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.

A COMMON AND BIG MISTAKE ON CROSS-EXAMINATION: Don’t make this cross-examination mistake.

 

It is probably the most common mistake and a big one - the cross-examiner has the witness repeat their direct examination. Question: “On direct examination you told this jury that . . .” 

The error is grievous. It violates the 7th commandment of the famous Professor Irving Younger’s 10 Commandment of Cross-Examination: “Don't allow the witness to repeat his direct testimony.” Younger’s commandment directs the cross-examiner  to focus on accomplishing the goals of cross-examination which are to gain concessions that either bolster the cross-examiner’s case theory or undermine the opposing party’s case theory. If the cross-examiner instead allows or causes the witness to repeat the direct examination which contains things favorable to the opposing party, the examiner is defeating the purposes of cross. Worse than that, the examiner is repeating the information which the jury has already heard and that repetition will make it stick in the jurors’ minds. 

The Cause

Why would a cross-examiner ever have the witness repeat their direct examination? Why is it such a common mistake? The usual cause is poor preparation. Rather than having a well planned cross-examination, the cross-examiner mistakenly believes that it is possible to conduct a successful unscripted cross. Counsel has been taking notes during the direct examination and works off them to conduct the cross-examination.  Consequently, the examiner is reacting to what the witness testified to on direct, and thus repeats the direct examination. And, the examiner often does so in the order in which opposing counsel questioned the witness. 

The Cure

The cure that will prevent the cross-examiner from repeating the direct is to remember the core idea of cross-examination: Cross-examination is the cross-examiner’s opportunity to testify. Rarely if ever should cross-examination be done on the fly. It must be scripted to be effective. The examiner should know what the witness will testify to and that the examination will produce the desired responses.

The Two Exceptions

There are two exceptions to the rule that the cross should never repeat the direct. First, in those situations where the witness on direct testifies to information damaging to the other side’s case (such as when the other side it trying to pull the sting that is anticipated to be brought out on cross) or helpful to the cross-examiner’s case, then naturally it may be covered on cross. Second, in the odd case where the witness has been coached and memorized their testimony, the cross-examiner may want the witness to repeat direct. An example happened during the famous Triangle Shirtwaist Factory Fire trial when defense counsel’s cross revealed that a witness had been coached to give a memorized story by having the witness repeatedly tell her story in identical words during cross.

Click here for the Cross-Examination Handbook.

New Free Book devoted to Successful Trial Skills and Strategies

 

In case you missed the previous offer of this NEW FREE BOOK about SUCCESSFUL TRIAL SKILLS AND STRATEGIES, here is another opportunity to get it. Just CLICK HERE & CONTINUE TO CLICK THROUGH and the book will be emailed to you. You can not only read about successful trial skills and strategies but also watch them in video clips. Cross-Examination skills and strategies are laid out.

WITNESS PREPARATION FOR CROSS-EXAMINATION

 

Even when opposing counsel is equipped with the skills and strategies covered in Cross-Examination Handbook, they will not have enough to do damage to the credibility of a tough witness. A tough witness is one who is armed with the truth and has been thoroughly prepared to testify at trial. 

What is entailed in the thorough preparation of a witness for cross-examination? The following is an indispensable checklist along with notes for thorough and effective witness preparation that you can use when you prepare your witness. And, when you come up against the tough witness, you know that opposing counsel has relied upon a similar checklist. 

 Preparation for the courthouse and courtroom:

– Courthouse – where is it? Note: It is not unheard of that a witness will go to the wrong courthouse or courtroom. Tell your witness not only where the courthouse is but also where the courtroom is located.

– Courtroom Layout. Notes: Much of your witness preparation is designed to familiarize the witness with everything. Most people have a fear of the unknown, and this preparation can alleviate some of that fear. Either show the witness a diagram of the courtroom or take the witness to the courtroom. If you have a child witness, definitely take the child to the courtroom, have the child sit in the witness chair and otherwise learn about the courtroom. Tell the witness who the courtroom players are and where they will be positioned in the courtroom, such as where the clerk, bailiff and court reporter are situated (except for the defendant in a criminal case which could result in a mistrial).

– Don’ts: Notes: Tell the witness not to discuss case in or around the courthouse. because jurors may be on the street around the courthouse or in the halls or on the elevator. Instruct the witness to not enter the courtroom until summoned because witnesses are excluded. This does not apply to the client(s) and to the detective in a criminal case.

 Preparation on the witness’s role and substance:

– Witness’s Role. Notes: Tell your witness to tell the truth. If it hurts, tell the truth. Tell your witness that the only instruction that you have given them regarding what to say is—tell the truth. Ask the witness, “What damaging information is out there?” You need to know because only if you know what it is, can you deal with it.

– Review Prior Witness Statements. Notes: Have the witness review all prior witness statements that the witness has given. Tell the witness before the witness goes over the statement that the witness should not feel wed to what is in the statement. If there is something erroneous, the witness should let you know.

– Cover the Witness’s Story. Notes: Go over the witness’s story in detail and probe for any weaknesses. If there is a weakness, have the witness explain. Witnesses are commonly not good at estimating things like time and distance. Go over this. For example, if the witness says that the two individuals were five feet apart, have the witness show you how far they were apart using objects in the room.

– Practice Direct Examination. Notes: Walk through it. Practice with exhibits and demonstrations

– Practice Cross-Examination. Notes: Explain to the witness that you are going to step into opposing counsel’s shoes and conduct a cross-examination (you may have another colleague do it). Ask tough questions that you expect from the other side. Tell your witness not to worry about cross-examination because the witness is telling the truth.

