Thursday, November 19, 2020
Thursday, October 22, 2020
F. Lee Bailey’s cross-examination of Mark Fuhrman was legendary. It is a good example of an effective cross of a liar. In 1995, then detective Mark Fuhrman was testified about his discovery of evidence including a bloody glove in the O.J. Simpson case involving the murder of Simpson’s wife Nicole and Ron Goldman.
First, talk a look at a portion of the cross, and after you do we can examine Bailey’s techniques. Here’s an excerpt from the cross:
Bailey: Q. Do you use the word “n—” in describing people?
Prosecutor Clark: Same objection.
The Court: Presently?
The Court: Overruled.
Fuhrman: A. No. Sir.
Bailey: Q. Have you used that word in the past ten years?
A. Not that I recall. No.
Q. You mean if you called someone a “n—” you have forgotten it?
A. I’m not sure I can answer the question the way you phrased it. Sir.
Q. You have difficulty understanding the question?
Q. I will rephrase it. I want you to assume that perhaps at some time, since 1985 or 6, you addressed a member of the African American race as a “n—“. Is it possible that you have forgotten that act on your part?
A. No, it is not possible.
Q. Are you therefore saying that you have not used that word in the past ten years, detective Fuhrman?
A. Yes, that is what I’m saying.
Q. And you say under oath that you have not addressed any black person as a “n—” or spoken about black people as “n—” in the past ten years, detective Fuhrman?
A. That’s what I’m saying. Sir.
The defense not only called witnesses to say that Fuhrman used the word, the defense produced an audio tape in which he used the word.
Fuhrman was later convicted of perjury and sentenced to three years’ probation.
What techniques did Bailey employ in cross-examining this liar. First, he adjusted his demeanor to fit the witness, whom he knew was lying—Bailey was confrontational. Second, Bailey locked Fuhrman into the lie. Third, he used surprise—he didn’t telegraph to Fuhrman that he had both witnesses and an audiotape that would contradict Fuhrman. Cross by contradiction has been discussed here and in Cross-Examination Handbook as a very effective cross-examination impeachment technique.
Friday, October 16, 2020
Cross-examination can expose the improbability of a witness’s testimony. The evidentiary authority for probing the improbability of a witness’s testimony is found in Evidence Rules 401 and 611. Rule 401 states the test for relevance: “Evidence is relevant if: (a) it has a tendency to make the existence of any fact more or less probable.” Rule 611states that the court may “exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to (1) to make the procedures effective for determining the truth. . .” This provision of Rule 611(a) can convince the judge to overrule an objection to the cross that questions the improbability of the witness’s testimony. cross-examination to proceed. Rule 611(b) includes cross-examination matters: (1) within the scope of direct; (2) affecting credibility; or (3) that the court decides are pertinent.
Tuesday, October 6, 2020
Cross-examination should vary depending on the type of witness you are examining. British barrister David Paul Jones’s Golden Rules of Cross-Examination, which he wrote a century and a half ago, expressed this idea as follows:
“Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.”
We discuss strategies and techniques for adapting the cross to the witness in Cross-Examination Handbook. What follows are a few of the techniques that can be employed based upon the type of witness you are examining.
The evader will not give a straight answer when it's harmful and will run on introducing as much damaging information as possible. To gain control, these techniques can be used: repeat the question; have the court reporter read the question back to the witness; ask the witness to repeat the question; ask whether the witness understood the question and whether some impediment prevents the witness from answering, and if necessary, if the cross-examiner believes the court will help, ask the judge to direct the witness to answer.
When the witness is a talker who is arrogant and wants to lecture, keep the witness going and allow the witness to self destruct. Courtroom demonstrations by a boaster can be fun.
Examine the liar on details and encourage the liar to invent a few. Show improbabilities and try to put the witness on the horns of a dilemma.
Attempt to get the witness to repeat "I can't recall" as often as possible. Count them. It is ideal if the witness remembered on direct but not cross.
If the witness is slow to answer, she will leave the impression of needing time because she is unsure or because she is lying. Do not push the witness. Argue a little but overall be courteous and calm.
