COVID-19: What About Cross-Examination Of Witnesses?


            Cross-examination is the engine of our civil and criminal justice system. When there is a dispute about facts, witnesses are required. Fact-finders, whether they be juries or judges, then make credibility assessments, deciding whom to believe. Yes, mistakes are made – many a “fact” is no doubt found that would surprise God, or some dispassionate observer, but cross-examination has for centuries been regarded as the best means for determining the truth.

            Will cross-examination survive COVID-19?

            As I write this, Courts here in Connecticut are all but closed. The third branch of government, the necessary check and balance to executive and legislative over-reach, is on life-support. State and federal courts are experimenting with videoconferencing of one sort or another in arraignments and bond arguments for new arrestees.

            Sooner or later, the courts will have to reopen. Already, New York appears to be poised to move to video hearings in commercial cases.

            I doubt we will see any more jury trials during 2020. Every forecast I’ve seen about the course of this pandemic suggests that while we may flatten the curve for now, infections will spike again in the fall. We’ve yet to discover a reliable vaccine. When we do, it will need to be produced, distributed and administered – to millions of people. It’s going to take a year, perhaps two, before all this can be accomplished.

            Find me the juror who will agree to sit before the virus is licked, and I will show you a man or woman presumed lacking in enough sense to sit as a juror.

            So what becomes of trial dockets in the civil and criminal courts? What becomes of the right to trial by jury?

            The Sixth Amendment right to a trial by jury in criminal cases and the Seventh Amendment right to trial by jury in broad classes of civil cases remain in place. Litigants will always have the right to waive the right to a jury, but, in criminal cases especially, such waivers are real.

            And even if litigants waive the right to a jury, that still leaves the gritty work of trial – cross-examination, the need to confront a witness so that the fact-finder can determine how much weight, if any, to place on the witness’s testimony. So long as there are trials in any form, there will be the need for cross-examination.

            I’m not at all sure I am any more willing enter into the well of the court with strangers and expose myself to the risk of infection by confronting a stranger than a juror would be to sit with strangers in a jury box.

            Having said that, there’s no doubt in my mind that panels of judges are now sequestered away designing new schemes for conducting trials.

            Courtrooms – at least larger courtrooms – can be designed to keep folks six feet from one another. Although I wonder what will happen if a witness, the judge, or a trial participant coughs during trial. Isn’t there a risk of airborne infection?

            Wear masks, you say?

            A witness, with a mask, on the stand? 

            The art of cross-examination is deeply personal and highly idiosyncratic. Everything depends on the reaction of the witness to the questioner. Direct examination, calling your own witness, is generally friendly, and relies on open-ended questions. Who did you see? What did you do? What happened next?

            Cross-examination, by contrast, is interpersonal warfare. The examiner leads the witness by asking pointed questions, looking for signs that a witness is uncomfortable. Often those signs are subtle and visual, not verbal. With a mask, will the tell-tale smirk every be detected?

            I can no more conceive of an effective cross-examination of a mask-wearing witnesses from a safe distance away than I can imagine spawning an actual child by means of phone sex.

            Can all this be done via video conference?  I doubt it. A trial lawyer earns his or her keep by the ability to read a room. I don’t want my vision restricted by what the camera can detect. What’s more, proximity to a witness matters. It’s far easier to lie from a distance.

            But yet, waiting a year, or possibly two years, to resume the work of fact-finding with live witnesses may be asking too much

            I toss and turn trying to imagine shape of the new world to come.

            Today, I have only questions; the answers, I suspect, will be found one case at a time when the courts reopen.

Also listed under: Coronavirus

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