Arguing With a Witness? That's Not How Cross-Examination Works

[00:00:00] Tony DeWitt: I wanted to talk about the cross-examination of Ms. Jackson. It was an interesting thing on two levels. First, the lawyer was trying to repair the damage to her credibility from the text message debacle. And second, she was violating some fundamental rules of cross-examination. I'll tell you more in just a moment. Hi, Tony DeWitt here. Formerly, I was a Missouri attorney in active practice. Then I retired. Then I unretired and started a YouTube channel. And I bring you all kinds of stuff about trials and the law. So no legal advice is given, but stay tuned. This is what we're talking about today. We're back in the Tennessee murder trial of Blaise Taylor, who is accused of poisoning his pregnant girlfriend, Jade Benning, with a fatal dose of cocaine in February of 2023. Prosecutors allege that Taylor secretly placed cocaine in Benning's drink because he did not want the pregnancy. While the defense argues the state cannot prove who supplied the cocaine, and points to questions surrounding the forensic evidence, the investigation, and the medical examiner's conclusions. When I went to law school, I was a product of the 1960s TV show Perry Mason. That guy was awesome. He won every case, and he usually won on cross-examination of a witness. It was awesome. It went something like this. But you said you weren't in the study. Well, I wasn't. Then how did your fingerprints get there? Uh, uh, I don't know. You hated the count. You bet I did. You wanted him dead. I did. And you beat him with that mallet. Yes, yes, I did it. I confess. I mean, it was overdrawn and overdramatic, but it worked. And the guy had a long run on television with that show. So naturally, when I went to law school, that's how I figured cross-examination was done. But it isn't. It varies by situation. You cross a potential suspect differently than a sympathetic witness. You cross a turncoat ally very differently from somebody who is a sympathetic witness. And if someone lost a friend and you have to get some ugly truth out of them, you do it with a velvet hammer, not a five-pound steel craftsman from Home Depot. Let's talk specifically about Ms. Jackson. One of the most difficult witnesses to cross-examine is not an expert witness. It's not a police officer. It's not a scientist. It's a friend of the victim. When jurors see a friend of the deceased take the stand, they already understand something important. That witness has suffered a loss. The witness is not on trial. The witness did not cause the death. The witness is there because someone they cared about is gone. That means the defense lawyer faces a problem. If the lawyer appears to attack the witness personally, jurors may stop listening to the substance of the questions and start focusing on the lawyer's behavior and the demeanor. And the lawyer begins to look like a bully. A good cross-examination of a friend of the decedent is usually short, respectful, and focused. The lawyer should identify the few questions that matter and ask concise, leading questions. For example, you're not a doctor. No. You weren't present when she died. No. You never saw what she consumed that evening. No. Thank you. Sit down. Notice what happened there. The lawyer obtained important concessions without attacking the witness. What a lawyer should avoid is arguing with a witness. A witness can only testify about what they know. If a witness says, I don't know, and genuinely does not know. There's nothing to argue about. The lawyer is not going to win that debate because the witness has already admitted the limitation of their knowledge. Cross-examination is not a contest between the lawyer and the witness, although many lawyers make it into one. It should be a conversation between the lawyer and the jury. Every question should have a purpose. Every answer should advance a point. The best cross-examiners understand that jurors are constantly asking themselves a simple question: Is this lawyer being fair? The moment the lawyer appears unfair, sarcastic, or argumentative, jurors often stop evaluating the witness and start evaluating the lawyer. And that's a dangerous place for any advocate to be. A friend of the witness should rarely leave the witness stand looking defeated. The defense lawyer's goal is not to defeat that