Cross Examination—Enron

Yesterday we discussed direct examinations in the context of the Enron trial. With the government expected to wrap up its direct examination of its first witness, Mark Koenig, the defense will get its first opportunity to question him during cross examination. Cross examination is the opportunity for the defense to clarify some of the things to which the witness testified. On TV, cross examinations make for high drama. In reality, there are few “Perry Mason” moments.

Nonetheless, cross examinations are an essential tool for the defense, and, like we mentioned yesterday, they are conducted largely through leading, yes-or-no questions. For example, Mr. Koenig yesterday testified about “a series of drafts of a July 2000 news release in which quarterly earnings were raised from 32 cents per share to 33 cents and finally to 34 cents,” which were intended to show that Enron had beat expectations.^[1] Assuming arguendo that the data supported the revised drafts, and the government didn’t cover that during the direct examination, the defense could lead the witness into admitting that the data supported revising the drafts.

The more exciting function of cross examinations is using them to impeach the witness. Impeaching a witness is not the same as impeaching a President; impeaching a witness involves discrediting the veracity of a witness.^[2] Under the Federal Rules of Evidence [hereinafter FRE], either party can impeach a witness.^[3] There are a number of ways this can be done, and one is to attack the witness’s character. “The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation” but only as to the witness’s character for truthfulness.^[4] Specific instances of the witness’s conduct for truthfulness cannot be introduced with extrinsic evidence, unless it is done on cross-examination.^[5]

The witness can also be impeached by evidence of a prior conviction. If the witness has been convicted of a crime punishable by more than a year in prison, evidence of that conviction can be introduced as can evidence of any conviction that involves dishonesty or false statements.^[6] If the conviction happened more than 10 years prior to the testimony, it can only be introduced in rare situations.^[7] Furthermore, if the conviction has been subject to a pardon, annulment, or certificate of rehabilitation, evidence of that conviction cannot be introduced.^[8]

Another way to impeach a witness is to use his prior statements against him. For example, if, hypothetically, Mr. Koenig had testified at trial that Jeffrey Skilling had authorized “cooking the books” but had initially admitted to investigators that he alone had authorized such activity, the defense would want to challenge his trial testimony. Prior inconsistent statements of a witness are admissible.^[9]

Finally, there might be a temptation for an examiner to question a witness’s religious beliefs, in order to shore up that person’s credibility, or to chink away at that person’s credibility. For example, perhaps on direct, the government wants to play up someone’s devout Christianity, and therefore would never tell a lie for risk of smiting. Or on cross-examination, the defense wants to say that the witness is a worshipper of Satan, and as such can never tell the truth. Both are inappropriate and barred by the FRE.^[10]

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[1] Mary Flood, Deception Kept Stock Up, Says Witness, Houston Chronicle, Feb. 2, 2006.
[2] See Black’s Law Dictionary 768 (8th ed. 2005).
[3] FRE 607.
[4] Id. 608(a).
[5] Id. 608(b).
[6] Id. 609(a).
[7] Id. 609(b).
[8] Id. 609(c).
[9] Id. 613(b).
[10] Id. 610.