Sunday, October 15, 2017

EYE CONTACT DURING CROSS-EXAMINATION

Bailey in the OJ Simpson Trial

Legendary cross-examiner F. Lee Bailey stressed the importance of keeping eye contact with the witness during cross-examination. In Cross-Examination Handbook, we use Bailey’s impeachment of Detective Mark Furhman as an illustration of how to contradict a witness. Watch the video to see Bailey at work in clips of his cross-examinations in the O. J. Simpson case.

Bailey emphatically states that you should never take your eyes off of the eyes of the person you are cross-examining because they are the window into the witness’s mind. They will tell when the witness is fudging or outright lying. If the person is a practiced liar, he points out that their expression never changes. As you watch the video clips of his cross-examinations, you can see him adhering to this principle.

To maintain eye contact, Bailey says the cross-examiner must cross-examine without notes. Leave your notes behind and only if you must go to counsel table and check them before resuming the cross. While eye-to-eye contact is critical, the vast majority of trial lawyers should have their notes in front of them or nearby. Why? Because they are not F. Lee Bailey’s. Most lawyers who attempt cross-examination without notes fail. They move from subject to subject, becoming impossible to follow. They repeat what was covered during direct, giving strength to the other side’s case. They fail to take advantage of the opportunity that cross-examination provides to tell the examiner’s story of the case and emphasize the cross-examiner’s themes.

Eye contact can be maintained while using notes of the type we describe in the Cross-Examination Handbook because they are simple and easy to reference. Counsel merely glances at the notes when necessary, then looks the witness in the eyes while both asking the question, listening to the answer and asking follow-up questions.


Friday, October 6, 2017

TEN COMMANDMENTS OF CROSS-EXAMINATION REVISITED

The late, great Professor Irving Younger gave us the Ten Commandments of cross-examination. He could talk all day about them, using memorable and humorous illustrations. He threatened to haunt his listeners if they ever violated one his ten commandments. These Ten Commandments are still viable and important and it’s time to revisit them:
IRVING YOUNGER’S TEN COMMANDMENTS
OF CROSS-EXAMINATION
1.   Be brief.
2.   Short questions, plain words.
3.   Always ask leading questions.
4.  Don’t ask a question, the answer to which you do not know in advance.
5.   Listen to the witness’[s] answers.
6.   Don’t quarrel with the witness.
7. Don’t allow the witness to repeat direct testimony.
8.   Don’t permit the witness to explain answers.
9.   Don’t ask the “one question too many.”
10. Save the ultimate point of your cross for summation.

The core reasoning behind these Ten Commandments is that if you adhere to them, you will control both the witness and the information delivered to the jury. If you lead, you provide the answer. If you know the answer, only the information you want the jury to hear will be heard. Follow these commandments and you are testifying. Break them, and suffer the consequences.

The Ten Commandments are valuable today, and should be reviewed before any trial. However, rather than being Ten Commandments, think of them as Ten Guidelines. There are times you may vary from them without suffering and there are times you should break a commandment.

Don’t Always Ask Leading Questions:  If you ask only leading questions, you may appear to be unfairly restricting the witness; not allowing the witness any latitude. You can loosen the reins if the answer couldn’t make any difference. Under certain circumstances discussed in Cross-ExaminationHandbook, you can even ask that “Why” question. Also, when the witness is fabricating, sometimes you should let go of the reins altogether and let the witness run. When the witness is lying and the examiner can prove the lie, non-leading questions are appropriate. In the Handbook, we go into how to expose a liar.

If the Situation Calls for It, Quarrel with the Witness: The demeanor of the cross-examiner and how questions are formed should vary depending upon the type of witness. While jurors will tend to be protective of a lay witness, who like the jurors is unaccustomed to a courtroom, they will tolerate and even expect that the lawyer will mix it up with a professional expert witness. The cross-examiner must adjust to the situation.

It Isn’t Always Necessary to Know the Answer Before Asking: Francis Wellman in the Art of Cross-Examination put it better when he wrote,  “A lawyer should never ask a witness in cross-examination a question unless in the first place the lawyer knows what the answer would be or in the second place didn’t care.”

