NEW LINDBERGH KIDNAPPING CASE BOOK AND CROSS-EXAMINATION

Talbot Publishing recently released my co-author Bob Dekle’s book entitled Lindbergh Kidnapping Case: A Critical Analysis of the Trial of Bruno Richard Hauptmann.  Although the Lindbergh kidnapping case has been written about innumerable times, never before has the trial of Bruno Richard Hauptmann been meticulously researched and analyzed. Bob and his co-author Jim Dedman have done just that.            

The book is somewhat reminiscent of Vincent Bugliosi’s book Outrage: The Five Reasons O. J. Simpson Got Away WithMurder. In Outrage, Bugliosi, who had prosecuted Charles Manson, explains how he would have prosecuted Simpson, along with providing examples of what he would have done, such as what he would have said in closing argument.

Lindbergh Kidnapping Case is instructive on how to conduct a cross-examination. For instance, one of the prosecution witnesses at the Hauptman trial was John Conlon, an interloper who was involved in the negotiations over the ransom. This is how the book assesses defense counsel’s strategy in cross-examining Conlon:

Reilly adopted the wrong strategy for the examination of Condon. Instead of attacking the implausibility of Condon’s testimony, he attacked Condon personally. What Reilly succeeded in doing by aggressive verbal sparring with Condon was to highlight Condon’s wit in repartee, which in turn masked the implausibility of his testimony. . .

Rather than merely criticizing the strategy, the book recommends effective techniques that could be utilized as follows:

Reilly should have attacked the plausibility of the testimony, not the personality of the testifier. Snide remarks and personal assaults proved counterproductive and resulted in this portion of the cross-examination being diverted down a rabbit trail of arguing over the meaning of words. He would have done better by asking a line of tight and controlling single-fact questions. Such a line of questioning might have gone thus:

Q: You attended a lineup at the Greenwich Street police station in New York?

A: Yes.

Reilly should expect Condon to append a verbal barrage to his affirmation, but he should not take the bait. Rather he must relentlessly pursue the non-identification.

Q: The police asked you if anyone appearing in the lineup was the John whom you met in the cemetery?

A: Yes.

Q: Bruno Richard Hauptmann was in the lineup?

A: Yes.

Q: At that time you did not identify Mr. Hauptmann as John?

A: I identified Mr. Hauptmann at that time but I made no declaration of identification.

The Lindbergh Kidnapping Case is the perfect read for anyone interested in the Lindbergh case, an insightful telling of the story of the Hauptman trial, and a superb tutorial on trial strategies and techniques with illustrations from this famous case.

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.