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10 Trial Excellence 1 (1998)

handle is hein.journals/jurexp10 and id is 1 raw text is: Trial Excelle nce Volume 10, Number 1 January, 1998 Cross-Examination for Color Most trial lawyers agree there are two primary goals in cross-examination: to impeach the witness or elicit favorable testimony. Most of the time the decision to cross-examine or not will depend on whether you wish to pursue either of these goals. On occasion, however, you may be faced with damaging testimony that cannot be impeached, and leaves you nothing of value for your own case. Often, the best decision here is not to undertake any cross-examination at all. But if it sounds damaging to the jury, you may need to ask some questions after all. You may need to show the direct to be of a different color. During the Terry Nichols trial, defense lawyer Mike Tigar used this tech- nique when cross examining an FBI agent. After testimony from another agent about anti-government material found in the car of Timothy McVeigh, agent Will- iam West testified that many of the same documents were found in Nichols's house. These documents had headlines such as, U.S. Government Initiates Open Warfare Against American Citizens, discussed the Waco siege, and compared FBI and ATF agents to Nazi storm troopers. Tigar dealt with those by associating them with people of a very different color than Tim McVeigh: Q. Let's take a look at some of these things I'm going to put up on the machine here. This is Waco Shootout Evokes Memory of Warsaw '43. Do you see that, sir? A. Yes, sir. M.,i Q. Why did you take that? ue ......... ..A. Because we were investigating a bombing of the federal building. Q. Yes, sir. *..... . ............. A. This equates federal agents with .......... .... Nazi SS troops exterminating Jews in

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