Monday, June 27, 2011


Concession-Seeking Cross-Examination of Blagojevich

Former Illinois Governor Rod Blagojevich was convicted of 17 of 20 public corruption counts. The ten wire fraud counts carry maximum penalties of 20 years each. The convictions can be attributed to an effective cross-examination by Assistant United States Attorney Reid Schar.

Assistant United States Attorney Schar had a theme for his cross-examination. He started off his cross-examination with that theme when he asked, “Mr. Blagojevich, you are a convicted liar, correct?” Using the Rule of Primacy, Schar started with a strong point that he wanted the jurors to remember. And, it was his theme and story for cross: former Governor Rod Blagojevich was and is a liar.

Schar’s next line of questions carried forward the theme. He directed the witness’s attention to a press conference right after the conclusion of his first trial. In the lobby of the courthouse, Blagojevich told the press that the FBI refused to let him have a court reported at his meeting with the FBI agents. Schar confronted the witness with the untruth – the FBI offered to have the meeting recorded but Blagojevich refused. After wrangling over the point, the witness claimed to not remember. The point was that he lied again.

The concession-seeking technique, which is covered in Cross-Examination Handbook, was repeatedly used by Schar during the cross of Blagojevich to expose him as a prevaricator while on the stand. The essence of the technique is to ask the witness a question that the witness must concede because the cross-examiner can prove is true. If the witness does not concede, the denial will be proven false. For example, Schar asked the defendant if he had asked Service Employees International Union leader Tom Blanoff if he could get a cabinet spot in the Obama administration in exchange for appointing Valerie Jarrett to the United States Senate. Blagojevich denied it, testifying, “I didn’t say I would do one in exchange for another.” Schar could prove his assertion. He produced a November 2008 transcript in which Blagojevich said, “(Jarrett) now knows that she can be a U.S. Senator if I get Health and Human Services . . . I’m willing to trade the thing I got tightly held, to her for something she doesn’t hold quite as tightly.” To drive the point home, Schar asked the accusatory question, “You’re the one who used the word 'trade.'”

Schar returned again and again to his theme – Blagojevich lied before and the evidence shows he is lying now to you. Blagojevich did not sway the jury with his testimony.

Saturday, June 18, 2011


Or Better Yet – Ten Cross-Examination Guidelines

The late, great Professor Irving Younger (whose CLE videotapes are still gems and worth viewing) gave us the ten commandments of cross-examination. He could talk all day about them, using memorable and humorous illustrations. He threatened to haunt his listeners if they ever violated one his ten commandments. These ten commandments are still viable and important:


1. Be brief.
2. Short questions, plain words.
3. Always ask leading questions.
4. Don’t ask a question, the answer to which you do not know in advance.
5. Listen to the witness’[s] answers.
6. Don’t quarrel with the witness.
7. Don’t allow the witness to repeat direct testimony.
8. Don’t permit the witness to explain answers.
9. Don’t ask the “one question too many.”
10. Save the ultimate point of your cross for summation.

The core reasoning behind these ten commandments is that if you adhere to them, you will control both the witness and the information delivered to the jury. If you lead, you provide the answer. If you know the answer, only the information you want the jury to hear will be heard. Follow these commandments and you are testifying. Break them, and suffer the consequences.

The ten commandments are valuable today, and should be reviewed before any trial. However, rather than being ten commandments, think of them as ten guidelines. There are times you may vary from them without suffering and there are times you should break a commandment.

Don’t Always Ask Leading Questions: If you ask only leading questions, you may appear to be unfairly restricting the witness; not allowing the witness any latitude. You can loosen the reins if the answer couldn’t make any difference. Under certain circumstances discussed in Cross-Examination Handbook, you can even ask that “Why” question. Also, when the witness is fabricating, sometimes you should let go of the reins altogether and let the witness run. When the witness is lying and the examiner can prove the lie, non-leading questions are appropriate. In the Handbook, we go into how to expose a liar.

If the Situation Calls for It, Quarrel with the Witness: The demeanor of the cross-examiner and how questions are formed should vary depending upon the type of witness. While jurors will tend to be protective of a lay witness, who like the jurors is unaccustomed to a courtroom, they will tolerate and even expect that the lawyer will mix it up with a professional expert witness. The cross-examiner must adjust to the situation.

It Isn’t Always Necessary to Know the Answer Before Asking: Francis Wellman in the Art of Cross-Examination put it better when he wrote, “A lawyer should never ask a witness in cross-examination a question unless in the first place the lawyer knows what the answer would be or in the second place didn’t care.”

What’s That Question?: “Avoid one too many questions,” commands Younger. Would any of us ask one too many questions if we knew which question was one too many? What does this commandment mean?

Younger’s ten points remain presumptive guidelines, and may only be ignored when a good reason exists.

Wednesday, June 8, 2011


Art of Cross-Examination Requires Mastering the Art of Listening

A young man stood trial for grave robbery on the uncorroborated testimony of his former girlfriend. She testified she had met him approximately two weeks before Christmas, and had helped him commit the crime about a week after they met. The defendant’s Mom was listed as a last minute defense witness. The prosecutor got to speak to her just before she testified, but managed to learn little about her testimony in the few minutes he had.

Mom testified that on Christmas morning she was busily decorating her tree, when Junior came in and introduced her to his new girlfriend, Violet. “How nice,” she said, “I am decorating our tree with violets, and my son brings home a girlfriend named Violet.” It was a touching scene. If it was true, Junior was not guilty. Violet would not have met Junior until after the commission of the grave robbery.

As the prosecutor listened to Mom’s testimony, two things struck him. First, Christmas day is a little late to be decorating a tree. Second, the trial was being held two weeks before Christmas. Perhaps those two facts could be used to discredit Mom. It would require violating the time-honored rule of cross-examination to never ask a question when you don’t know the answer; but the payoff seemed worth the risk.

Q. You decorated your tree with violets last year?
A. Yes.
Q. I bet you didn’t decorate your tree with violets this year?
A. I sure didn’t.
Q. What did you decorate your tree with?
A. I decorated it with roses and garlands.

Another time-honored rule of cross-examination is “When you strike oil, stop boring.” The prosecutor, believing he had struck oil, discontinued the line of questioning. He would take full advantage of this implausibility in final argument. Christmas is a time steeped in family tradition. Families celebrate this Christmas much as they did the last and much as they will the next. Not only was it unlikely that Mom would decorate a tree on Christmas morning the previous year, we know she had it decorated at least two weeks prior to Christmas the following year. The heartwarming incident with the violets may well have happened, but it happened at least two weeks prior to Christmas. Mom was lying about when it happened to give Junior an alibi. The alibi fell to pieces because the prosecutor intently listened to Mom’s testimony.

Visit Cross-Examination Handbook website here for more Tips on Cross-Examination

Wednesday, June 1, 2011


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.