LOOKING AHEAD: CONFRONTATION CLAUSE – WILLIAMS V. ILLINOIS

Prediction of Another in the Line of Supreme Court Confrontation Clause Decisions

On December 6, 2011, the United States Supreme Court heard another confrontation clause case: Williams v. Illinois. In Williams, a rape case, the appellant contends that he should have had the right to cross-examine the laboratory analyst who generated the DNA profile from evidence taken from the crime scene. Illinois State Police Lab sent the evidence to a private lab in Maryland. The appellate prosecutor for Illinois argues that the defense had the opportunity to question a different analyst who compared the profile to the defendant’s and that this is a common practice and that the report was not introduced into evidence. Federal Rule of Evidence 703 and state rules of evidence allow experts to base their opinions on evidence that is normally relied upon by experts yet not admitted. If the relied upon report is testimonial in nature - intended for future prosecution in the case, shouldn't the defendant be given an opportunity to confront? The court might again offer the constitutional notice-and-demand statute as a balm as it did in Mendez-Dias. An it's-too-expensive-to-call-the-analysts argument isn't likely to cut it with the Court.

In recent years, the Supreme Court has decided a string of Confrontation Clause cases roughly two years apart with historian Scalia often guiding the way, as follows:

Crawford v. Washington, 541 U.S. 36 (2004): testimonial statements of a person unavailable for trial are inadmissible because they violate the Sixth Amendment Confrontation Clause. The decision dealt a blow to domestic violence prosecutions.

Davis v. Washington, 547 U.S. 813 (2006): 9-1-1 call was nontestimonial and therefore admissible hearsay not in violation of the Confrontation Clause. The court along the way referred to the forfeiture by wrongdoing exception to the hearsay rule – a hope for prosecutors.

Giles v. California, 554 U.S. 353 (2008): to fall under the forfeiture for wrongdoing exception it is insufficient that the defendant just intended to kill the person who made the statement, the defendant must be proven to have intended to make the person unavailable for trial.

Melendez-Diaz v. Massachusetts 129 S.Ct. 2527 (2009): Sixth Amendment violated when the court admitted the prosecutor offered chemical drug test report and did not call the analyst.

Bullcoming v. New Mexico 131 S.Ct. 2705 (2011): confrontation clause held violated when lab analyst testified to being familiar with the testing done on the defendant’s blood and lab testing procedures, but the analyst who did the testing did not testify. .

For an interesting New York Times Op-Ed piece see this article by Jeffrey Fisher.

Prediction: Given the Court’s track record and split, the Court will find a Confrontation Clause violation.

TRIANGLE FIRE VERDICT’S 100 YEAR ANNIVERSARY

Acquittal of Owners on December 27, 1911

A hundred years ago today after four ballots, the jury acquitted Max Blanck and Isaac Harris, owners of the Triangle Waist Company, of manslaughter. To convict the owners of manslaughter the jury would have had to find that the owners knew the door to the ninth-floor door was locked at the time of the fire at their garment factory in Lower Manhattan. As consequence of the door being locked, the women garment workers were unable to escape the fire.

146 garment workers died, either from the fire itself or in jumping from the windows. The funeral procession was attended by 350,000 and was described as one of the “most impressive spectacles of sorrow New York has ever known.”

The last page of this month’s ABA Journal commemorates the acquittal and notes, “(t)he trial was partly shaped by famed defense attorney Max Steuer, who shifted the blame to the victims, arguing that their panicked attempts to flee had sealed their fate.” The Journal does not mention Steuer’s skillful cross-examination of the prosecution’s witness, which is covered in Cross-Examination Handbook.

The public was outraged by the Triangle fire catastrophe. The disaster caused the labor movement to grow and led to work place safety standards, the minimum wage and the New Deal. Thirty six statutes were passed setting factory safety standards.

BEST WAY TO LEARN CROSS-EXAMINATION IN CIVIL CASES

Learning Cross-Examination Techniques by Experience

The best way to learn how to conduct winning cross-examinations in civil cases is through experience. Cross-Examination Handbook offers opportunities for cross-examinations in two civil cases that can be used in either professional development workshops for practicing lawyers or law school classes.