witness. The goal is to establish the limits of the witness's knowledge and then move on. Because in a courtroom, unlike on television, unlike on Perry Mason, winning the argument with the witness is often the fastest way to lose the argument in front of the jury. Now let's take a look at some of the video from day two, where the cross-examination of Ms. Jackson begins. And it starts out in exactly the right manner. Watch. [00:05:52] Latisha Kenyonis-Hollins: Ms. Jackson, my name is Latisha Kenyonis-Hollins, and I'll be asking you a few questions. Well, a lot of questions. Ms. Jackson, but any time you don't understand something, let me know, and I'll do my list of reports, okay? Ms. Jackson, you said you met Jade when you were six years old. Ms. Jackson, you guys at some point went to the same middle school and high school, right? Ms. Jackson, you were very close. Ms. Jackson, correct. Ms. Jackson, and you guys also went off to college. Was it the same college that you went to? Ms. Jackson, or different colleges, but at the same time? [00:06:35] Speaker 3: Ms. Jackson, we went to the same college at one point and a different college at another. [00:06:39] Latisha Kenyonis-Hollins: Ms. Jackson, because she left and went to culinary school. Ms. Jackson, and the culinary school was with? [00:06:46] Speaker 3: Ms. Jackson, Bentonville. [00:06:47] Latisha Kenyonis-Hollins: Ms. Jackson, now are you both from Little Rock, Arkansas? [00:06:54] Speaker 3: Ms. Jackson, we are. [00:07:01] Latisha Kenyonis-Hollins: Ms. Jackson, do you know an Arianne Curtis, who now may be Arianne Jordan? [00:07:06] Speaker 3: Ms. Jackson, I do. [00:07:07] Latisha Kenyonis-Hollins: Ms. Jackson, is she also from Little Rock, Arkansas? [00:07:09] Speaker 3: Ms. Jackson, I believe so. [00:07:11] Latisha Kenyonis-Hollins: Ms. Jackson, and do you know an Apple Dinn? [00:07:14] Speaker 3: Ms. Jackson, I know of her. [00:07:16] Latisha Kenyonis-Hollins: Ms. Jackson, have you ever met her before? Ms. Jackson, your honor, it's relevant. Ms. Jackson, I just have a little believe it. [00:07:25] Speaker 4: Okay, have you ever met her? [00:07:28] Latisha Kenyonis-Hollins: Ms. Jackson, yes. Ms. Jackson, now at some point, Jay moved to Nashville, correct? Ms. Jackson, correct. Ms. Jackson, and do you know about when she moved to Nashville? [00:07:44] Speaker 3: Ms. Jackson, I don't know exactly when, probably like 2020, early 2022, maybe. [00:07:53] Latisha Kenyonis-Hollins: Ms. Jackson, early 2022? Ms. Jackson, okay. Ms. Jackson, and when she moved to Nashville in early 2022, you were where? [00:08:03] Speaker 3: Ms. Jackson, in Little Rock. [00:08:04] Latisha Kenyonis-Hollins: Ms. Jackson, were you guys speaking during that time? Ms. Jackson, yes. Ms. Jackson, how often? [00:08:13] Speaker 3: Ms. Jackson, maybe like every couple days or maybe once a week. [00:08:19] Latisha Kenyonis-Hollins: Ms. Jackson, but significant, you were talking. Ms. Jackson, and then at some point, you moved to Nashville. Ms. Jackson, correct. Ms. Jackson, when did you move to Nashville? [00:08:30] Speaker 3: Ms. Jackson, in August of 2022. [00:08:31] Latisha Kenyonis-Hollins: Ms. Jackson, and so when you moved to Nashville, who did you live with when you moved here? [00:08:46] Speaker 3: Ms. Jackson, myself. [00:08:46] Latisha Kenyonis-Hollins: Ms. Jackson, and you came here to go to McHerry? [00:08:49] Speaker 3: Ms. Jackson, my hair, yes. Ms. Jackson, my hair, I'm sorry. [00:08:54] Latisha Kenyonis-Hollins: And you didn't move in with Ms. Vennie? [00:08:57] Tony DeWitt: Ms. Jackson, no. Notice the questions and the tone. It's the tone, I think, that's important. These are just simple interrogatories. Simple foundational questions, sort of laying out what this witness knows, where they were from, what they did, that sort of thing. It's a good way to get started if you're going to do a long cross-examination. And our lawyer here has promised a long cross-examination, which really does not seem to make a great deal of sense to me. But again, she has to do it her way. But she started out right. A little bit later, she starts going off track, just a bit. Let's watch. [00:09:47] Latisha Kenyonis-Hollins: If you could take a moment and read those parts to yourself and let me know when you're done. I'm going to go down four texts. I'm ready. Okay. Did she suggest that you guys