 Preparing the Witness on How to Testify:

– MRPC 3.4(b) prohibits coaching to testify falsify. Notes: However, you can help the witness be a good communicator. Help the witness be Confident, Clear and Credible. 

– 1.  Have a Good Appearance. Notes: Tell the witness to dress appropriately for court. When sitting in the witness chair, the witness should have good posture—sit up straight.  Speak clearly, and here you can explain the role of the court reporter and the need to speak clearly and not to rapidly. The witness should avoid distracting habits, such as chewing gum or fiddling with a pen.

– 2.  Courtroom Rules. Notes: Tell the witness that if there is an objection, stop talking and listen for directions regarding what is to be done next. Tell the witness that if they can’t remember something, say so. And, explain how you may seek to refresh recollection if the witness can’t recall and the procedure for refreshing recollection.

– 3.  Communication on Direct. Notes: Tell your witness that only the jury counts, and that the witness should talk to them. If court procedures permit, explain that you will stand at the end of the jury box so that the witness will be looking down the jury box towards you. Tell the witness that this courtroom positioning is intended to remind the witness both to speak up so the furthest away jurors can hear and to look the jurors in the eyes and talk to them as though they were having coffee together. Tell the witness that the jurors have no axe to grind with the witness and they are just trying to learn the truth, which the witness will deliver.

– 4.  Communication on Cross. Notes: Discuss keeping composure on cross. You can explain that the witness should never get cute or argue with the questioner. To assist the witness with that endeavor, you can explain that while the witness will not be able to address the jury after testifying, counsel may and in doing so, counsel can comment on the witness’s lack of composure and how the witness’s demeanor showed the witness was not credible. Explain that contrary to direct examination when the witness should look at the jurors, during cross, the witness should look directly at counsel. Instruct the witness listen carefully to the question that is asked and answer it directly. Don’t volunteer information. 

FREE TRIAL ADVOCACY BOOK with Cross-Examination Discussed and Demonstrated

 

Get your FREE copy of TRIAL ADVOCACY GOES TO THE MOVIES BOOK - Click here.

What do My Cousin Vinny and Atticus Finch have in common? A lot more than you might think. While Atticus Finch’s closing argument in To Kill a Mockingbird continues to inspire viewers to attend law school, the cross-examinations in My Cousin Vinny—while hilariously funny—offers an equally compelling example of excellent trial advocacy. 

With the aid of movie clips that are just a click away, this book explores advocacy from pretrial preparation through closing argument.

Inside this concise yet comprehensible Book, which is includes movie clip gems that you can watch, you’ll learn: 

• A methodology for writing the script for your trial performances from opening statement through closing argument

• How to effectively engage and deliver a message to an audience—the jury

• Trial advocacy strategies, techniques, and skills

• Whom to cast as witnesses to be called at trial 

• How to be successful in trial by watching movies based on real trials

• The ethical and legal boundaries that trial lawyers should not cross

• How to impart your message to a jury with storytelling and visuals

• The concession-seeking cross-examination methodology 

• And, so much more

Get your copy of the book with accompanying movie demonstrations of successful trial advocacy today.

HARVEY WEINSTEIN’S AND DONALD TRUMP’S PRIOR BAD ACTS

 

Previous posts here discussed the Sandoval notice of Trump’s prior bad acts and trial Judge Merchan’s rulings concerning what could and could not be used during cross-examination of Donald Trump in his “hush money” trial.  

Following Judge Merchan’s rulings on April 24, 2024, concerning what could and could not be inquired into on cross-examination of Trump, the State of New York Court of Appeals issued its decision in the Harvey Weinstein case. The Court overturned Weinstein’s conviction based upon the trial court’s error in holding that Weinstein’s alleged prior bad acts, which had been identified in a Sandoval notice, would be admissible during the cross of Weinstein. The New York Court of appeals held:

"Under our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality (see People v Molineux, 168 NY 264 [1901]). Nor may the prosecution use “prior convictions or proof of the prior commission of specific, criminal, vicious or immoral acts” other than to impeach the accused’s credibility (People v Sandoval, 34 NY2d 371, 374 [1974]). It is our solemn duty to diligently guard these rights regardless of the crime charged, the reputation of the accused, or the pressure to convict (see Boyd v United States, 116 US 616, 635 [1886] [“It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon”]).

"Defendant was convicted by a jury for various sexual crimes against three named complainants and, on appeal, claims that he was judged, not on the conduct for which he was indicted, but on irrelevant, prejudicial, and untested allegations of prior bad acts. We conclude that the trial court erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material non-propensity purpose. The court compounded that error when it ruled that defendant, who had no criminal history, could be cross examined about those allegations as well as numerous allegations of misconduct that portrayed defendant in a highly prejudicial light. The synergistic effect of these errors was not harmless. The only evidence against defendant was the complainants’ testimony, and the result of the court’s rulings, on the one hand, was to bolster their credibility and diminish defendant’s character before the jury. On the other hand, the threat of a cross-examination highlighting these untested allegations undermined defendant’s right to testify. The remedy for these egregious errors is a new trial. (emphasis added)."

Click here for the appellate court’s full decision.

In light of the Weinstein appellate decision, will Judge Merchan modify his rulings, perhaps limiting the prior acts to those showing Trump’s lack of credibility because they constituted lies, such as the defamation of E. Jean Carroll? Watch Weinstein's criminal defense attorney discuss this question by clicking here.