What’s That Question?: “Avoid one too many questions,” commands Younger. Would any of us ask one too many questions if we knew which question was one too many? What does this commandment mean?

Younger’s ten points remain presumptive guidelines, and may only be ignored when a good reason exists.


Should you want to watch and listen to Professor Younger lecture on the Ten Commandments, watch him here.

Thursday, October 5, 2017

HUMOROUS AND ILLUSTRATIVE CROSS-EXAMINATION

“More cross-examinations are suicidal than homicidal,” wrote Emory Buckner in Francis Wellman’s seminal work on cross, The Art of Cross-Examination.” And one way to cause a self-inflicted wound is to ask the open-ended “why” question. One illustration of this took place when a defense attorney cross-examined a police officer during a felony trial. It went like this:

Q: Officer, did you see my client fleeing the scene?
A: No sir, but I subsequently observed a person matching the description of the offender running several blocks away.

Q: Officer, who provided this description?
A: The officer who responded to the scene.

Q: A fellow officer provided the description of this so-called offender. Do you trust your fellow officers?
A: Yes sir, with my life.

Q: WITH YOUR LIFE? Let me ask you this then officer – do you have a locker room in the police station – a room where you change your clothes in preparation for your daily duties?
A: Yes sir, we do.

Q: And do you have a locker in that room?
A: Yes sir, I do.

Q: And do you have a lock on your locker?
A: Yes sir.

Q: Now why is it, officer, IF YOU TRUST YOUR FELLOW OFFICERS WITH YOUR LIFE, that you find it necessary to lock your locker in a room you share with those officers?
A: You see sir, we share the building with a court complex, and sometimes defense attorneys have been known to walk through that room.


This is a gem from the past, and you can find other amusingcross-examinations here.

Sunday, October 1, 2017

IMPEACHMENT CROSS-EXAMINATION - INCONSISTENCY


Inconsistency is probably the most frequently employed method of impeachment during cross-examination, especially in cases where depositions have been taken.  Sometimes the inconsistency is not an internal conflict between what the witness now says and what the witness once said. Sometimes it is a conflict between what the witness says and another witness or some irrefutable fact. An example of this type of impeachment was seen in the trial of George Zimmerman. 

In the early days of the investigation, Zimmerman had gone on a nationally televised talk show and asserted that he had never heard of Florida’s “Stand Your Ground” law (SYG). Given the pervasive coverage of the public debate surrounding the passage of SYG, this assertion was inherently implausible. The prosecution was not content to simply rely on the inherently implausibility, but went on to call a professor who had taught a criminal justice class which Zimmerman had taken in college. The professor thoroughly contradicted Zimmerman by revealing that he had been taught about SYG in the class. This impeachment of Zimmerman tends to validate what we have said before  - that impeaching a witness oftendoes very little toward the primary objective of persuading the finder-of-fact to accept your case theory.

Saturday, September 30, 2017

IMPEACHMENT CROSS-EXAMINATION – IT’S NONSENSE

Impeachment cross-examination helps to build your case theory only in a negative way, by eliminating competition from the opposition’s theory. As we have previously noted, a cross that reveals that the witness’s testimony is essentially nonsense is one way to impeach.

If you can demonstrate that the witness is saying something illogical, you have gone a long way toward impeaching the witness. In a horrific domestic violence case tried a few years ago, a man claimed that his wife had received her injuries by jumping from a moving car. He explained that she had been high on drugs and acting out in bizarre fashion for the past two weeks. The problem with his story, which was pointed out quite well on cross examination, was that he and his wife had just the previous night arrived in Florida on a commercial flight from Nevada. One fertile area of cross examination proved to be a line of questions on how his severely drug impaired wife got through the TSA screening to get on the plane. The defendant also had some difficulty explaining why, after his wife jumped from the moving car, he took her home, hogtied her, and stuffed her in a closet rather than taking her to the emergency room.