> I then asked the question one is taught never to ask on cross—the last one. “So, you signed an affidavit under the pains and penalties of perjury alleging probable cause to believe that Adam MacLeod committed a violation of traffic laws without any evidence that was so?”
As a layman, can anyone explain why they are taught not to ask this?
The reason is that if you've done your job so far, you have communicated the answer to that last unanswered question, and asking it is therefore high risk and low reward.
The risk is that the witness will flat out deny what they had essentially already admitted to, getting you tangled in rehashing things or else unable to actually prove your point.
More interestingly, the reward is often negative even when that doesn't happen, because it deprives the finder of fact (the judge or jury) of the opportunity to put the pieces together and draw your conclusion with an "aha!" moment and the feeling that the conclusion is their own.
> More interestingly, the reward is often negative even when that doesn't happen, because it deprives the finder of fact (the judge or jury) of the opportunity to put the pieces together and draw your conclusion with an "aha!" moment and the feeling that the conclusion is their own.
The risk argument makes a lot of sense to me, but this part seems to be putting a lot of faith in the competence of a jury of your peers.
Well, we do put a lot of faith in them, in most criminal cases. More than that. And you can always come back to it in closing arguments to put the pieces together explicitly.
I've always imagined the jury system as being the least of all evils, not an expression of faith in the decency and competence of your fellow citizen. It's the same thing with Churchill's famous quote about democracy: just because it's better than all the alternatives doesn't mean that voters have to be even attempt to be remotely reasonable.
I'd imagine that this "last question" guideline exists because of the experience of trial lawyers, so I'm certainly not saying it's wrong. I was just surprised that that's the way it shakes out. The closing argument thing does make sense, but that seems like it would also deprive the jury of the opportunity to piece it together themselves.
I assume the lawyer would spell it all out in closing arguments. The difference is that at that time the lawyer can comment and interpret, and there isn't a witness that might respond unpredictably.
Because in a cross examination, you're supposed to ask very narrow closed questions (yes/no answers only) in a series, so that you get the evidence out in the way you want the decisionmaker to hear it. Ideally, the witness isn't supposed to catch on to where you're going so that they don't try to weasel out of answering them with "weeeelll.. not really because..".
But you don't ask "the last question", which is the one that sums up the point you were trying to make, because then the witness sees how you've shown them to be full of shit, and they'll spend 10 minutes weaseling out of everything you just established. It's SO TEMPTING to ask it directly, because you really want to hit the point home, but it's often too risky because it can backfire by breaking up your flow -- you often have dozens of lines of questioning, and there's a "last question" to each of them.
What you're supposed to do is explain "the last question" in your final submissions, using the transcript from your cross as the proof the statement is true.
He signed a piece of paper, stipulating someone committed a crime without evidence. In order for officers to arrest you, they need probable cause. Without evidence, he has no probable cause. He lied under penalty of perjury, saying he had evidence of a crime committed by Adam.
But MacLeod implies he asked a question during cross that they teach law students not to ask. Presumably because it's kind of a slam-dunk (and he got a slam-dunk response). But I'm curious as to why it's a bad idea to ask.
Usually there are a series of elements that together create a fact. If you ask someone if they perjured themselves, they essentially have three choices to avoid a penalty:
1. Lie
2. Rationalize (it wasn't perjury becuase x, y, z) (and which you are not prepared to counter-argue).
3. Take the fifth and refuse to answer.
Your better off getting there questioning various elements, and then presenting an argument that the signed document was invalid.
1. Did you witness the speeding?
2. Were you able to identify the driver of the car?
3. Please read this document (Plaintiff's exhibit A that states "I witnessed the speeding" and "I identified the driver of the car as x"
4. Is that your signature at the bottom of the document?
5. Are there any other signatures on this document?
Then you argue that since important elements in the document were in fact proven to be false, the document cannot be used as evidence that the defendant violated the law. Since there is no other evidence, the violation conviction must be vacated.
I am curious what he would have done if the officer had answered "no." He never addresses that. Possibly the principle he refers is "never ask a question that will turn into a dead end (nowhere to go in the examination) if the witness answers in the unfavorable way" (i.e. "no").
The question you're not supposed to ask is whatever the last question in your line of questioning would generally be. Or, I suppose: 'is the claim I've been asking you to provide evidence for true?'.
In order to get a 'yes', you need to convince the witness of your claim. And most cross-examinations either involve discrediting the witness, or leading them to provide evidence that helps the side they're not on. So they're rather biased.
If you ask it, and get a yes from the witness -- you almost certainly got enough from the witness for any judge/jury in the world to agree with you. So it doesn't really help.
When you don't get a yes, you're opening the door to the witness providing a different explanation for the things you've established. Which you don't want.
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In this case, Macleod had obtained everything he needed from the police officer to demonstrate that he had committed perjury. He could join the dots later, instead of asking the police officer to do so.
Well there was evidence -- a vehicle that was registered to him was photographed as it was involved in a civil infraction. It wasn't conclusive evidence, much less proof. But it was evidence.
And although I'm not a lawyer, my understanding is that probable cause is a relatively low standard to meet, much lower than preponderance of the evidence and certainly much lower than beyond reasonable doubt.
Ask yourself this -- if a witness saw a car (and noted its license plate) parked in a house's driveway during the time when a burglary was likely to have taken place, and the car was unknown to those who lived at that address, would a judge sign a search warrant on that vehicle and the registrant's address based on probable cause?
As a layman, can anyone explain why they are taught not to ask this?