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Sunday, April 19, 2020

Why cross examination works--and doesn't work

USA Today columnist Michael Stern, a former federal prosecutor, explains how he would cross examine President Trump, keeping him from slipping away, generalizing, or lying, as he does in response to reporters' questions.

I share Stern's wish that reporters would do a better job of questioning Trump, beginning with asking shorter, non-multi-part, non-grandstanding questions. And I agree they have been doing a terrible job during these ridiculous briefings cum political rallies.

But the cross-examination analogy fails because of the different power dynamics. Cross examination is effective because a good attorney is in control and the witness is not. The witness must remain on the stand as long as the attorney wants to keep him there. The attorney can keep asking questions until the witness answers, she has the judge as a backstop to ensure the witness cannot sit there and not answer or try to leave the stand, and she has perjury as a legal backstop to keep him from lying. (We could say the same thing about oral argument, the other law analogy, where the judge as questioner similarly controls the event and the attorney subject cannot leave, refuse to answer, or lie).

WH reporters hold none of that power. Trump can answer or not answer whatever questions he wants however he wants, then move to another (more obsequious) reporter or unilaterally end the rally. He suffers no legal consequences for lying or not answering. Nor does he suffer political consequences. The best cross-examiner could not achieve anything with a witness who has neither a desire nor obligation to answer fully and obligation.

The best a good cross-examining reporter could achieve is causing Trump to bl0w up, lose his mind, and walk off the stage. Perhaps not a bad result.

[Update: This is why I do not watch presidential debates. There is similarly no obligation to answer the question or to answer the question honestly. The mechanics of the procedure do not allow the questioner to pin the answerer down]

Posted by Howard Wasserman on April 19, 2020 at 10:31 AM in Howard Wasserman, Law and Politics | Permalink

Comments

"Nor does he suffer political consequences." This is plainly untrue. A large segment of the public despises President Trump because of the way he dissembles, exaggerates and sometime lies. You are unhappy because another large segment of the public isn't bothered by that, and sees the president's actions as a legitimate response to gotcha journalism and a press that portrays everything the president does in a bad light, seemingly without regard to the merits or demerits of the action in question. You are just unhappy that the consequences aren't what you would hope for.

Posted by: Douglas B. Levene | Apr 20, 2020 12:16:51 PM

Regardless of the power dynamic consider the audience. Most folks really just want facts not gotcha or grandstanding questions. The best way is short factual questions. And rather than the President direct them to the others.

Posted by: sam tenenbaum | Apr 19, 2020 7:31:42 PM

He and the questioners are also addressing completely different audiences ("juries"), with virtually no overlap.

Posted by: Martin Lederman | Apr 19, 2020 12:59:53 PM

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