Saturday, July 19, 2014

Videos of Cross-Examinations

Yogi Berra is supposed to have said “You can observe a lot just by watching,” and that is not a bad method of learning the principles and techniques of cross-examination. You sometimes even learn more from watching a wretched cross-examination than you can from watching a brilliant one. Set forth below are videos of cross-examinations performed in celebrated trials both recent and historical. In the videos you will see examples of both wretched and brilliant techniques.

STATE OF TEXAS vs AMANDA HAYES
Amanda Hayes stood trial for helping her husband kill and dismember his ex-wife. She defended herself by claiming that she was an innocent victim of circumstance who knew nothing of the murder until her husband told her about it and enlisted her aid in disposing of the body.
Amanda Hayes Cross-Examination https://www.youtube.com/watch?v=3BCd0bGDZDw

STATE OF TENNESSEE vs JESSIE DOTSON.
Jessie Dotson stood trial for the mass murder of his brother and five other people. The State contended that he killed his brother in an argument and then killed the others in an attempt to eliminate witnesses.
Jessie Dotson Cross-Examination https://www.youtube.com/watch?v=9_hHcpos5tk

STATE OF TEXAS vs JODI ARIAS
Jodi Arias stood trial for killing her boyfriend Travis Alexander, who was found dead in his home with 27 to 29 stab wounds in his body. Arias claimed she killed Alexander in self-defense.
Jodi Arias Cross-Examination, Day 1, Part 1 https://www.youtube.com/watch?v=Muqjj4B_9Kg
Jodi Arias Cross-Examination, Day 1, Part 2 https://www.youtube.com/watch?v=zl21IwjLkQ0
Jodi Arias Cross-Examination, Day 1, Part 3 https://www.youtube.com/watch?v=zl21IwjLkQ0
Jodi Arias Cross-Examination, Day 2, Part 1 https://www.youtube.com/watch?v=23SBSj5VhL0
Jodi Arias Cross-Examination, Day 2, Part 2 https://www.youtube.com/watch?v=A7czwIw9iPc
Jodi Arias Cross-Examination, Day 2, Part 3 https://www.youtube.com/watch?v=A7czwIw9iPc
Jodi Arias Cross-Examination, Day 3, Part 1 https://www.youtube.com/watch?v=FRxKpQqfBrE
Jodi Arias Cross-Examination, Day 3, Part 2 https://www.youtube.com/watch?v=EuDwXwt9UHs
Jodi Arias Cross-Examination, Day 4, Part 1 https://www.youtube.com/watch?v=6DHS3h4Cp98
Jodi Arias Cross-Examination, Day 4, Part 2 https://www.youtube.com/watch?v=ZQY1hwcSpY4
Jodi Arias Cross-Examination, Day 5, Part 1 https://www.youtube.com/watch?v=iIpwiPxPn7Y
 Jodi Arias Cross-Examination, Day 5, Part 2 https://www.youtube.com/watch?v=L_TCy2_816Y
Jodi Arias Cross-Examination, Day 5, Part 3 https://www.youtube.com/watch?v=Iniso_hINQY

STATE OF FLORIDA vs MICHAEL DUNN
Michael Dunn stood trial for murder and attempted murder for firing multiple shots into an automobile which was playing music too loudly to suit him. Dunn claimed he acted in self-defense. The jury convicted him on the attempted murder counts but hung on the murder count. Dunn awaits retrial on the murder charge.
Michael Dunn Cross-Examination, Part 1 https://www.youtube.com/watch?v=GtqSnInyWQo
Michael Dunn Cross-Examination, Part 2 https://www.youtube.com/watch?v=H0WlOniKN68
Michael Dunn Cross-Examination, Part 3 https://www.youtube.com/watch?v=lWaRfKDBXfI
Michael Dunn Direct Examination https://www.youtube.com/watch?v=JvUZxfG6VBI

