EXTRACTING THE TRUTH ON CROSS-EXAMINATION – Part 1

 

David Boies and Theodore Olson

BOOK: Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality

In the book Redeeming the Dream: Proposition 8 and the Struggle for Marriage Equality, the authors David Boies and Theodore Olson recount their battle as trial lawyers to bring marriage equality to gay and lesbians. It is a superb insider’s look at the case, and a must read for trial lawyers. In an earlier piece here, David Boies’s methodology for preparing and conducting cross-examination in the case against Proposition 8 was examined. Redeeming the Dream provides even more information about Boies’s approach to cross, which centers on revealing the truth or exposing the witness’s mendacity or misconception, and examples of how it works in practice. Co-counsel and co-author Ted Olson provides even more in the book when he describes Boies’s manner when examining witnesses.

CONCEDE THE TRUTH OR SUFFER THE CONSEQUENCES

As we have explained in Cross-Examination Handbook and in this Cross-Examination blog, the primary goal of cross-examination should be to seize the truth that the witness must concede or suffer the impeachment. In Redeeming the Dream, Olson describes David Boies’s approach in this way: 

“David has said that cross-examination is the true test during a trial. A witness is alone up there on a witness stand. He or she does not know what to expect, has sworn to tell the truth, and must answer question after question. The right to confront adverse witnesses in a criminal case is guaranteed by the Sixth Amendment to the Constitution for a very good reason: It is the acid test of the adversary system, which is at the heart of our system of justice. It is one thing to make assertions; it is quite another to have to defend them on a witness stand.”

The following is one of the examples of David Boies mastery of the concession-seeking strategy. In this instance, he cross-examines a defense expert David Blankenhorn. Olson describes the examination as follows:

“David’s cross-examination continued the theme of his voir dire, emphasizing that Blankenhorn’s direct relied virtually exclusively on work done by other people, and that Blankenhorn was merely reporting on what selected scholars had said. The witness was initially reluctant to further admit his own lack of qualifications:

“Q: You’re just a transmitter of the findings of scholars, correct?

“A: Well, you’re putting words in my mouth now.

“Q: No, sir.

“David then read Blankenhorn what the witness had admitted at his deposition:

“”I’m simply repeating things that they say. I can assure you, I’m not making any of this up on my own. These are not my own conclusions. I’m a transmitter here of findings for these eminent scholars.’

“The court, of course, did not need Blankenhorn to summarize what others had said. That such was the case was bad enough. That he initially resisted admitting it further reduced his credibility.”

Perfect cross. Boies knows the truthful answer that the witness must give, and thus, Boies testifies: “You’re just a transmitter of the findings of scholars, correct?” Blankenhorn must say “yes.” However, Blankenhorn failed to concede the truth of Boies’s testimony and the witness paid the consequences. 

THE PATIENCE, FOCUS AND STYLE OF THE CROSS-EXAMINER

Co-counsel and co-author Olson is effusive in his praise of Boies patience, focus and style as a cross-examiner, describing it in these words:

“. . . (A)mong his most notable skills are patience and focus. He can’t be brushed aside or worn down by an evasive witness. He will calmly persevere, certain of what he is going for and he will remember exactly, literally verbatim, what a witness said in an answer to a prior question an hour before, several hours earlier, or even the previous day. He has an avuncular style- gracious, polite, respectful-but intense and relentless nevertheless.

“He can change the subject suddenly, catch a witness off balance, and yet retun to that subject at a point when the witness has gone on to think about something else. He is adroit, quick, and hypnotic, and  is so disarmingly easygoing, agreeable and charming that it is easy to see, in retrospect, how a witness could slip or slide into a  position from which there is no escape. But if you are that witness, even if you sense it is coming, it is like sinking into quicksand. The harder one struggles, the more powerful the undertow.”

David Boies serves as an excellent role model for any cross-examiner. As the saying goes, “You don’t have to be cross to cross-examine.”