should do it together? Yes. Thank you. [00:10:26] Tony DeWitt: That smile on her face tends to indicate that's a happy memory for her. And, you know, it's interesting. There have been moments during her direct and now during her cross when happy memories have flooded into her and she smiled. And you can tell that it's a genuine smile coming deep from within her. And it's kind of good to see she's cherishing her friend's memory. [00:10:56] Latisha Kenyonis-Hollins: Now, you would oftentimes, would you not, reach out to Miss Finney and ask her to help you secure, secure drugs, wouldn't you? [00:11:07] Speaker 3: Marijuana. [00:11:08] Latisha Kenyonis-Hollins: Adderall as well, correct? [00:11:09] Speaker 3: Mm-hmm. Okay. [00:11:11] Latisha Kenyonis-Hollins: So more than marijuana. [00:11:13] Speaker 3: Okay. Yes. [00:11:14] Latisha Kenyonis-Hollins: And you did that more than what she said. Mr. Honored to the relevance that we approached. Okay. Ms. Jackson, do you remember a time when, around October the 3rd of 2022, when Ms. Benning was traveling somewhere in California? Do you remember that? Yes. And do you remember you guys were having a text message conversation? Yes. And in that text message, Ms. Benning starts off the conversation saying, edible kicked my ass. Do you remember her saying that to you? [00:11:57] Speaker 3: Can I please see it? [00:11:58] Latisha Kenyonis-Hollins: You may. Okay. What's your question? Do you see there where on October the 3rd of 2022, Ms. Benning says to you, "Edibles kicked my ass." Do you see that? Yes. Do you see that later, the next text message she sends says, "Smoking, edibles, and tequila. Laugh my ass off." Do you see that? Yes. And do you see where your next text to her is, "We are some other shit." Yes. What is some other shit that she could be smoking, Ms. Jackson? [00:12:42] Speaker 3: Mushrooms. [00:12:44] Latisha Kenyonis-Hollins: Because you can smoke mushrooms? [00:12:45] Speaker 3: I didn't say smoke. I said, "Or some other shit." [00:12:50] Latisha Kenyonis-Hollins: Well, you said, "Weed or some other shit," right? Yes. What's the other shit? [00:12:57] Speaker 3: Mushrooms. [00:12:59] Latisha Kenyonis-Hollins: So, when you were referring to weed, because here above it, it says smoking, but it doesn't say what she's smoking, right? [00:13:08] Speaker 3: Mm-hmm. [00:13:10] Latisha Kenyonis-Hollins: It says smoking, and then you respond, "Weed or some other shit." [00:13:15] Speaker 3: Mm-hmm. [00:13:16] Latisha Kenyonis-Hollins: And your response is, "She was going to smoke mushrooms." [00:13:19] Speaker 3: I didn't say smoke mushrooms, but I was asking her of exact what she's talking about. [00:13:23] Tony DeWitt: Either our learned counsel here is unfamiliar with psychedelic drugs, and specifically psychedelic mushrooms, or she just wants to try to put words into this lady's mouth. And either way, it's not going that way. Clearly, this young lady understands exactly what the context of that conversation was, and the defense attorney doesn't. But she's not giving up, and she continues to go on like that. Now, she's going to get a little bit more terse, and a bit more argumentative. And pay attention to this exchange. Okay. [00:14:10] Latisha Kenyonis-Hollins: And Ms. Benning, in your closeness with her, that would share with you when the last time that she had her period. [00:14:22] Speaker 3: I don't recall. [00:14:24] Latisha Kenyonis-Hollins: Yeah. Would you have learned that The last time she had her period was September the 12th. [00:14:40] Speaker 3: Is that a question? Yes. [00:14:43] Speaker 4: Yeah, I mean, you're putting words into her mouth. I thought you asked, "Did you know?" And she said, "No." She said she didn't recall. [00:14:51] Latisha Kenyonis-Hollins: She said she didn't recall. As close as you were, did you know that she didn't have her period in October? [00:15:01] Speaker 3: We don't just discuss our periods, like, all the time. So, no. [00:15:09] Latisha Kenyonis-Hollins: So, when you were on direct examination, Ms. Jackson, you talked about that this was your sister, and you discussed everything. Isn't that what you said? [00:15:17] Speaker 3: We do. [00:15:17] Latisha Kenyonis-Hollins: But you don't discuss your periods? I did not. Now, but didn't you, isn't it true that you and Ms. Benning was trying to calculate who was the father