Wednesday, September 16, 2020
Saturday, September 12, 2020
As we have said here and in Cross-Examination Handbook, the primary goal of cross-examination is to capture the truth from the witness. On cross, you shouldn’t be trying to discover anything; you shouldn’t ask any interrogatory questions. You know the truths that the witness has to offer and you aim to extract those known truths. If the witness fails to provide the truths that you can prove by direct or circumstantial evidence or by common sense, the witness will suffer the consequences.
You may have missed this illustration of how to extract the truth or make the witness look witless when it was first discussed here. It bears repeating. The Pizza Connection case provides a stark example of how a witness’s testimony can be exposed as comical if the witness refuses to provide the truthful answers. The Pizza Connection case was a mega-trial involving 18 defendants who were charged with a $1.6 billion heroin smuggling and money laundering that stretched from Brazil to small pizzerias in the Midwest. Trial lasted from October 24, 1985 to March 2, 1987.
The following is an excerpt from Shanna Alexander’s book The Pizza Connection: Lawyers, Money, Drugs, Mafia 318-320 (Weidenfeld & Nicholson) (1988) in which she describes United States Attorney Robert Stewart’s cross-examination of an alibi witness and it’s a gem of a cross:
(Defense counsel) Larry Bronson’s defense of (defendant) Sal Greco is focused on his client’s need to prove that he was not in a Bagheria farmhouse in early March 1980 watching a heroin quality-control test. Bronson will show he [Greco] was quietly, busily at home in New Jersey. He calls Greco’s good friend and tax accountant, Justin Pisano, a man who keeps detailed date books.
Under patient examination by Bronson, the witness goes through a precise account of driving to the Jersey Shore three Sundays in March to go over Greco’s accounts and to visit nearby pizzerias with his client in order to compare their business with that of the Greco pizzeria in Neptune City.
Stewart’s cross-examination of Pisano becomes this prosecutor’s finest hour. He concentrates on the March date-book entries.
“On March 2, yes, I drove down to see Greco,” Pisano says, “and we had a leisurely dinner.”
“You told us yesterday you were in no rush, right?” “Yes.” “And that’s the truth, the whole truth, and nothing but the truth?”
“Yes.” “Then what is this appointment for 7:00 p.m., with Troviatta?” “Just a tax appointment. Early March is income tax time, and I made many Sunday and night appointments to service all my tax clients.” “What is Troviatta’s first name? Where does he live?” “I don’t remember. I don’t even think I do their taxes anymore.” Stewart remembers. He says Pisano was thirty-five miles away from Greco’s pizzeria that night, in the heart of Manhattan, at Lincoln Center, at the opera. Pisano emphatically denies this. He has only been to Lincoln Center once in his life, to hear Pavarotti. “Are you an opera fan?” “Nope. Only been to one opera in my life, when I was in high school.” Stewart shows the witness, and the jury, the Sunday-evening newspaper opera
listing for March 2, 1980, at the New York State Theater at Lincoln Center: La Traviata. Bronson objects. “Misleading the witness, your Honor.
His witness’s tax client is named Troviatta—with two t’s.” “And the advertisement for the opera is spelled T-R-A-V-I-A-T-A, right?”Stewart asks. “No. It’s La Traviata,” says Pisano gamely. “La Traviata?” “Right. I don’t see the comparison to Troviatta.” “Except for the time. That’s a coincidence. Isn’t it?” Pisano agrees, and Stewart directs him to look at the entry for two Sundays ahead, March 16, at one in the afternoon. “Are you referring to Carmen? Carmen Sangari, who I no longer do?” “Carmen Sangari?” Stewart produces the New York Times, and asks him to read aloud the opera listing for that Sunday afternoon. Pisano looks, and agrees that this is truly an amazing coincidence.
Spectators have begun to giggle. But Stewart is not finished. He directs the wit- ness’s attention to his diary entry for the following Sunday at 7:00 p.m. “Is that a tax client of yours?”
The giggling turns to guffaws. The notebook says, “Barber of Seville.”
This cross illustrates that no matter which way the witness responds, the cross-examiner wins when the question require that the witness concede the truth or suffer the consequences.