INTERNATIONAL MILITARY TRIBUNAL vs HERMANNN GOERING
Hermann Goering, who at one time was Adolph Hitler’s right-hand-man, stood trial at Nuremberg for war crimes and crimes against humanity. Goering proclaimed himself to be “not guilty in the sense of the indictment.” He testified that he was blindly loyal to Hitler and completely ignorant of the Holocaust.
Nuremberg, Cross-Examination of Hermann Goering, Part 1 https://www.youtube.com/watch?v=mfwujaV7Ia8
Nuremberg, Cross-Examination of Hermann Goering, Part 2 https://www.youtube.com/watch?v=clNXvdkJs44
Nuremberg, Cross-Examination of Hermann Goering, Part 3 https://www.youtube.com/watch?v=GuI9IfbPsKk
Nuremberg, Cross-Examination of Hermann Goering, Part 4 https://www.youtube.com/watch?v=lKRZCyO-htE

REPUBLIC OF SOUTH AFRICA vs OSCAR PISTORIUS
Oscar Pistorius, the “Blade Runner,” stood trial for the murder of his girlfriend. Pistorius claimed that he accidentally shot his girlfriend in self-defense when mistook her for a burglar.
Oscar Pistorius Cross-Examination, Appears to Change His Story https://www.youtube.com/watch?v=7rcVtBcvCTo
Oscar Pistorius Cross-Examination, Summary https://www.youtube.com/watch?v=geNb0u5pHdg

PEOPLE OF THE STATE OF CALIFORNIA vs O.J. SIMPSON
Mark Fuhrmann was an L.A.P.D. officer who participated in the investigation of the murders of Nicole Simpson and Ron Goldman. Fuhrmann discovered key evidence in the case, and the defense attempted on cross-examination to establish that he fabricated the evidence because of his bigotry and racism.
Mark Fuhrmann Cross-Examination https://www.youtube.com/watch?v=EfMrZk5H2tY


Friday, May 23, 2014

COLD READING TECHNIQUE FOR CROSS-EXAMINATION

Years ago a friend of mine asked me (Bob Dekle) to watch a late night television show with him. In the show, a psychic summoned dead relatives from beyond the pale to talk to his guests. The show began with some appropriate music, a video of stars swirling in the galaxy, and a voice-over talking about communicating with the dear departed. The star came onstage and summoned the first subject to join him. After a few preliminaries, the psychic began his spiel, asking questions of the subject and then making remarkably accurate observations about the person whom the subject wanted summoned from the beyond. Before the ghost of the departed relative made his appearance, I said to my friend, “You see what he’s doing, don’t you?” My friend had no idea. I explained. “The psychic is picking the subject for information and then feeding it back to her.” My friend considered what I had said for a moment and then replied, “You sure know how to spoil a party, don’t you?”

Although I didn’t know it at the time, I had just witnessed my first “cold reading.” Cold reading is a technique used by psychics to extract information for use in conjunction with Tarot readings, séances, and the like.  Con artists also use the technique to extract money from their victims, and confidential informants use it to give the appearance of assisting law enforcement without really telling the officers anything that wasn’t already known. The Full Facts Book of Cold Reading gives a thorough description of the techniques involved. In reading that book, I was struck by the similarities between cold reading and concession-seeking cross-examination.
1.    Both techniques are tools of persuasion. In the one the audience for persuasion is the person being questioned, in the other the audience is the jury.

2.    Cold reading seeks to persuade the subject what wonderful talent the reader has; concession-seeking cross-examination seeks to persuade the jury what a wonderful case the examiner has.

3.    Cold reading seeks to achieve persuasion by discovering previously unknown facts to use in achieving persuasion; concession-seeking cross examination seeks to achieve persuasion by disclosing previously known (or strongly suspected) facts to use in achieving persuasion.
4.    Cold reading achieves persuasion by extracting facts from unwitting subjects; concession-seeking cross-examination achieves persuasion by extorting facts from unwilling witnesses.
 
5.    Both techniques work from general and non-controversial facts to specific and vital facts.
A cold reading might progress something like this:

Q. I’m getting the feeling that there is a significant person in your life whose name starts with J—perhaps Jane or Jamie or Joan, does that feel right to you?
A: Well, I don’t have any girlfriends, but my boss is named John.
Q: John is a significant person in your life?
A: Yes, very.
Q: This wouldn’t involve issues relating to John’s making unfair demands upon you?
A: No, nothing like that.
Q: I didn’t think so. So you have a cordial relationship with your boss?
A: Yes. I really enjoy working for him.
Q: John has more or less taken you under his wing?
A: Yes.
Q: Mentored you?
A: Yes.
Q: Tried in every way to help you to succeed and excel?
A: Yes.
Q: He might even be grooming you to take over his job when he retires.
A: Yes, that’s right. How on earth could you possibly know that?

