The cross–examiner strives for a simple signpost to guide the way. In the welter and chaos of words and counter–words, of branches and leaves, how to carve out a clear path forward? In a multilayered case, complexity can seem to render reality inexplicable, impenetrable. Thus, the search for that one short phrase which encapsulates the entire enterprise. Perhaps one way is simply to ask––“Who’s there?”
Testing the actual presence of. A good place to start a cross–examination is simply to ask: is what’s before us what it seems to be? You’re testing the actual presence of that which you cannot be sure. Questions should be designed to confirm or refute reality. “Who’s there?”––a question that inquires of another to substantiate that which is asserted. You’re not taking their word for it; you’re requiring confirmation.
Seeking out the true identity of. Cross–examiners elicit identifying markers so that the real can be separated from the illusory. How do we know this person, inference, idea, or observation is what it purports to be? We need to know the true identity of that which is presented, not just its apparent but perhaps illusory presence. “Who’s there?”––a question that seeks to reach beyond preset boundaries.
Establishing the nature of. All cross–examiners need to know––what’s the true nature of this? Is it harmful or benign? Is it reliable or unreliable? What’s the reality? Merely because there’s a verbal assertion does not necessarily mean the truth has been established. A partial truth can be as misleading as an outright misrepresentation. Thus, the need for both corroboration––and confrontation. Corroboration. What exists which most reliably can verify and confirm? Confrontation. What exists which most reliably can refute and disprove?
Prove: Q: Dr., you diagnosed this patient with a comminuted fracture of the right acetabulum, true?
Q: [Who’s there?] In your view, what confirms this diagnosis?
A: Well, I interpreted the films––and I performed the surgery to repair the fracture.
Disprove: Q: Dr., what is your profession?
A: I’m a professor of medicine at State University.
Q: [Who’s there?] Do you have tenure?
Q: Would a more accurate description of your position be “clinical instructor of medicine.”
“The most important weapon of all is a disguised one. Sometimes it is so well disguised that it is possible to listen to or read a cross–examination without realizing that the advocate possessed it at all.”(1) Disguise works well for any number of reasons. It may be because someone being questioned is most vulnerable to those areas least expected––or it may be because a knife cuts sharper when placed at a slightly oblique angle. One’s questions should be short, well-structured, as transparent as water; one’s motive and purpose behind each question, however, should remain shrouded, hidden.
“Who’s there?”–-you think you may have heard this term before. You know somewhere you’ve seen this, read this, but you cannot be sure of its place of origin. Think. Where have you heard those two words? They’re familiar. Do you remember? Alright. Here’s the answer––Hamlet. First line, first scene:
BARNARDO Who’s there?
FRANCISCO Nay, answer me. Stand and unfold yourself.
BARNARDO Long live the King!
FRANCISCO You come most carefully upon your hour.
These two short words set the stage for the remainder of the play––unknowingness, darkness, a sense of dread, two guards, searching out the real from the illusory. Shortly thereafter, a ghost in the middle distance appears then dissolves, others react, then events unfold in ways which cannot be controlled or predicted. Point of view can vary. (One way Macbeth can be read as a tale told by a witch; Hamlet, by a ghost.) “Who’s there?”––cross–examination as path clearing, as a means of knowledge acquisition where the questions raised are overt, apparent, and explicit even when they’re not.
1 Richard Du Cann, The Art of the Advocate, Pg. 137 (Penguin 1993)