Case Files, Actors’ Guide and Teacher’s Manual

Cross-Examination Handbook comes with all the materials necessary for role-play performance exercises for cross-examination strategies and skills, including: case files; an Actors’ Guide with instructions for the witnesses, and a Teacher’s Manual (100 pages) covering how to conduct the cross-examination exercises as well as a schedule for professional development workshops and a syllabus for law school classes. The two civil cases are Rufus T. Jones v. Brahmin Preparatory School and Terry O’Brien v. Jamner County. Both fact patterns are based on actual cases.

Terry O’Brien v. Jamner County

The O’Brien case involves a single car rollover accident (pictured left) which resulted in the death of the driver, 32-year-old Terry O’Brien. O’Brien was driving an eight year old Suzuki SUV southbound on Pioneer Road when the vehicle had drifted off the west edge of new asphalt that had recently been applied to the surface of the road. There was neither channeling nor traffic control signs or devices on Pioneer Road in the construction area.

Rufus T. Jones v. Brahmin Preparatory School

The Jones case involves Rufus T. Jones, an African American teacher, who sues Brahmin Preparatory School, an elite private high school, claiming racially disparate treatment and retaliation against him for engaging in the protected activity of opposing what he believe to be incidents showing discrimination against faculty of color.

The Assignments

The class or CLE workshop assignments for cross-examination correspond to chapters of Cross-Examination Handbook and provide practical experience in the areas covered by the chapters. For example, chapter 6 covers how to impeach a witness with a deposition and assignments and Case File materials are provided so that law students and practicing lawyers can perform an impeachment with a deposition. The versatility of the materials allows the instructor to select as many or as few of the assignments for the students/attorneys to perform as the instructor wishes to cover.

Each assignment comes with suggested reading, which the instructor may assign. For instance, the instructor may assign readings in Cross-Examination Handbook to which the assignment is cross referenced with suggested selected readings for each assignment.

For more information about the two civil cases and Cross-Examination Handbook, visit the book’s website here. Purchase Cross-Examination Handbook by clicking on image of the book in the right column.

LAUNCHED NEW SET OF PRETRIAL AND TRIAL BOOKS AND DVDS INCLUDING CROSS-EXAMINATION HANDBOOK

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The Books

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The Videos

The package includes two DVDs. These videos show skilled, experienced lawyers at work. Going beyond being able to read about how to think and act as a litigator, the demonstration videos show how to do things well. The Pretrial DVD shows: how to take a deposition, how to use a deposition in trial, a crime scene tour, a settlement documentary and software slideshows for mediation. The Trial demonstration DVD shows veteran trial attorneys doing everything from jury selection through closing argument as well commentaries by those attorneys and true crime writer Ann Rule.

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• Both criminal and civil cases
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LESSONS FROM MICHAEL JACKSON’S DOCTOR TRIAL

Build Your Case on Cross-Examination

In the involuntary manslaughter trial of Conrad Murray, Michael Jackson’s doctor, the defense called Dr. Paul White to testify, among other things, that Jackson self medicated with his own stash of propofol thereby causing his own death. Prosecutor David Walgren (on right in picture) relied on concession-seeking cross-examination to build his case against Dr. Conrad. Walgren asked questions to which he knew the defense expert had to answer in a manner favorable to the prosecution. They included:

"Do you agree that there are instances where Dr Murray deviated from the standards of care in his treatment of Michael Jackson on June 25, 2009?"

"And would you agree that there were instances where Dr Murray deviated from the standards of care in the preceding two months of treatment, as relayed by Dr Murray in his statement to police?"

“Have you ever used propofol in someone’s bedroom?”

“Have you ever heard of anyone doing that prior to this case?”

You can watch segments of the cross of Dr. White on the video strip at the end of this page.

Cross-Examination Handbook covers this concession-seeking cross-examination technique, including how to identify the content of this type of cross – what the witness must concede - and how to construct and conduct a smooth flowing and effective cross to elicit those concessions.

4TH COMMANDMENT OF CROSS-EXAMINATION

Be Prepared. Do Not Ask a Question to Which You Do Not Know the Answer.