of this child? Mm-hmm. You wouldn't discuss the last time she had her period if you're trying to calculate when was the last time she, or when, who was the father of the child? [00:15:43] Speaker 3: I don't recall talking about a period. [00:15:46] Latisha Kenyonis-Hollins: Well, how would you figure out who was the father? [00:15:48] Speaker 4: What's your next question? [00:15:57] Latisha Kenyonis-Hollins: What's your next question? How can you discuss and try to determine who's the father of the child? If you don't discuss when was the last time she had her period? [00:16:09] Speaker 3: Based on the, um, how many, how far along she was in her pregnancy. [00:16:16] Latisha Kenyonis-Hollins: Well, how did you know how far along she was if she doesn't go to the doctor? [00:16:20] Speaker 3: She did. [00:16:21] Latisha Kenyonis-Hollins: But this, you were talking about that before she went to the doctor. [00:16:26] Speaker 3: We were at the doctor talking about that. [00:16:29] Latisha Kenyonis-Hollins: So, when you were talking about it, you would have to figure out the last time she had her cycle, or if she was having sex? [00:16:37] Speaker 4: You can't tell her what she did or didn't know. Let me just ask her a question. [00:16:43] Tony DeWitt: And the judge is absolutely right about that. You can't tell a witness what they know and what they don't know, unless you do it from a deposition where they've already testified. Ms. Jones, you know, as a senior nursing advisor, that you don't tell students to A, B, and C. That, if you have it on the, you know, if you have a good faith basis for asking it, you can get away with it because you can tell them what they know. And oftentimes, particularly with medical witnesses, that's exactly what you do. You know, doctor, you are aware that the sixth cervical vertebrae has the following function. You know, you can do that. But you can't tell a lay witness like this one what they know and what they don't know. So she's getting a little bit off. But you probably noticed earlier on she did sort of get into this whole issue of drugs. And as a result, what they are trying to show is that she had a history of recreational drug use. And I don't think that's even disputed. She did have a history of recreational drug abuse or drug use. I wouldn't say abuse, but certainly drug use. The issue is that didn't cause her demise. What caused her demise was cocaine overdose, cocaine poisoning. And so there's a lot of disconnect in between that. But at least she was able to get in that and hopefully restore a little bit of her credibility in front of the jury, which is what she was aiming for. [00:18:13] Latisha Kenyonis-Hollins: And in that same conversation, you were asking, and she was talking about the mushrooms, and you were asking her to ask it. [00:18:24] Speaker 4: What is your question? [00:18:25] Latisha Kenyonis-Hollins: This was a discussion they were having together. [00:18:27] Speaker 4: Well, it still might be hearsay, but what is your question? [00:18:31] Latisha Kenyonis-Hollins: You guys were discussing drugs then too, were you not? Okay. You're actually in your honor to be hearsay. You can't be heard. Yes. There was a conversation that she was a part of. This is what she was saying with Miss Benning. And it goes to Miss Benning's state of mind. What hearsay exception is? It goes to Miss Benning's state of mind as it relates to drugs. This is a drug overdose. Mr. Taylor has to be able to put on a defensive theory. [00:19:06] Speaker 4: Did you ever discuss with Miss Benning after she knew she was pregnant about drugs? I'm not sure. I don't know. [00:19:13] Latisha Kenyonis-Hollins: Would it assist you if I was to allow you to look at text messages? [00:19:22] Tony DeWitt: Now, the judge here is going to call a timeout. They're going to send the jury out, and they're going to have an argument. I think it's important to be really, really careful if you're going to attack the victim. Because what she's doing here is she's talking about months before she was killed and probably days before she found out she was pregnant. And I know from having seen a lot of people who were pregnant, a lot of people who delivered babies in the hospital, taking care of a lot of those babies on ventilators and stuff, that being pregnant for women changes the way they think about a lot of