KEEP UP THE PACE DURING CROSS-EXAMINATION

No matter what you might think of F. Lee Bailey, he was a renowned cross-examiner.  This F. Lee Bailey’s pointer on cross-examination to keep the cross-examination questions moving along at a quick clip so that the witness doesn’t have time to concoct answers, is an excellent tip. As he pointed out being wedded to notes can slow down the pace. 

Moving at a fast pace, but not running over a witness, is a tenet that applies particularly well to the cross of an expert witness who will fill the air if counsel permits it. Nothing is more painful to observe than a lawyer who turns away from the expert on the stand and returns to counsel table, allowing the expert to expound in the vacuum provided by the lawyer who turned a back to a professional witness.  

Watch the video of Bailey’s cross-examination of Mark Furhman in the O. J. Simpson case to see how he kept the examination moving at a rapid pace. 

 

F. Lee Bailey’s Legendary Cross-Examination of Mark Furman

 

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?

Bailey: Yes. 

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?

A. Yes.

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. 

PACING DURING CROSS-EXAMINATION

Bailey in OJ Simpson Trial

Renowned cross-examiner F. Lee Bailey’s pointer on cross-examination is to keep the cross-examination questions moving along at a quick clip so that the witness doesn’t have time to concoct answers. Excellent tip. As he points out being wedded to notes can slow down the pace.

Moving at a fast pace, but not running over a witness, is a tenet that applies particularly well to the cross of an expert witness who will fill the air if counsel permits it. Nothing is more painful to observe than a lawyer who turns away from the expert on the stand and returns to counsel table, allowing the expert to expound in the vacuum provided by the lawyer who turned a back to a professional witness. 

Watch the video of Bailey’s cross-examination of Mark Furhman in the O. J. Simpson case to see how he kept the examination moving at a rapid pace.

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.

4TH COMMANDMENT OF CROSS-EXAMINATION

Be Prepared. Do Not Ask a Question to Which You Do Not Know the Answer.

THE 4TH COMMANDMENT

Irving Younger promulgated the 10 Commandments of cross-examination, and those commandments have guided cross-examiners for decades. But, do they make sense? Should they be Commandments or merely Guidelines?

Let’s examine the 4th Commandment: Be prepared. Do not ask a question to which you do not know the answer. Younger cautions that the lawyer who asks a question to which the lawyer doesn’t know the answer will get an answer that damages the examiner’s case. Younger illustrated another Commandment – number 9 requiring counsel to limit questioning (don’t ask that one question too many) - with a story that equally illustrates the 4th Commandment. It involved an assault. The prosecutor called an eyewitness to testify that the defendant bit off the victim’s nose. On cross, defense counsel got the witness to concede that he never saw the nose being bitten off. Not satisfied, the lawyer asked one question too many and one to which the defense lawyer did not know the answer:

Q: If you never saw my client bite the nose off the victim, then why are you here today claiming that my client committed mayhem?
A: I saw him spit it out.

Of course this story is just a story, and a funny one. What prosecutor would not cover the nose-spitting business out of a direct examination? What defense counsel would not have interviewed the witness? How could this nose-spitting have not been known to both sides?

EXCEPTIONS TO THE RULE

The concept of never asking a question on cross unless you knew the answer did not originate with Irving Younger. Francis Wellman in his seminal work on cross-examination, The Art of Cross-Examination, stated the rule and expressed it better a long time before Younger. On page 23 of the 1936 edition of Wellman’s book, which was first published in 1903, it states:

“David Graham, a prudent and successful cross-examiner, once said, perhaps more in jest than anything else, ‘A lawyer should never ask a witness on cross-examination a question unless in the first place he knew what the answer would be, or in the second place, he didn’t care.’ This is somewhat on the principle of the lawyer who claimed that the result of most trials depended upon which side perpetrated the greater blunders in cross-examination. Certainly no lawyer should ask a critical question unless he is reasonably sure of the answer.”

Noncritical Question

Wellman’s is certainly a better, more nuanced guideline. Certainly, when the question is on an inconsequential subject to which no harmful answer can be given, it is fine to ask the question.

Obviously True Answer

A cross-examiner can ask critical questions even though the questioner does not know what the answer will be. Those critical questions that may be safely asked are ones to which both the cross-examiner and the jury know what the answers should be. If there is only one correct answer and that answer is obvious to the jury, what difference does it make what answer the witness gives? If the witness does not provide the expected answer, the witness loses credibility.

The core concept underpinning this approach is that the cross-examiner is testifying (not literally of course), making arguments along lines that the jury will agree to because they are part of common experience. The examiner uses the witness as a foil, who will give the desired answer or be discredited.

F. Lee Bailey in the O. J. Simpson murder trial cross-examined a Sergeant who had been to the murder scene using this approach. Here is part of the exchange – more is on the video at the end of this page:

Q. (Bailey) Wasn’t the evidence staring you in the face that somebody had to go out the back (gate)?
A. (L.A. Police Sergeant) Like I said it was outside.
Q. I understand. Didn’t you tell us in your testimony that you saw the tracks on Bundy (street adjacent to the front of the house)?
A. On Bundy?
Q. Yes.
A. Dog tracks.
Q. Well, that’s right.
A. Yes.
Q. So if the killer wasn’t a dog, somebody had to go out the back gate, didn’t they?
A. They could have gone any direction.
Q. Without leaving any footprints after being in all that blood, Sergeant?
A. Yes, it’s possible. Yes.
Q. How is that possible? Please tell me.
A. Just leave and cover their tracks somehow.
Q. Leave and cover their tracks. Could you explain to us all how that could be accomplished by a killer with bloody feet?
A. If they didn’t get blood on their feet, they wouldn’t leave tracks.
Q. Having been at the scene, can you imagine that the perpetrator or perpetrators didn’t get blood on their feet? Can you imagine that?
A. There was a lot of blood there.
Q. No. Can you imagine that these murders were accomplished without getting any blood on the feet of the perpetrator?
A. I think anything is possible.
Q. Anything is possible. You think they may have been fast enough on their feet to avoid blood while accomplishing the carnage that we’ve been looking at on the screen, is that right?
A. I can’t accurately testify to that. I’m sorry.