THE 4TH COMMANDMENT

Irving Younger promulgated the 10 Commandments of cross-examination, and those commandments have guided cross-examiners for decades. But, do they make sense? Should they be Commandments or merely Guidelines?

Let’s examine the 4th Commandment: Be prepared. Do not ask a question to which you do not know the answer. Younger cautions that the lawyer who asks a question to which the lawyer doesn’t know the answer will get an answer that damages the examiner’s case. Younger illustrated another Commandment – number 9 requiring counsel to limit questioning (don’t ask that one question too many) - with a story that equally illustrates the 4th Commandment. It involved an assault. The prosecutor called an eyewitness to testify that the defendant bit off the victim’s nose. On cross, defense counsel got the witness to concede that he never saw the nose being bitten off. Not satisfied, the lawyer asked one question too many and one to which the defense lawyer did not know the answer:

Q: If you never saw my client bite the nose off the victim, then why are you here today claiming that my client committed mayhem?
A: I saw him spit it out.

Of course this story is just a story, and a funny one. What prosecutor would not cover the nose-spitting business out of a direct examination? What defense counsel would not have interviewed the witness? How could this nose-spitting have not been known to both sides?

EXCEPTIONS TO THE RULE

The concept of never asking a question on cross unless you knew the answer did not originate with Irving Younger. Francis Wellman in his seminal work on cross-examination, The Art of Cross-Examination, stated the rule and expressed it better a long time before Younger. On page 23 of the 1936 edition of Wellman’s book, which was first published in 1903, it states:

“David Graham, a prudent and successful cross-examiner, once said, perhaps more in jest than anything else, ‘A lawyer should never ask a witness on cross-examination a question unless in the first place he knew what the answer would be, or in the second place, he didn’t care.’ This is somewhat on the principle of the lawyer who claimed that the result of most trials depended upon which side perpetrated the greater blunders in cross-examination. Certainly no lawyer should ask a critical question unless he is reasonably sure of the answer.”

Noncritical Question

Wellman’s is certainly a better, more nuanced guideline. Certainly, when the question is on an inconsequential subject to which no harmful answer can be given, it is fine to ask the question.

Obviously True Answer

A cross-examiner can ask critical questions even though the questioner does not know what the answer will be. Those critical questions that may be safely asked are ones to which both the cross-examiner and the jury know what the answers should be. If there is only one correct answer and that answer is obvious to the jury, what difference does it make what answer the witness gives? If the witness does not provide the expected answer, the witness loses credibility.

The core concept underpinning this approach is that the cross-examiner is testifying (not literally of course), making arguments along lines that the jury will agree to because they are part of common experience. The examiner uses the witness as a foil, who will give the desired answer or be discredited.

F. Lee Bailey in the O. J. Simpson murder trial cross-examined a Sergeant who had been to the murder scene using this approach. Here is part of the exchange – more is on the video at the end of this page:

Q. (Bailey) Wasn’t the evidence staring you in the face that somebody had to go out the back (gate)?
A. (L.A. Police Sergeant) Like I said it was outside.
Q. I understand. Didn’t you tell us in your testimony that you saw the tracks on Bundy (street adjacent to the front of the house)?
A. On Bundy?
Q. Yes.
A. Dog tracks.
Q. Well, that’s right.
A. Yes.
Q. So if the killer wasn’t a dog, somebody had to go out the back gate, didn’t they?
A. They could have gone any direction.
Q. Without leaving any footprints after being in all that blood, Sergeant?
A. Yes, it’s possible. Yes.
Q. How is that possible? Please tell me.
A. Just leave and cover their tracks somehow.
Q. Leave and cover their tracks. Could you explain to us all how that could be accomplished by a killer with bloody feet?
A. If they didn’t get blood on their feet, they wouldn’t leave tracks.
Q. Having been at the scene, can you imagine that the perpetrator or perpetrators didn’t get blood on their feet? Can you imagine that?
A. There was a lot of blood there.
Q. No. Can you imagine that these murders were accomplished without getting any blood on the feet of the perpetrator?
A. I think anything is possible.
Q. Anything is possible. You think they may have been fast enough on their feet to avoid blood while accomplishing the carnage that we’ve been looking at on the screen, is that right?
A. I can’t accurately testify to that. I’m sorry.

