It’s what everyone says they want – a pitbull on their side. I like pitbulls – they are intelligent, loving animals. However, that’s not the image that most people have in mind when thinking of lawyers or what they want – the picture that comes to mind is a vicious, dangerous killer that will not let go once it sets its teeth in. In the courtroom, this plays out as an attacking, caustic style, one I think is usually counterproductive.
The New York Times has a couple of pieces on the prosecutor in the Oscar Pistorious trial (I almost wrote Jaco Pastorius – he’s a different kind of killer), who has earned the nickname “Pit Bull.” His style has been described as “pugnacious” with “a reputation for abrasive, in-your-face cross-examination,” by turns “sarcastic, theatrical, skeptical and accusatory.” He has at times called the defendant a liar while testifying. Does this work?
While Mr. Pistorious may end up convicted, I don’t think it will be because of the prosecutor’s “pitbull” cross-examination style. At one point in the trial, the judge reprimanded the prosecutor for “snickering” at the defendant’s answer, stating “You possibly think this is entertainment. It is not.” The judge has also warned him to stop calling Mr. Pistorious a liar while he is testifying (this would be grounds for a mistrial in the US). And the South African Human Rights Commission has received a complaint that the prosecutor’s “persistent depiction of Mr. Pistorius as a liar infringed on the runner’s right to be presumed innocent and to have a fair trial.” (Only one?)
Look at the short video clip excerpt of the second-day of cross-examination of Mr. Pistorious – do you think it’s effective? I thought Mr. Pistorious ended up looking much more sympathetic than he would have without the question.
Terry MacCarthy in his book on cross-examination says that while defendants and their families may appreciate the attacking cross, the jury “is muttering to themselves: ‘That guy [meaning you] is an ass.” A prosecutor may get away with it against a defendant, who is seen as deserving this treatment by dint of getting prosecuted. But it doesn’t seem to work for criminal defense lawyers except against the snitch.
There is a place for determined, aggressive work in criminal defense – in preparation. Just remember, vicious creatures get put down.
UPDATE: My friend Jamison Koehler has a great post along the same lines on “The Benefits of Restraint During Cross-Examination.”
2nd UPDATE: Master criminal defense lawyer Roy Black has an entirely different view of the Pistorius cross-examination. Black says:
Nel is a sarcastic SOB which I enjoy so long as he is not assaulting one of my clients. I have never seen a prosecutor as skilled in the art, but remember this was a judge trial. No rational prosecutor could do an assault like this in front of a jury. They would see it as too over bearing and smack of inspector Javert, but you can’t beat this for pure sadistic enjoyment.
. . . And his method is easy to grasp: He challenges every detail of the story, every claim, every dodge, every obfuscation.
While it’s easy to see why my experiences in bullying a witness can differ from a prosecutor’s (i.e., the perception that the defendant deserves it), when Roy Black speaks or writes about cross-examination, it’s a good idea to pay attention. Black’s post is well worth studying to determine whether any of the techniques used by the prosecutor can be applied by a defense lawyer.