Bailey was arguing that the killer(s) left by the back gate and used the Sergeant as his conduit. He clearly didn’t care what the Sergeant’s answers were because he was making his argument to the jury. The more the Sergeant sought to evade the obvious, the more he discredited himself.

Accusatory Question

The accusatory question is the epitome of the obviously-true-answer line of attack. The accusatory question contains the ultimate conclusion, the one that counsel will argue to the jury. It confronts the witness with the cross-examiner’s position. When the accusatory question is asked, the cross-examiner knows the likely answer; the witness usually is going to deny the allegation. Nevertheless, counsel asks it. The accusatory question is often avoided because it is likely to produce nothing but a denial.

On the other hand, if counsel has laid the foundation – established the fact(s) that the witness will deny and counsel believes that the jury has been convinced of the fact(s), counsel can ask the question, confident in knowing that the witness’s answer will not have any credibility. Also, asking the question highlights the examiner’s point.

Horace Rumpole, the fictional English barrister and creation of the recently passed away actual barrister and author John Mortimer, asked the accusatory question, mused over both why he asked it and the witness’s response in “Rumpole and the Expert Witness” as follows:

“And some things you don’t forgive, Dr. Gorle? Has your feeling of jealousy and hatred for my client in any way coloured your evidence against him?’

“Of course I expected her to deny this. During the course of cross-examination you may angle for useful admissions, hints and half truths which can come with the cunning cast of a seemingly innocent question. But the time always comes when you must confront the witness with a clear suggestion, a final formality of assertion and denial, when the subtleties are over. I was surprised, therefore, when the lady from the morgues found it difficult to answer the question in its simplest form. There was a prolonged silence.

“`Has it, Dr. Gorle?’ I pressed her gently for the answer.

“Only Dr. Gorle knew if she was biased. If she’d denied the suggestions hotly no one could have contradicted her. Instead of doing so, she finally came out with,
“’I don’t think so.’ And she said so unconvincingly that I saw the jury’s disapproval. It was the first game to Rumpole, and the witness seemed to have lost her confidence when I moved on to deal with the medical evidence.” (The Second Rumpole Omnibus, John Mortimer, Penguin Books, 142 (1988))

While the accusatory question commonly will produce a denial or at least a hedge like Dr. Gorle’s, every once and a while, the accusatory question produces a different result. A Few Good Men (1992) provides an example of such an exchange and a profitable answer:

Q. (Kaffee) did you order the code red?
A. (Jesep) (quietly) I did the job you sent me to do.
Q. Did you order the code red?
A. You’re goddamn right I did.

For more on the types of cross-examination questions and cross strategies, get a copy of Cross-Examination Handbook.

F. LEE BAILEY’S POINTERS ON CROSS-EXAMINATION

The Importance of Eye Contact, Pacing and the Contradiction Technique
Whatever else you otherwise think of F. Lee Bailey, he was a master of cross-examination. In Cross-Examination Handbook, we use his impeachment of Detective Mark Furhman as an illustration of the Contradiction Technique. Watch the video at the bottom of this page to see Bailey at work in clips of his cross-examinations in the O. J. Simpson case. The following are some of the pointers Bailey made when he lectured on cross and some observations about those tips:

1. Lies in the Eyes: Bailey emphatically taught 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 said 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 Baileys. 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.

2. Pacing: F. Lee Bailey lectured about keeping the cross-examination questions moving along at a quick clip so that the witness doesn’t have time to concoct answers. Excellent tip. As he pointed out, being wedded to notes can slow down the pace. Moving at a fast pace, but not running over a witness, is a tenet that applies particularly well to the cross of the expert who will fill the air if counsel permits it. Nothing is more painful to observe than a lawyer who turns away from the expert on the stand and returns to counsel table, allowing the expert to expound in the vacuum provided by the lawyer who turned a back to a professional witness.

3. Contradiction: Another Bailey tip is that cross-examination is an opportunity to pin down the witness on something where the witness knows that you may have or could get the answer. Bailey stressed the importance of remedial investigation during the course of a trial to find out new information, such as a witness who can contradict the witness whom the lawyer cross-examined. The tactic that Bailey resorted to in examining Furhman about the racial slur was to have Furhman declare that if anyone came to court and testified that he had uttered the slur, the witness would be a liar. This tactic is referred to a “pitting” and it has been held by some courts to be improper because the question asks the witness to express an opinion about the credibility of a witness, which is in the province of the jury to decide. In Cross-Examination Handbook we discuss how to avoid this error and still emphasize the contradiction during cross-examination.

4. O. J. Didn’t Do It: One more point that F. Lee Bailey tried to make when he lectured was that his client, O.J. Simpson didn’t do it. We disagree.

As mentioned, cross-examination notes designed for easy reference and a fuller discussion of the contradiction techniques and applicable law are contained in Cross-Examination Handbook. To purchase or for an examination copy click here.