Bailey was arguing that the killer(s) left by the back gate and used the Sergeant as his conduit. He clearly didn’t care what the Sergeant’s answers were because he was making his argument to the jury. The more the Sergeant sought to evade the obvious, the more he discredited himself.

Accusatory Question

The accusatory question is the epitome of the obviously-true-answer line of attack. The accusatory question contains the ultimate conclusion, the one that counsel will argue to the jury. It confronts the witness with the cross-examiner’s position. When the accusatory question is asked, the cross-examiner knows the likely answer; the witness usually is going to deny the allegation. Nevertheless, counsel asks it. The accusatory question is often avoided because it is likely to produce nothing but a denial.

On the other hand, if counsel has laid the foundation – established the fact(s) that the witness will deny and counsel believes that the jury has been convinced of the fact(s), counsel can ask the question, confident in knowing that the witness’s answer will not have any credibility. Also, asking the question highlights the examiner’s point.

Horace Rumpole, the fictional English barrister and creation of the recently passed away actual barrister and author John Mortimer, asked the accusatory question, mused over both why he asked it and the witness’s response in “Rumpole and the Expert Witness” as follows:

“And some things you don’t forgive, Dr. Gorle? Has your feeling of jealousy and hatred for my client in any way coloured your evidence against him?’

“Of course I expected her to deny this. During the course of cross-examination you may angle for useful admissions, hints and half truths which can come with the cunning cast of a seemingly innocent question. But the time always comes when you must confront the witness with a clear suggestion, a final formality of assertion and denial, when the subtleties are over. I was surprised, therefore, when the lady from the morgues found it difficult to answer the question in its simplest form. There was a prolonged silence.

“`Has it, Dr. Gorle?’ I pressed her gently for the answer.

“Only Dr. Gorle knew if she was biased. If she’d denied the suggestions hotly no one could have contradicted her. Instead of doing so, she finally came out with,
“’I don’t think so.’ And she said so unconvincingly that I saw the jury’s disapproval. It was the first game to Rumpole, and the witness seemed to have lost her confidence when I moved on to deal with the medical evidence.” (The Second Rumpole Omnibus, John Mortimer, Penguin Books, 142 (1988))

While the accusatory question commonly will produce a denial or at least a hedge like Dr. Gorle’s, every once and a while, the accusatory question produces a different result. A Few Good Men (1992) provides an example of such an exchange and a profitable answer:

Q. (Kaffee) did you order the code red?
A. (Jesep) (quietly) I did the job you sent me to do.
Q. Did you order the code red?
A. You’re goddamn right I did.

For more on the types of cross-examination questions and cross strategies, get a copy of Cross-Examination Handbook.

PART 2 - WHAT TO DO OR NOT DO ON CROSS-EXAMINATION?

Probably the Prosecutor's Best Cross-Examination

In our last post, we examined the trial of a belatedly truthful young murder defendant who decided to confess on the witness stand. We reproduced his testimony and posed two questions: What did the prosecutor do in this situation? What would you do in the same situation? Here is what happened in the trial:

A: I believe that she is the one that killed the man because -- f*** it, I reckon I’ll just cop out. I have done it, killed him deader than hell. I ain’t going to set up here, I am under oath and I ain’t going to tell no f***ing lies. I will ask the Court to excuse my language. I am the one that done it. They [the one’s he had been accusing] didn’t have a damn thing to do with it. It was premeditated and I intended to kill him. I would have killed him if he hadn’t had no money [to defense counsel] and I know I never told you about it, but I killed him.

BY THE COURT: Do you want to come down, Mr. Edwards?
BY THE DEFENDANT: Sir?
BY THE COURT: Do you want to come down and have your seat?
BY THE DEFENDANT: Yes, sir.
BY DEFENSE COUNSEL: I rest.
BY THE PROSECUTOR: No questions.