Assume that John is the defendant in a lawsuit and this person is called as a witness on his behalf. A concession-seeking cross-examination seeking to lay the groundwork for an impeachment for bias might run something like this.

Q: You’ve worked for John for quite some time?
A: Yes.
Q: You have a cordial relationship?
A: Yes.
Q: You enjoy working for him?
A: Yes.
Q: He’s taken you under his wing?
A: Yes.
Q: Mentored you?
A: Yes.
Q: Helped you to excel in your job?
A: Yes.
Q: In fact, he’s mentoring you to take over his job when he retires next year?
A: Yes.
Q: You owe him a great debt of gratitude?
A: Yes.

The difference between the two is that the cold reader begins with a plausible guess, draws reasonable inferences from the facts admitted, and discovers a fact which convinces the subject he has true psychic powers. The concession-seeking cross-examiner begins with an uncontested fact and builds upon that fact with reasonable inferences and other known facts to the point of painting the witness into a corner where the witness must admit a disagreeable fact.

One of the best jobs of employing this technique which I have ever witnessed came in a double murder case occurring at a pool hall. The only eyewitness to the crime was the defendant’s brother, who steadfastly refused to testify. Finally, the witness was persuaded to testify in order to be released from a jail sentence for contempt of court. If he had been directly asked about the killing, he would have immediately [and somewhat truthfully] said “I didn’t see nothing.” The cross-examiner began the examination with non-controversial facts, such as the fact that the two brothers went out on the town the night the murder occurred. Moving slowly and methodically from that uncontested fact to other uncontested facts, the examiner slowly drew the noose tighter and tighter. By the end of the cross-examination the examiner had the witness standing outside the pool hall with his brother, who was angry over some slight perpetrated by one of the two men in the bar. The examiner slowly walked the witness through his brother’s opening the trunk of the car, removing a sawed-off shotgun, checking to see if it was loaded, and going back into the pool hall. Then the examiner had the witness describe the report of two gunshots followed by his brother leaving the pool hall and putting the shotgun back into the trunk. Mission accomplished.


The author of Cold Reading describes this technique as the “cream principle.” When creaming coffee, pour in a little at a time until you get it right. If you try to put it all in at once, you will likely ruin the coffee.  The author’s “cream principle,” as well as several other techniques he describes, can very profitably be used by the concession based cross-examiner. 

Friday, May 2, 2014

NEW CROSS-EXAMINATION TRAINING


Coming Soon - Inaugural Advanced Trial Advocacy Institute – June 2

There will be a healthy dose of instruction on winning cross-examination strategies and techniques at the new week-long Advanced Trial Advocacy Institute (ATAI) that I and Professor Marilyn Berger are chairing. The course begins June 2, 2014. Seattle University Law School and the American College of Trial Lawyers are sponsoring this  CLE program. 31.5 CLE credits pending.

Focus on Cross-Examination

Cross-examination will be an emphasized component of the Institute because it is the most challenging trial skill to perfect. Besides a presentation on “Concession-Seeking Cross-Examination,” the faculty will demonstrate cross-examination techniques and the attendees will engage in cross-examining witnesses. Colette Tvedt of Shroeter Goldmark & Bender will conduct the cross-examination demonstration. Four workshops are dedicated to examining witnesses.   

Distinguished Faculty

The Advanced Trial Advocacy Institute program will be taught by an outstanding faculty of over 20 accomplished trial lawyers, judges and communication specialists, including: Amy Forbis (Pres. American Board of Trial Advocates); Thomas Lemly (Pres. Wa. State Committee of American College of Trial Lawyers); Karen Koehler; Jeffrey Tilden; Lisa Marchese; Judge John Erlick; and Craig Smith (Senior Trial Consultant, Prolumina – Litigation Strategies).

Benefits of this week-long course:

  *   Preparing and trying a case with guidance and supervision.
  *   Seasoned trial attorneys, as well as communication specialists,
       provide feedback on your performances.
  *   One-on-one video review of your presentation.
  *   Develop effective courtroom communication techniques.
  *   Understand today’s visual trial technology.
  *   In-depth discussion on trial ethics and avoiding pitfalls.

