Sex Stereotyping, Legal Research and Feminist Activism

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[From Indiana University School of Law - Indianapolis student Amelia Deibert]

I thought you all would be interested in an experience I had with Westlaw recently:

I  was  researching  cross-examination tactics, and I happened upon an American Jurisprudence Trials article entitled “Cross-examination of Plaintiff and Plaintiff’s Witnesses” (Westlaw citation is 6 AMJUR TRIALS 201):

(Keep in mind this from a section titled “Particular Witnesses” and the “particular witnesses” covered are children, the “aged” and women)

§ 45. Women

Women, of all types of witness, show the widest range of personality traits while on the stand, because they are usually much more emotional than men, and less inclined to observe and to relate occurrences on the basis of intellectual impressions alone. Paradoxically, most women are less inclined to exaggerate than are certain types of men, and are much more observant of minute details than are most men. As a rule, it can generally be said that women do not make strong witnesses on questions involving technical or factual matters, but make excellent witnesses on those matters involving close observation.

One characteristic common to practically all women witnesses is their responsiveness to a courteous and gentle approach by the cross-examiner. In most cases, friendly persuasion will do more toward getting a female witness to make admissions or concessions damaging to the plaintiff than will any other method of cross-examination. Surprising results sometimes can be obtained by carefully and politely, yet persistently, urging the witness to make concessions, in language similar to the following: “Mrs. Smith, isn’t it possible …?” or, Mrs. Smith, you will agree, won’t you, that this is true …?” or, “Mrs. Smith, you will certainly concede that this is the fact ….”[FN12]

Editor’s Comment: The publisher regrets any assessment of a female witness that tends to characterize her as less reliable than her male counterpart, and would caution an attorney to refrain from indulging in stereotypes.

§ 46. Women:Emotional outbursts

Women frequently seek refuge in tears when pressed into a difficult position on cross-examination or made angry by the cross-examiner. It is very important, therefore, that the defense attorney keep a close watch on the woman witness throughout the cross-examination. He must be ready to ease the pressure quickly and without hesitation, shifting to another phase of cross-examination at once. Another method of counteracting the tears of a witness is to ask the witness directly whether counsel has mistreated her in any way. For example, she might be asked, “Mrs. Smith, have I said or done anything here today that has been discourteous or improper?” Since a careful cross-examiner never allows himself to be either, particularly with a woman witness, the jury quickly gets the point, loses patience with the witness and becomes sympathetic to the defense attorney.

I complained to Westlaw … and was informed they decided to remove the section entirely.

—Amelia Deibert ’10

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  1. Pingback: “I didn't know truth had a gender"« The Jury Room

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