That was probably the best cross the prosecutor performed during the entire trial. There’s an old saying that you should never attempt to murder a witness who is committing suicide, and this situation exemplifies that adage perfectly. You seldom confront a situation where cross-examination won’t elicit further information helpful to your side, but when you do you should follow the example of the prosecutor in this case.

WHAT TO DO OR NOT DO ON CROSS-EXAMINATION? - PART 1

Now What?

A long time ago in a courtroom in the Florida panhandle, a young man stood trial for Murder in the First Degree. His lawyer, one of the pre-eminent defense attorneys in the area, had done an excellent job of chipping away at the State’s case, casting doubt on the evidence and suggesting that another had actually committed the murder. When the State rested, it was time to call the Defendant to the stand. Any experienced defense attorney would wholeheartedly agree with what Horace Rumpole, the fictional Old Bailey barrister, once said about testifying defendants: “Calling your own client is the worst part of a trial. You can’t attack him, or lead him, or do anything but stand with your palms sweating and hope to God the old nitwit tells the right story.” (John Mortimer, The Second Rumpole Omnibus, p. 13). To begin with, the direct examination went smoothly as the lawyer introduced his client to the jury and walked the young man through enough background information to make the jury decide that the Defendant wasn’t that bad an egg after all.

The questioning then turned to the events surrounding the killing, and the Defendant began to recount his version of the incident. It was at this time that the Defendant’s testimony took an unexpectedly nasty turn.

A: I believe that she is the one that killed the man because -- f*** it, I reckon I’ll just cop out. I have done it, killed him deader than hell. I ain’t going to set up here, I am under oath and I ain’t going to tell no f***ing lies. I will ask the Court to excuse my language. I am the one that done it. They [the one’s he had been accusing] didn’t have a damn thing to do with it. It was premeditated and I intended to kill him. I would have killed him if he hadn’t had no money [to defense counsel] and I know I never told you about it, but I killed him.

At this point the defense attorney rested his case without tendering the defendant for cross examination. The State, however, had the right to question the defendant. How did the prosecutor react to this situation? What would you do in the same situation? In our next post, we will follow the transcript through to its conclusion.

KNOWING WHEN TO BREAK THE RULES OF CROSS-EXAMINATION

A Shot-in-the-Dark

You could call it a locked-room murder but not a locked-room mystery. The murderers were locked in the room with their victim. Two inmates contrived to get themselves locked into the same cell with another inmate and proceeded to strangle him with a garrote. When a correctional officer came down the row of cells checking to see if the inmates were properly locked up, she looked into the cell and found the killers with their victim.

The elder killer, whom we will call Enoch Drebber, looked like a hardened violent career criminal, and in this case you could judge a book by looking at the cover. We shall call the younger killer Dorian Gray because he looked to be little more than a baby-faced teenager. Drebber, who stood trial first and received the death penalty, was brought from Death Row to testify on behalf of his friend. Upon taking the witness stand, Drebber looked like the personification of evil. He did little to dispel this first impression as he testified that he and he alone had killed the victim, and that if Gray had tried to stop him, he would have killed Gray also. Drebber, who made a convincing witness, suffered little damage to his credibility as he weathered a vigorous cross-examination.

When Drebber’s testimony concluded, the judge called for a recess, and a spectator from the courtroom approached the prosecutor. Gray had been giving hand signals to Drebber while Drebber testified. Several other spectators in the courtroom confirmed that they also saw the signaling. The prosecutor put the most credible of these spectators onto the witness stand to describe what she had seen, intending to argue that Gray was telling Drebber what to say. The defense then called Gray to the stand to refute that argument. Gray testified that both he and Drebber knew American sign language, and that he had communicated with Drebber in that sign language. Gray stated that he did not tell Drebber what to say, he merely called Drebber a liar. The judge ruled that the prosecutor could cross-examine Gray about the hand signals and nothing else.

The prosecutor took his place at the lectern and began to violate almost all of Irving Younger’s Ten Commandments of Cross-Examination. See if you can identify the Commandments he broke:

Q: What was Drebber testifying about when you called him a liar?
A: Our roles in the killing.
Q: Your roles in the what?
A: Our roles in the killing.
Q: So, in other words, you were calling him a liar when he said he acted alone in the killing?
A: Yes.
By Defense Counsel: Your honor, I object and ask for a sidebar on my objection.

