Wednesday, July 27, 2011


Cross-Examination Handbook’s Author’s Ted Bundy Book

Our co-author Bob Dekle has just had his book, The Last Murder: The Investigation, Prosecution and Execution of Ted Bundy, published by Praeger. Bob knows first-hand about what took place because he investigated the murder, he along with State’s Attorney Jerry Blair prosecuted Bundy for it and he attended Bundy’s execution.

On February 8, 1978 in Lake City, Florida, 12-year old Kimberly Diane Leach disappeared. Bob was on the task force investigating the disappearance that led to the discovery of Kimberly’s body and he continued in the investigation that resulted in the State’s Attorney’s office charging Bundy. Bob’s account of that investigation, the trial and the execution is suspenseful and spellbinding. Bob is a masterful storyteller. His Southern wit and grace enrich the narrative. But, we already knew these things.

Wednesday, July 13, 2011


A Lesson from the Scriptures

The thirteenth chapter of Daniel (or the Apocryphal book of Susanna) tells the story of an accusation of adultery against a beautiful young woman named Susanna. The story is probably fictitious, having been composed possibly as early as the period of the Exile, but having been added to the book of Daniel around 100 BCE. It does, however, give a good illustration of a cross-examination contradiction technique.
Susanna was married to Joachim, a wealthy man who had a garden adjoining his home. Susanna customarily went into her husband's garden to take daily walks. Two elders who sat at Joachim’s house adjudicating disputes noticed her and lusted after her. They admired her from afar for some time before deciding to take action against her.
One particular day, they adjourned court and pretended to go but secretly hid in the garden. Susanna and her maidens went into the garden to walk, and Susanna sent her maidens out so that she could bathe alone. After the maidens left, the elders accosted Susanna and urged her to have sex with them, threatening to accuse her of adultery if she refused.

Susanna told them that it was better for her to fall into their hands than to submit to their wishes and sin. She began to cry out, as did the elders, and when help came, they accused her of adultery.

The next day Susanna was summoned to appear and answer the charges. Before an assembly of the people, the elders placed their hands on Susanna’s head and testified that they saw her committing adultery with a young man. They further testified that when they saw the two together, the man overpowered them and escaped. Susanna’s prospects looked bleak, and the court had actually sentenced her to death when a young lawyer by the name of Daniel came to her rescue. His first action as defense counsel was to invoke the rule. After the witnesses had been sequestered, he called one of the elders to the witness stand and asked him one single question:

Q. O thou that art grown old in evil days, now are thy sins come out, which thou has committed before in judging unjust judgments, oppressing the innocent, and letting the guilty go free, whereas the Lord saith: “The innocent and the just thou shalt not kill.” Now then if thou sawest her, tell me under what tree thou sawest them conversing together.

It would be difficult to imagine a more poorly worded question. After receiving the elder’s answer, Daniel dismissed him and called the second elder. His sole question of the other elder was:

Q. O thou seed of Chanaan, and not of Juda, beauty hath deceived thee, and lust hath perverted thy heart. Thus did you do to the daughters of Israel, and they for fear conversed with you, but a daughter of Juda would not abide your wickedness. Now, therefore, tell me, under what tree didst thou see them conversing together.

Let’s review Professor Irving Younger’s Ten Commandments of Cross Examination:

I. Be brief.
II. Short questions, plain words.
III. Nothing but leading questions.
IV. Never ask a question to which you don’t already know the answer.
V. Listen to the answer.
VI. Don’t quarrel with the witness.
VII. Never permit the witness to explain.
VIII. Don’t give the witness an opportunity to repeat his story.
IX. Avoid the one question too many.
X. Save the ultimate point for summation.

How many commandments did Daniel’s two questions violate? I count six. The questions were not brief. He asked long questions and used circumlocutions. The questions were open ended. He didn’t know the answers to his question. He quarreled with the witnesses. He gave them an opportunity to repeat their story. Before we disbar Daniel for ineffective assistance of counsel, we need to look at the answers the elders gave. One said he saw Susanna under a mastic tree. The other said she was under a holm tree. Daniel’s technique left something to be desired, but his theory was impeccable. He used the classic cross-examination tactic of creating conflict among the eyewitnesses. Daniel’s cross-examination could not have been more successful. The court discounted the testimony of the elders, found Susanna not guilty, and in accordance with ancient Hebrew law, the elders were executed in her place.

Thursday, July 7, 2011


Ex-Governor’s Evasions Apparent During Cross-Examination
On June 27, 2011, 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 great degree to an effective cross-examination by Assistant United States Attorney Reid Schar.

A goal of a successful cross-examiner is to control the witness. To get the witness to answer the questions asked. To compel the witness to provide the desired answers. To prevent the witness from evading. How successful was Assistant United States Attorney Schar in controlling former Governor Rod Blagojevich during cross-examination?

Prosecutor Schar was faced with a rather unique situation. Witness Blagojevich talked over Schar. He demanded more detailed questions. On occasion, all three of his lawyers objected. So far not that unusual. However, when Blagojevich, a former Cook County Assistant State’s Attorney, didn’t like the question, he objected –“asked and answered.” When the defendant Blagojevich’s lawyer objected, Blagojevich answered the question anyway, ignoring his lawyer. Judge James Zagel also began ignoring his lawyers, and his lawyers asked for rulings despite being ignored by their client. Judge Zagel responded that Blagojevich was acting as his own attorney. Now, that’s chaos.

Schar asked narrow questions. But, these were met with Blagojevich’s rambling answers designed to explain his actions. The prosecutor resorted to the last-ditch technique for compelling a witness to give a direct response; he demanded a “yes” or “no” response to his questions. As he should have expected, the witness responded that the questions could not be answered either “yes” or “no” because it was unclear or called for an explanation. Schar would have been served well by the techniques discussed in Cross-Examination Handbook for dealing with the evasive witness. Those techniques both highlight fact that the witness is being evasive but also put the witness in the position of having to answer the question or suffer the distain of the jurors.

Nevertheless, it was apparent that Blagojevich was determined to have it his way. He was patently evasive. He wanted to avoid the direct questions and explain away his words and conduct. Sometimes when the cross-examiner is unable to control the witness, as Schar could not much of the time, the cross can nevertheless be very effective if it is obvious that the witness is deliberately avoiding the hard questions. The jury was not impressed by the ex-Governor’s evasions and untruthful answers.