run away through an alley, holding his left jacket pocket. Dove drove around to the other end of the alley and chased Edwards as he emerged. Edwards pulled a pistol out of his pocket and turned towards Dove, who knocked Edwards to the ground. The officers employed pepper spray and subdued Edwards.
On cross-examination of Glover, the defense attempted to show that Glover was harassing Edwards, and that Glover and Dove pursued Edwards in their car because he had used profanity in addressing them. At one point the examination went as follows:
Defense: You decided on that third sighting to stop your car there on Bates Street and confront him; is that right?
Glover: Yes, sir.
* * *
Defense: You and Officer Dove had talked about jacking up this guy who was vulgar and profane with you; isn’t that right?
Glover: No, sir.
Defense: You had talked about, I think maybe we should confront this young man about his profanity; isn’t that right?
Glover: About the profanity, sir, yes.
Defense: So you and Dove had talked about this is what we should do.
Glover: No. If we see him, find out what’s his problem, yes, sir.
(388 F.3d at 898.)
The prosecutor informed the court immediately after the cross-examination that he planned to ask Glover certain questions for rehabilitative purposes. The court asked defense counsel whether he had any objections, and defense counsel responded, “I’ll think about it.” The prosecutor then engaged in this redirect examination.
Prosecution: Defense counsel also focused on your pursuit of the defendant when he began running.
Glover: Yes, sir.
Prosecution: Have you pursued other individuals who have run when they’ve seen you?
Defense: I’m going to object on this point on relevance, what he’s done in other cases.
Prosecution: And it’s based on what we raised before.
Court: I understand that, and I am going to overrule the objection.
Prosecution: And why do you—on those other occasions when you’ve pursued individuals, have you recovered weapons and drugs?
Prosecution: Is that true in every case that you followed someone?
Glover: On a foot pursuit, yes.
Prosecution: Okay. And when he ran, did you have any suspicion?
Glover: The way that he was holding his left side of his body, like if he’s holding something from falling out of his jacket or pocket area, the left side.
Prosecution: What did you suspect? Did you have any suspicion about what it might be?
Glover: On foot chases like that, from my prior knowledge, could be. . . .
Defense: I’m going to object. This is clearly irrelevant. This is clearly improper.
(Id. at 898-99.)
Defense counsel elaborated at a bench conference following the objection that the prosecutor was attempting to establish that, because the officer had successful foot chases in the past, this must have been such a successful chase. The prosecutor responded that defense counsel had challenged the credibility of Glover, the nature of the encounter between Edwards and Glover, and Glover’s reason for getting out of the car. Urging that defense counsel had challenged Glover’s motive for acting, the prosecutor succeeded in persuading the judge that motive was relevant. The judge invited the defense to submit a limiting instruction, none was offered, and the prosecutor concluded his questioning as follows:
Prosecution: Why were you chasing this man?
Glover: Because he ran off from when I tried to make contact with him, and he was holding his left side inside of his jacket. It was my suspicion that he might have been carrying narcotics. They usually run and they throw drugs or possibly a weapon.
Prosecution: But you don’t know—he could have been carrying nothing; isn’t that correct?
Glover: Yes, sir.
(Id. at 899.)
Edwards did not testify, and the defense called no witnesses. The parties stipulated that Edwards had a prior felony conviction and that the pistol had been transported in interstate commerce. Thus, the case turned on the credibility of the officers when they described their encounter with Edwards.
On appeal, Edwards complained about the testimony by Glover concerning other chases. The government conceded that the testimony would not have been admissible had it been offered on direct examination, but argued that Edwards’s counsel rendered the testimony relevant by a cross-examination that impugned the officer’s motive for chasing the defendant.
The court of appeals agreed with the government. It rejected the claim that defense counsel did not imply that Glover had an improper motive for chasing Edwards after he fled, and only suggested the officer had an improper motive for repeatedly circling the block after their first encounter. The court stated that “[w]e do not believe that the cross-examination can be parsed so finely.” (Id. at 900.) The court noted that defense counsel’s closing argument clearly stated the defense theory of the case, which was to attack the officers’ motivation and credibility. The closing argument contained the following:
It doesn’t take any kind of fancy legal argument to figure out what was going on the night of December 6 at the unit block of Q Street. Mr. Edwards dissed the police. And within 10 minutes or less . . . he was chased, he was maced, and he was busted. He made a profane remark to the police, and within 10 minutes, he was chased, maced, and busted. And looking back on it, . . . isn’t it completely obvious that . . . after he made that remark and after the police started going around the block, . . . something bad was going to happen to Mr. Edwards?
(Id. at 901.)
Compounding the problem
Aside from the fact that defense counsel opened the door to the redirect examination, he compounded the problem by failing to accept the trial judge’s invitation to submit a limiting instruction to the jury. The court of appeals rejected the government’s argument that, by failing to offer an instruction, Edwards waived any argument that the evidence was unduly prejudicial and should have been excluded under Federal Rule of Evidence 403. It noted that it had rejected this same argument in United States v. Rogers, 918 F.2d 207 (D.C. Cir. 1990), where it held that the failure to ask for an instruction does not waive an objection that evidence should not be admitted in the first place. But the court opined that “the risk that the jury would misuse the testimony could have been further reduced by a limiting instruction.” (Id. at 902.) So, while the defendant did not waive the Rule 403 argument, the failure by defense counsel to request an instruction made the defendant partly responsible for any prejudice.
It is not clear that there was a substantial defense available to Edwards. He might well have been convicted regardless of the cross-examination of Glover. But, it is clear that the cross-examination opened the door to a kind of character evidence (i.e., people who flee have guns and drugs) that would never have been in the case otherwise. The case is a reminder that the cross-examiner must always consider whether a particular form of attack will result in making inadmissible evidence admissible. If so, the cross-examiner may be firing at the defendant more than at the witness.