TAXLITIGATOR – Tax Controversy (Civil & Criminal) Report

It is time for a little change of pace from substantive tax discussions.

In tax controversy cases you occasionally must cross examine someone. Whether in litigation, or just sitting in an office interviewing witnesses or clients, it is comforting knowing how to expose a lying witness.

If you have an objective piece of evidence showing the witness is lying, say a contradictory statement in writing or otherwise, it takes no great skill to demonstrate the witness’s lie. (Note it is still possible to botch this cross examination with an inept questioning technique, but that is a topic for another day.)  For an example of a Master using this basic technique see Wellman, The Art of Cross Examination, pp 57-59 (paperback).

What you will learn in this essay is how to cross examine the lying witness when you have only your belief that the witness is lying.  Here is the outline I use when I teach this technique.

Ladies and gentlemen, while this may come as a shock to some of you, there exists something out there in the world we call “objective reality.” (Use finger quotes while saying “objective reality”).  This “objective reality” comprises things we call “facts” (finger quotes).  None of these “facts” exist in isolation; they are all connected to other “facts” making up “objective reality.”

The problem with a lie is that, although it pretends to be a “fact,” it is not. The lie connects to nothing.  The lie is just floating out there unconnected to “objective reality.”

To learn how to attack the lie, we must go back to eighth grade geometry, where we were taught basic logic. (At least that was taught to me in eighth grade in 1963).  Recall the basic formula:

True Formula #1: A ⇒ B. Or translated:  If A is true, then B is true.

Example: If I fall unclothed into the ocean, then I get wet.

One we establish the truth of Formula #1, Formula #2 follows as true:

True Formula #2 follows (this is the important one): ∼ B ⇒ ∼A. Or translated:  If not B is true, then not A is true.

Continuing example: If I am not wet, then I have not fallen unclothed into the ocean.

Apply this to the lie we are trying to attack. The attack on the lie comes from multiple directions.  Hence the name of this essay.

STEP 1: Assume that the lie is true.  Call it “A.”

STEP 2: If the lie is true, what “facts” might we reasonably expect to see connecting the lie to objective reality. Call them “B.”  Recall A ⇒ B.

Pick five connecting “facts.” (You can pick more, you can pick fewer.  Suit your taste).

A ⇒ B₁;  A ⇒ B₂;  A ⇒ B₃;  A ⇒ B₄;  A ⇒ B₅.

Get the witness to agree that the five connecting “facts” are false. The witness agrees ∼B₁;  ∼B₂;  ∼B₃;  ∼B₄;  ∼B₅.

Therefore:

∼ B₁ ⇒ ∼A: A is false.  The lie is proven false.

∼ B₂ ⇒ ∼A: A is false.  The lie is proven false.

∼ B₃ ⇒ ∼A: A is false.  The lie is proven false.

∼ B₄ ⇒ ∼A: A is false.  The lie is proven false.

∼ B₅ ⇒ ∼A: A is false.  The lie is proven false.

Or at least, you argue that.

Let’s use this technique in an easy example. You are prosecuting a young man for robbing a bank.  At the last minute, his mom takes the witness stand and says her son was with her the entire day of the bank robbery.

The basic cross examination, if you have the evidence, is easy. If you have a prior contradictory statement she gave to a neighbor or the police, if you have her employment records showing she worked all that day; if you have a film of what is obviously her son with a gun in his hand inside the bank during the robbery, the cross examination is easy.  But what if you have none of those things?  All you have is your belief she is lying.

Use the Five Different Directions Technique of Cross Examination. It goes like this:

Assume that mom is telling the truth. What would follow, if her son was with her during the day of the bank robbery?

Direction 1: She would have told the investigating detectives that story when she was first interviewed about the bank robbery.  She didn’t.

A ⇒ B₁:  If her son was with her, then she would have told the police in her interview.∼ B₁ ⇒ ∼A: She did not tell the police in her interview; therefore her son was not with her.  A is false.  The lie is proven false.

The questioning is simple:

Question: Mam, you were interviewed by two police officers after the bank robbery, right?

Answer: Yes.

Question: The police officer asked you questions about the bank robbery?

Answer: Yes.

Question: The police officers asked you questions about your son, didn’t they?

Answer: Yes.

Question: Never during this interview did you tell them your son was with you all day?

Answer: I didn’t, but I was afraid to talk to them.

Direction 2: If she were too frightened initially, she would have told the police or the prosecutors eventually. She didn’t. 

A ⇒ B₂:  If her son was with her, then she would have eventually told the police.

∼ B₂ ⇒ ∼A: She never told the police; therefore her son was not with her.  A is false.  The lie is proven false.

Question: You have a telephone in your home, right?

Answer: Yes.

Question: And since your interview with the police and until today, your phone has worked properly, hasn’t it.

Answer: Yes.

Question: Never since your interview did you call the police and inform them they had arrested the wrong man, that your son was with you all day, right?

Answer: Right.

Alternative Question Form: Of course, after your interview you called the police and informed them they had arrested the wrong man, that your son was with you all day, right?

Answer: No.

Direction 3: If she were too frightened initially, she would have written the police or the prosecutors eventually.  She didn’t.

A ⇒ B₃:  If her son was with her, then she would have eventually written the police.

∼ B₃ ⇒ ∼A: She never wrote the police; therefore her son was not with her.  A is false.  The lie is proven false.

Question: You know how to find the address of the police, don’t you?

Answer: Yes.

Question: Mam, you have 34¢ to buy a postcard, don’t you?

Answer: Yes.

Question: Despite knowing the address of the police and despite have 34¢ you did not write a postcard to the police and tell them they had arrested the wrong man, that your son was with you all day, right?

Answer: No answer.

Direction 4: If her son misses school and stays home all day, either she calls the school or the school calls her to make sure her son is OK.  Neither call happened.

A ⇒ B₄:  If her son was with her, then she would have called the school or they would have called her.

∼ B₄ ⇒ ∼A: No such call occurred; therefore her son was not with her.  A is false.  The lie is proven false.

Question: On the day of the bank robbery, a school day, you never called the school to tell them you son was with you at home, did you?

Answer: No.

Question: On the day of the bank robbery the school did not call you and ask about your son, did they?

Answer: No.

Direction 5: Your turn, dream one up.

You can also use the Five Different Directions Technique on your friends, your spouse, your children, and your co-workers to expose all sorts of lies. Of course you will end up divorced, unemployed and friendless, but no matter, you will have exposed the truth.

Seriously, this is a very aggressive and effective technique. Use it carefully.

EDWARD M. ROBBINS, Jr. – For more information please contact Edward M. Robbins, Jr. -EdR@taxlitigator.com  Mr. Robbins is a principal at Hochman, Salkin, Rettig, Toscher & Perez, P.C., the former Chief of the Tax Division of the Office of the U.S. Attorney (C.D. Cal)  and represents clients throughout the United States and elsewhere involving federal and state, civil and criminal tax controversies and tax litigation. Additional information is available at http://www.taxlitigator.com