different things. And things they may have considered previously, things they may have done previously, are off the table once that happens. And I think many of the young ladies on our channel here would probably agree with me on that. There are a few people, I'm sure, who decide, oh boy, I don't want any piece of that. I'm going to go take care of that with an abortion. And that's obviously their right under the Dobbs decision, among other things. My issue is you don't want to be seen attacking the victim unless you're going to get a big payoff for it. For the next 20 minutes in the courtroom, they talked about bottles of wine, smoking marijuana, somebody eating mushrooms, all this drug consumption prior to her finding out she was pregnant. That's important, I think, in context to put into the fact that she was kind of a, you know, playing around kind of girl during that period of time. I get that. My problem with it is that she didn't die from mushrooms, marijuana, or a bottle of wine, or anything she smoked. She died from cocaine mixed into a drink. That's what the medical examiner in the toxicology says. So all of this is about creating a fog and essentially a false impression. It's essentially an attempt to mislead the jury into thinking that she overdosed on her own. Except we have that last phone call where we know that she said somebody put something in her drink. There is a disconnect here with the defense. They just want to throw mud up on the wall. And Ms. Jackson, and certainly the state, doesn't want to see that happen. But the rules of evidence don't play favorites. And the judge is going to let the defense attorney ask about all of this stuff. He's even going to let her ask about conversations they may have had about possibly getting an abortion. And then he's going to let the state redirect on those same things and clear all that up. So for the most part, she's really spinning her wheels here and she's wasting the jury's time. So I'm not even going to go through that long period where they're fussing about this in front of the judge. Every day, the judge seems to get more frustrated with the defense counsel. He doesn't seem to get frustrated with her co-counsel. He seems to get frustrated with her. He doesn't seem to get frustrated with the girl who is the prosecutor. But it's really, I think, has more to do with her demeanor and her doggedness to pursue this. It's her every right to pursue it, right? It's her every right to make a bad decision strategically and attack the victim. She can do that. Sometimes that's good advocacy. Maybe this jury will think that Ms. Benning was just a trollop who got what she deserved. I don't know. But the issue for me is you have to be careful when you represent a client that your attitude doesn't carry over on your client. Because if that's what he thinks and she's just saying what he thinks, they're liable to think much less of him than they do of Jay. That's my point. So that's what I have for you today. Sorry, that rant went a little longer. But I just spent 20 minutes listening to the stupidest argument I've had in a long time. So you'll have to forgive me for that. Thanks for being here. Catch me here next time. Thanks for watching my video. I really appreciate it. And today as you go about your business, would you try to do just one kind thing for somebody? It doesn't have to be a big thing. You can open a door for somebody who has their arms full. You could buy somebody a Coke. You could let the manager know when somebody did a really good job for you at the grocery store or at Walmart or someplace else. There are all kinds of things we can do to make people's lives better. And a lot of times people will always remember to go to the manager and complain. They very seldom remember to go to the manager and say, "Hey, you know that guy over there in produce is top notch." And I think it's really important to do that because I want to make the world a better place. I know you're here probably because you want to make the world a better place. So let's do that. Now let's be respectful of one another. And thank God we live in the greatest country in the free world. I do think that the good folks at YouTube have a few things they want to show you up here that you might be interested in. And if you are, I'd appreciate you clicking. Thanks. Have a great day.