Marcia Clark is a novelist and legal analyst. She was formerly a prosecutor in the Los Angeles District Attorney’s Office in the special trials unit where she handled a number of high-profile cases including the O.J Simpson murder trial in 1994.
Do you have a philosophy around the interview as a discipline, as it applies to the work of a trial lawyer?
Talking to witnesses is a very unique style of communication. Cross-examination is not really a conversation; you’re guiding the person you’re examining. You’re holding the reigns if you’re doing it well. And you’re steering that person into the areas you want them to go and eliciting the information you want to elicit. Forcing them to address inconsistencies, contradictions. Forcing them to give you information that somehow conflicts with the stories they’ve put out in front of the jury. It’s a confrontational kind of conversation.
And it can take on various different tones.
Yeah. How you cross-examine depends very much on the nature of the witness you’re cross examining. If you have a big brash tough guy you can go after him. The jury isn’t going to turn on you for getting too heavy-handed. If you have a sweet little girl on the witness stand, you can be much more laid back, much more tactful in tone, certainly less-threatening, less intimidating. You want to be very careful to not be appearing to be a bully.
That also points to the difference between a jury trial and non-jury trial. How are your questions differently charged in those two contexts?
It’s a big difference. No prosecutor is going to be terribly worried about a judge turning on them because he got too heavy handed with a witness, because if a judge thinks you’re getting too heavy handed, he’ll stop you and say, “knock it off.” And he’s not going to hold it against. He’s going to keep looking for the information. A judge is much less likely to be influenced by his personal reaction to the prosecutor or defence attorney’s style of cross-examining. The judge is looking strictly for information. With a jury, style points really count. If you alienate the jury by being too bombastic or heavy-handed or conversely by letting a witness walk all over you, they’re going to hold it against you in someway. But it’s much more dangerous for the jury to think you’re a bully than for the jury to feel that you’ve been too soft. If the jury feels you’re being too soft, they may still look to the information you’re getting or not getting. They won’t necessarily hold it against you personally in the context of the case. They may not think much of you as a lawyer, but they won’t hold it against in the context of verdict. The biggest risk is getting to aggressive with a witness in cross-examination in front of a jury. They may question the veracity of the information and say, “Gee, he beat the crap out of that guy. I don’t know what to believe anymore. If he’d been punching me in the face like that for an hour, I’d have said anything to get away from him too.”
Is there also a difference of the level of simplicity and complexity in the conversation you’re having with a witness, dependent on whether its a judge or a jury that you’re appealing to?
For sure. With a judge you don’t have to connect as many dots. If you go from point A to point C, he’s going to know that B is implicit. Because judges are hearing cases all the time; they’re experienced. With a jury, they’re laypeople. You have to spell it all out. For example, back in the day when DNA cases were first happening, it was imperative to explain to the jury that when the expert said, “we would not find another match for this particular DNA if we went through five-six hundred billion people. Nowadays, people know that’s more than the number of people on the planet, that means this is a match and that this is the person and that it could only be this person sitting before you in the courtroom. Back then, they didn’t.
DNA obviously played a role in your most famous case, do you think you would have gone differently about how that information was conveyed in the interviews with those who did the DNA work?
No. There was actually some dissension among the ranks. There were some on our team that wanted us to just present the results, have the expert get up and say, “yes we did the testing and it matches him.” I said if we do that – if we do not explain to the jury how this works, that it is science, that there are methods and procedures that we use, and that it is a very careful process that we go through – then the defence is going to get up and say, “and it’s big mess, and it’s all contaminated, and nothing can be relied upon, and they didn’t even explain how it works, so how can it be trusted? It’s all a magic black box.” So I said, “yeah it’s going to be boring, it’s going to be a big drag, but we can’t abandon the dialogue because it going to be boring.” It’s better to bore them with too much detail than to leave them the opportunity to say, “you never explained it to me, so I don’t get it so I reject it” which by the way is very common for juries in general. If they don’t understand something, they’re much more likely reject. Whether you’re prosecution or defence, you better explain what you’re presenting especially in terms of science and you better do it as thoroughly as you possibly can.
In a cross-examination, take me through what you’re feeling, what you’re listening for in a direct examination, what your thinking on the spot, how questions might be inspired, or whether you’re sticking to the script completely, and how you know when you’re going down the right road as you generate follow-up questions.