The course is designed for new lawyers who are seeking a firm foundation in the finest trial skills through more experienced trial lawyers who want to take their skills to a higher level.

Click Here to REGISTER for this Event.
The program will be held at Seattle University School of Law
Click here for more information on the SCHEDULE and here for information on our FACULTY
For questions, contact us at cle@seattleu.edu or (206) 398-4233.

Sunday, April 20, 2014

SMOKE-AND-MIRRORS CROSS-EXAMINATION AND COURTROOM POSITIONING

Where to Stand

Recently I (Bob Dekle) had my class doing practical exercises on concession-seeking cross-examination. See Cross-Examination Handbook for a discussion of the concession-seeking method.  Since we were in a mock courtroom, the non-performing students played the role of jurors and the witness took the witness stand. The first performer asked me if she should move the lectern to the middle of the courtroom so that the jury could fix their attention on her rather than the witness. She had been working in a law office, and she said that was what some of the associates told her she should do. I began by telling her that I was probably going to be giving her the minority report on this issue, and then I began to explain why I didn’t think what she suggested was such a good idea.

“I’ve been to lots of CLE classes on trial advocacy where the speakers taught that you should do this. The conventional wisdom is that on direct you hide yourself from the jury so they will focus on the witness and on cross you get out in front of them so they can focus on you. I understand why they say this, but I disagree.

“On direct, you want the witness to be the source of information, with you guiding the witness through the testimony, so naturally you would want the jury to fix their attention on the witness. On cross-exam, you want to be the source of information with the witness simply being there to agree with you and advance your case or disagree with you and destroy his credibility. Why shouldn’t the jury be focused on the source of information on cross just as they are on direct? Here’s why:

“On concession-seeking cross you’re asking questions that the witness can’t deny without looking bad. You want the jury looking at the witness so that they can see his distress as he makes disagreeable admissions or see him sweat as he tries to dodge those disagreeable admissions. If the jury sees the witness sweating blood over admitting something helpful to your side, the assertion becomes more believable for the witness’s distress. If they see the witness squirming as he tries to avoid admitting the obvious, they begin to disbelieve the harmful things the witness has said on direct. They miss all this if they’re looking at you and not the witness.

Smoke and Mirrors Cross-Examination

“There is only one time that I can think of where it might be desirable to make yourself the center of attention on cross. If you’re doing a smoke-and-mirrors cross trying to discredit a truthful witness, the last place you want the jury looking is at the witness.”

Just as the Wizard of Oz wanted Dorothy to pay no attention to the man behind the curtain [i.e. the truth], the smoke-and-mirrors cross-examiner wants the jury to pay no attention to the witness [i.e. the source of truth].    

I went on to give the student another opinion that might run against conventional wisdom. I advised against the smoke-and-mirrors style of cross. First, it’s dishonest to pretend a fact is untrue simply because it is disagreeable. Second, most moderately intelligent jurors can tell when you’re trying to make green look red, and you’re going to destroy your credibility with them. Third, I think you can make more headway by trying to mitigate the disagreeable fact than by trying to disprove it. Fourth, no witness ever took the witness stand who didn’t have information helpful to the other side. You score more points with a jury by corkscrewing that information out of the witness. Remember, we’re talking about the cross of a truthful witness, and a truthful witness is going to reluctantly tell the truth even though it hurts his side. If the witness becomes untruthful in trying to avoid those helpful admissions, then the witness himself gives the jury reason to disbelieve the truth he said on direct examination.

There’s an old saying that cross-examination is more often suicidal than homicidal. If, instead of trying to impeach the unimpeachable witness, you work at a concession-seeking cross, he just may commit suicide and impeach himself by trying to avoid admitting the obvious. Your job in that situation is not to murder the witness, but to emulate good Dr. Kevorkian and assist the suicide.

Thursday, April 10, 2014

LINCOLN USED CONCESSION-SEEKING CROSS-EXAMINATION

The Crafton Murder Trial Cross-Examination

Abraham Lincoln’s fame as a cross-examiner rests in large part on his decisive use of an almanac to discredit a witness in what history remembers as the Almanac Trial. If we dig into the history books, we can find much better support for the proposition that he was an excellent cross-examiner.