CHATGPT FOR CROSS-EXAMINATION by Keeley Blanchard

 

Here’s something new – preparing a compelling cross with ChatGPT. Recently, I came across LawStory - a newsletter by Keeley Blanchard, Trial Consultant.  Here is her summary of what her training session will feature:

"LAWYERS:

"Learn how to create a creative and compelling cross examination using ChatGPT. The workshop will include:

• step-by-step instructions on how to build your own custom GPT for cross examination

• access to my custom GPT for cross examination

• how to use ChatGPT to brainstorm cross examination topics

• using ChatGPT to generate questions that sound like you and not a machine

• protecting the confidentiality of your case information

• writing a storytelling cross examination in less time

"And a NEW BONUS to the course - step by step video instruction on five different ways to use ChatGPT for your cross examination preparation.

"Materials with step-by-step instructions will be provided to all participants, as well as access to use of the LawStory custom GPT for cross examination. Access to the replay video will also be provided."

You can click here to learn more about an upcoming training session she is holding.

Impeachment with Visuals

 

At Seattle University Law School I teach an online course entitled “Visual Litigation and Today’s Technology". Cross-examination visuals are featured because they can be extremely powerful weapons for cross-examination. They can be used to gain concessions either supporting your case theory or undermining the other side’s case theory. 

Visuals can also be very effective for impeaching a witness. For examples, impeachment visuals can include: 

1. a prior inconsistent statement either in a document or in a visual, such as a video deposition; 

2. a prior conviction—judgment and sentence document; 

3. a visual that establishes that the witness did not have personal knowledge about that which the witness testified; 

4. a visual that proves that the witness’s testimony is improbable; 

5. a visual that reveals the witness’s bias or interest; 

6. and a statement in a learned treatise that conflicts with the witness’s testimony.

“Visual Litigation and Today’s Technology” is a 2-credit course. In this online course, students interested in litigation learn how to integrate technology into their trial visual presentations and case. Just as visuals and technology have become a centerpiece in modern life, they also are the centerpiece in trial. Judges and jurors expect lawyers to use visuals with today’s technology.

The “Visuals” course is taught in the context of mock civil and criminal cases, giving students simulated real-world experiences working with visuals and cutting-edge technology. This experiential course will allow students in role-play assignments to plan the cross-examination of witnesses with visuals. 

This course is comprehensive in its exploration of visual communication strategies and technology, including, among other topics: the ethical and legal boundaries to what visuals may be displayed in trial; evidentiary foundations for visuals (animations, demonstrations, laser scanner images and so on); visual advocacy in both a pretrial venue and a courtroom, from opening statement through closing argument; the creation of visuals; litigation software, such as Sanction, TrialPad, and SmartDraw; and meeting the trial judge's expectations of a trial lawyer's competency when employing technology.

The text for the course is my book Visual Litigation: Visual Communication Strategies and Today’s Technology, which is being published by Full Court Press, the publishing arm of Fastcase. The text offers examples of how visuals were used on cross-examination in notable cases, such as Abraham Lincoln’s cross-examination with a Farmer’s Almanac or the prosecutor’s cross-examination of Richard Hauptmann in the Lindbergh kidnapping/murder case with a ransom note and Hauptmann’s diary.

Cross-Examination Checklist

A checklist can be a survival guide.  Checklists are critical to pretrial and trial work. To illustrate the importance of checklists, Dr. Atul Gawande tells the true story of an October 30, 1935 airplane flight competition that the U.S. Army Air Corps held at Wright Air Field in Dayton Ohio to determine which military-long range bomber to purchase. Boeing’s “flying fortress” was the likely winner. But, after the plane reached three hundred feet, it stalled, turned on its one wing and crashed, killing its pilot and another of its five crew members. The pilot had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was dubbed “too much airplane for one man to fly.”

Nevertheless, a few of the Boeing planes were purchased, and a group of test considered what to do. They decided that the solution was a simple pilot’s checklist. With the checklist in use, pilots flew the B-17 1.8 million miles without an accident. Dr. Gawande in his book The Checklist Manifesto: How to Get Things Right (p. 34) concludes, “Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

Dr. Gawande who headed the World Health Organization’s Safe Surgery Saves Lives program recounts that after the World Health Organization introduced the use of checklists for surgeons, research of nearly 4000 patients showed the following: major complications fell 36 percent; deaths fell 45 percent; infections fell almost 50 percent. Rather than the expected 435 patients expected to develop complications, only 277 did. The checklist spared 150 patients from harm and they spared 27 of those 150 from death. (The Checklist Manifesto, p. 154)

Just as checklists are critical for pilots and doctors, they are necessary for trial lawyers as well. At the end of almost every chapter in both Pretrial Advocacy, 6th Edition and Trial Advocacy 5th Edition is a checklist of matters that are essential to effective pretrial and trial advocacy. The following is an example of a checklist that follows the Closing Argument chapter in Trial Advocacy

This post offers you a Cross-Examination Checklist for impeaching a witness on cross-examination . Kindly let me know what you think of the checklist? Would you like more?