Cross-examination is to me the most challenging thing about a jury trial. It also can be the most fun. But it is certainly the most improvised. That does not mean you don’t prepare as thoroughly. It’s always been my motto to walk into the courtroom knowing more than anybody else does about your case. That doesn’t mean you win but it does mean you’re prepared for what’s happening. In cross-examination, you have to know everything about the witness, everything about the subject matter, everything about all the ways in which you intend to impeach the person, as well as ways in which this person can help to corroborate information in your case. Witnesses in cross-examination can serve a two-fold purpose. You have to be open to both of those purposes as they speak. So let’s say the witness is a defence witness, who’s an aliby witness and he is trying to say that he saw the defendant at a party on the night of murder. On cross examination, you could be looking for a variety of different things from him. You look for any opportunity to get him to admit that the defendant had a beef with the victim, or that the defendant was a hothead and was known to get in fights, or that the defendant had been seen with a gun on previous occasions. These are ways in which you can help support your case. On the other hand, you’re also for looking for ways in which you can impeach his memory or his ability to have seen the defendant with questions like “how long were you at the party? When did you get there? How drunk were you? When did you leave? How far away were you from him when you claim to have seen him?” You ask, “are you sure it was him?’ but you don’t ask it that way, you say, “Tell me exactly what you saw that of this defendant? Do you remember what his shirt looked like?” You test his memory that way. Every answer can lead you in different direction. If for example he says, oh I remember, he was wearing a red plaid shirt and blue jeans and black shoes.” That’s pretty detailed for a party with fifty people. What was the person standing next him wearing? “Oh I don’t remember?” “Oh so you don’t remember what the person he was talking to was wearing?” That’s a way of saying, “bullshit.” You have to play off of his answer and go for either what supports your side of the case or conflicts with his story?
That’s a fairly sophisticated kind improvisation. Do you think the art of interrogation can be taught?
Some police officers for instance are amazing at interrogation. Just the right tone, just the questions, just the right responses, just the timing. They respond with something like, “I don’t believe you” at just the right moment. It’s a personal art. It’s the interrogators to suss out the nature of his interviewee and get a feeling of what will work to make the person talk and what will work to open the person up and what won’t. This comes down to an interpersonal skill, to get a sense of your target and modify your approach based on who’s sitting in front of you instead of always going at it the same way. I think that’s just a matter of some got it and some don’t. There’s things you can learn about what not to do. There’s broad strokes you can learn, but there are nuances too. When it comes down to it, people are very different. A girl who appears to be very soft can be made of steal on the inside. A good interrogator can figure out a good approach to the particular person they’re talking to, the same goes for cross-examination by the way. I guess I don’t think it can be completely trained. Some are just really good at finding the key to get inside the person across from them.
Has your expertise in interviewing proven to be transferable when you’re doing research for your fiction writing?
It’s useful throughout your life. I use it with my kids all the time! They hate it!
“Hey mom, I love that green truck.”
“Really? Because yesterday you said you loved the red one.”
I’m kidding. It really does help with all kinds of human interactions. Even in your daily life. And it certainly helps with novel-writing because I can play out realistically how an interview goes with the cops and the witnesses, and the courtroom scenes. The more practical experience you have, the more you can bring to the party in a novel.
What are the indications that someone is dancing around the truth?
It’s a feeling. Everyone has a different way of being evasive. Evasiveness can mean that somebody is being less that truthful. Not necessarily lying, but omitting. You have to watch a person’s behavior. It’s a potpourri of body language, what they’re saying, eye contact, that you’re looking at and evaluating second by second.
In your writing, have you been able to capture the emotional exciting that I imagine you’ve felt when you know you’re close, that your making the right connections, and your on track to eliciting the information you want?
Yeah. Especially in my most recent novel, Killer Ambition – there’s a lot of courtroom stuff. We go through the unexpected lows and highs of a trial. It was really fun to do the question and answer in the courtroom, and have that tightrope walk happening and to kind of relive the unpredictability. That roller coaster was really run.
You love those elements of the courtroom, the surprise and intuition.
Yeah. There’s risk every time you walk into the courtroom. I actually get that same vicarious thrill by writing about it. Even in the course of writing about it, I surprise myself with I’m having the witness say. I put myself in the mindset of the prosecutor and then in the mindset of the witness, answering from their point of view. And sometimes I’m surprised with what’s coming out, and I’m writing it!