THE ADVOCATE 117
VOL. 78 PART 1 JANUARY 2020
vention was a primary goal. Fear, a direct byproduct of his method, dominated
the courtroom. But nonetheless, Professor Younger took a bold and
much-needed leap towards constructing rules and guidelines surrounding
this arcane subject.
The authors have taken a fundamentally different direction. In doing so,
they have created a new approach to cross-examination. Their system of
cross-examination is based on scientific principles of persuasion and behaviour
conditioning, advanced by psychologist B.F. Skinner. This approach
produces cross-examination which assists witness control, prevents distractions
and maximizes learning by the trier of fact, in real time. Of great significance,
the authors reject Professor Younger’s rule that prohibits any
questions the answer to which is unknown by the cross-examiner.
Both Pozner and Dodd are members of the National Association of Criminal
Defense Lawyers, Mr. Pozner being a past president. This association
boasts a membership of over 10,000 lawyers. It is believed that many of the
principles were discussed at that association; the authors consolidated the
ideas, refined them and built upon them, adding their own ideas and techniques.
Their book is a useful guide that can be easily referred to while
preparing for any cross-examination. To the legal profession, it will have
timeless value. The authors are owed a debt of gratitude.
The system of cross-examination proposed by the authors begins with
crafting the competing theories of the case: the theory of your client’s case
and that of the opposing side. The theory of the case guides pre-trial investigation.
Pre-trial investigation then further refines the theory of the case.
Cross-examination questions are then drafted based on relevant topics bearing
on the theories of the case. Each topic becomes a chapter, a single page
of questions, establishing a particular fact that is either a constructive or a
destructive fact. Constructive cross-examination elicits constructive facts:
facts that support the client’s theory of the case. Destructive cross-examination
elicits destructive facts: facts that are destructive of the opponent’s theory
of the case. If not constructive or destructive, cross-examination will
impugn the credibility of the witness. The third edition expands upon the
idea of constructive cross and its value in relation to destructive cross.
Once all the chapters are drafted, they are arranged in pre-determined
sequences. The particular sequence chosen is one that best teaches the
trier of fact the theory of the case. Each chapter is a fact and when presented
chapter by chapter, or fact by fact, they gradually paint a picture. For
destructive cross, each fact becomes a razor cut. With enough facts, the
opponent’s theory of the case, or opposing picture, may die a death from a
thousand razor cuts.