Impeachment Cross-Examination Checklist 

Improbability 

Evidence of improbability is relevant and therefore admissible because it makes what the witness claims less probable. Fed. R. Evid. 401, 402. 


Under Fed. R. Evid. 611(b) and a similar state rule, cross should be limited to “matters affecting the credibility of a witness,” and a cross that reveals that the testimony is improbable goes to the witness’s credibility. 


The reduction-to-the-absurd technique exposes improbability by extending the original premise of the witness to an absurd result. 


The common-sense technique highlights the witness’s assertion and shows that it is unlikely because it defies common sense. 


The contradictory-conduct technique emphasizes the witness’s claim and then contrasts it with the person’s actions under the theme that action speaks louder than words. 


Prior Inconsistent Statements 


Federal Rule of Evidence 613 and state equivalent rules provide that a witness may be examined about prior inconsistent statements. 

    • If the witness admits the prior statement, extrinsic evidence of the statement may be excluded as cumulative under Rule 403. 


     • If the witness does not unequivocally admit the prior statement, extrinsic evidence
of the statement is admissible. 


    • The witness must be given an opportunity to deny or explain the statement. 


    • The prior statement is admissible only for impeachment, not substantive, purposes unless admissible under another rule of evidence. 


 Avoid impeaching with minor inconsistencies, except: 


1. When the cumulative effect of the minor inconsistencies show the witness is not credible; or 


2. When necessary to force an evasive witness to yield concessions. 


Don’t pluck a prior statement out of context because, under the rule of complete- ness as stated in Fed. R. Evid 106, opposing counsel can have the rest of the statement introduced contemporaneously, which may open the door to what would 
otherwise be inadmissible evidence. 


 

Eight essential techniques for impeachment with a prior inconsistent statement are: 

1. Recognize the inconsistency; 


2. Retrieve the prior statement; 


3. Repeat the testimony; 


4. Reinforce the truthful statement with where said, when said, who heard, what said, and whether said; 5. Reference the prior statement; 


6. Resonate with the jury; 


7. Read or display; and 


8. Refute the witness’s denial. 


Utilize the deposition strategy to extract the same answers from the witness that were given at the deposition.
 Apply the eight essential techniques when impeaching with a deposition.


         With video deposition clips the impeachment has a greater impact on the jury 
than with just the transcript. 


Impeach the witness’s trial testimony by revealing that the witness previously 
failed to act or relate the same information when it would have been human nature to do so. 


Contradiction 




Extrinsic evidence contradicting a witness is admissible if it is relevant and substantive, not collateral. 


Having a witness comment on the credibility of another witness—pitting—is improper. 


For more advocacy books go to ronclarkbooks.com

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Learning Cross-examination Techniques from the Lindberg Kidnapping Case

 

My co-author of  Cross-Examination Handbook, Bob Dekle wrote 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 did just that.

The book is somewhat reminiscent of Vincent Bugliosi’s book Outrage: The Five Reasons O. J. Simpson Got Away With Murder. 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.

Excited about Cross-Examination Handbook 2nd Edition

 

Excited about the 2nd Edition of the Cross-Examination Handbook! 📘 This comprehensive guide provides law students and trial lawyers with the essential skills and strategies needed for a persuasive cross-examination. With step-by-step instructions and real case examples, including two criminal and two civil case files, this book offers hands-on practice opportunities for students to enhance their planning and execution abilities. Get ready to master the art of cross-examination with this valuable resource! 

5 star reviews:  "This book really should be called The Cross-Examination Bible. Clark, Dekle and Bailey have done the heavy lifting, amassing the best strategies and techniques for any trial lawyer or student." For more reviews, click here.