In the late 1980’s the transcript of Lincoln’s last murder case was discovered in a shoe box by the great granddaughter of the defendant. Peachy Quinn Harrison came from a well-to-do family, and they were able to do something that was rarely done in those days—they hired a court reporter to take down the testimony at the trial. Apparently the reporter was providing the defense team with daily copies of the testimony, and Harrison kept the transcript after his acquittal.

The facts of the Harrison case are briefly this: Harrison and another young man, in addition to being political enemies, were apparently rivals for the affection of a young lady. They almost came to blows at a Fourth of July picnic, and afterward exchanged threats and counter threats. Greek Crafton threatened to “whip” Harrison, and Harrison threatened to shoot or kill Crafton if Crafton laid a hand on him.

They came to blows in a drugstore one Sunday morning in August of 1859. Crafton apparently was the aggressor, with Harrison saying he did not want to fight. Crafton grabbed Harrison, and in the ensuing scuffle Crafton suffered a severe stab wound. Harrison fled the scene and it was several days before officers could get him arrested. In the interim Greek Crafton died of his wounds. The Sangamon County Grand Jury indicted Harrison for the murder of Crafton, and the trial commenced on August 31, 1859. They believed in speedy trials in those days.

The star witness for the prosecution was John Crafton, the victim’s brother, who had sustained a severe cut on his arm when he came to the aid of his brother. Lincoln’s main strategy was to portray Greek Crafton as the aggressor. He intended to do this by a concession-based cross-examination getting John Crafton to repeat admissions he made at the preliminary hearing. See Cross-ExaminationHandbook for further discussion of concession-seeking cross-examination. There was no court reporter at the preliminary hearing, but the defense team took notes on the testimony for use at the upcoming trial. Lincoln also wanted to assert facts that either would later be proven by other witnesses or had already been proven by state witnesses, thereby impeaching John Crafton with the contrary testimony. The cross-examination went like this:

Q. About that time [when the fight began] did you hear either of the parties say anything?
A. No, sir. I don’t remember any such thing. I think I said the first thing spoken in the room. I told Mr. Short to let them loose, that Greek could whip him. [Other state witnesses had already testified to an exchange of words between the two men].
Q. You did not add that “Greek should whip him?” [Another fact already testified to by a state witness].
A. No, sir, but I told him he could whip him.
Q. Did you see anything about the beginning or for a little while of Harrison holding on to one of the counters? [Other witnesses had already testified that Greek accosted Harrison in a drugstore and began pulling him away from a counter, whereupon Harrison got hold of the counter to resist].
A. No sir *** I did not see any holding on.
Q. Were they so far from the counter as to leave no question about it in your mind?
A. I suppose if a man had tried, he could reach the counter from where they were. ***
Q. And then you pulled on him, rather to pull him out of the fight? [Already proven by other witnesses].
A. I could not say whether I pulled him or not. I caught his arm and told him to let them loose. I held on until he pushed me backwards over this south counter. ***
Q. You moved along rather in a row and you came to the boxes first before Greek?
A. No, I think Greek fell about the time I leaned over this counter, pushed by Short. About that time I saw him fall.
***
Q. You did not see the knife when the blow was given?
A. I did not see the knife go into him.
[Lincoln now has the witness reenact the struggle].
Q. I suppose when you told Short to let him alone—that Greek could whip him, that you had the ordinary meaning and wanted Greek to whip him?
A. I thought after they got into the fight that Greek could whip him.
Q. And you wanted him to? [The probabilities were that John wanted his brother to whip Harrison, so asking the question was a win/win proposition. If John admitted he wanted Greek to whip Harrison, it showed bias. If he refused to admit it, he lost credibility with the jury].
A. Well, certainly I did.

We don’t see a dramatic knockout blow being landed in this series of questions, but that happens more on television than it does in an actual courtroom. What we do see is Lincoln asking short, closed, leading questions which asserted facts favorable to his client. He thereby maintained tight control over the witness. If the witness admitted the facts, well and good. If he denied the facts, Lincoln had the contradictions ready at hand for impeachment. A workmanlike effort which outshines the cross-examination techniques of the other lawyers involved in the case.