The judge ruled that the prosecutor could ask no more questions, but he also refused to strike the questions already asked, ruling that the jury could draw whatever inferences they felt proper from the line of questioning.

Based on his limited cross of Gray, the prosecutor constructed a logical syllogism which he argued to the jury:
Someone helped Drebber kill the victim.
Gray was the only person who could have helped Drebber.
Gray helped Drebber kill the victim.
The prosecutor argued that Gray had, in a roundabout way, confessed to the crime. The jury agreed. They gave no weight to Drebber's testimony and returned with a swift verdict of guilty as charged.

You should not mechanically apply the rules governing effective cross-examination. When the circumstances warrant it, you can and should break the rules. You should, however, have a clear reason for doing so, and the payoff must justify the risk. The prosecutor took a shot in the dark when he asked the dreaded “question he didn’t know the answer to,” and the payoff certainly justified the risk

THE CASE AGAINST CHRIST - NEW BOOK BY BOB DEKLE

A Critique of the Prosecution of Jesus

It’s an understatement to say that our co-author Bob Dekle is a prolific writer. Within the last couple years, he has co-authored Cross-Examination Handbook, authored his Bundy book, and now his book on the prosecution of Jesus has just been published and is available on Amazon.com. The following is what his publisher, Cambridge Scholars Publishing, says about the book:

“Some two thousand years ago, in a small province of the Roman Empire, an obscure Roman governor ordered the execution of a peasant leader. It went virtually unnoticed at the time. No official report of the event has survived, and we would have no memory at all of it except for the efforts of a handful of followers of the condemned man. Those followers who kept that memory alive changed the course of history, and the results of their efforts continue to reverberate to this day.

“Conventional interpretation says that the execution of Jesus of Nazareth came on the heels of a series illegal trials before a number of different tribunals, and at the culmination of that series of trials a moral coward by the name of Pontius Pilate ordered Jesus’ execution despite being satisfied that he was innocent. Revisionist interpretation says that there was no trial at all, that Pilate simply executed Jesus because he was a nuisance, and that Jesus’ followers invented the story of his execution as a means of shifting the blame from the Roman government to a group of people whom they despised – the Jews.

“Are the Gospels good history or bad propaganda? Does a fair reading of the Gospel accounts support either the conventional or the revisionist interpretation of the trial of Jesus? Who, if anyone, should shoulder the blame for the crucifixion of Jesus? The Case against Christ seeks to answer these questions by treating the matter as a forensic death investigation and answering the questions as they might be answered by a prosecutor attempting to determine who should be held criminally responsible for the death of Jesus.”

CROSS-EXAMINATION CONTRADICTION TECHNIQUE - SHOW THE STORY

Bailey Brothers Illustrate the Contradiction Technique

SHOW THE STORY: The Power of Visual Advocacy, Trial Guides (2011) by William and Robert Bailey offers a superb example of the cross-examination contradiction technique. The essence of the technique is to lock the witness into testimony that can be proven false.

SHOW THE STORY explains how trial lawyers can tell the story of the case powerfully with visuals. To illustrate the importance of visual persuasion, the Baileys use an Everett, Washington murder case. In 1917, members of the Industrial Workers of the World (IWW - a labor movement organization) aboard the ferry Verona sailed into an Everett dock on their way to a demonstration. Sheriff’s deputies and citizens were there to greet them. Shots were exchanged and five IWW members and two deputy Sheriffs were killed.

SHOW THE STORY tells how George Vanderveer, who represented accused murderer Tom Tracy, employed visuals to contradict the witnesses. At the time of the shooting, the bow of the boat was at almost a ninety degree angle to the dock. The only evidence that Tracy had shot the deputy was the eyewitness testimony of witness who claimed they could see him shooting from a port side window.

SHOW THE STORY contains archival photos, diagrams and charts to tell the story that it was impossible for the witnesses to see Tracy shooting from the port window. The book describes what happened at trial:

“When the trial began, one after another prosecution witness got on the stand and identified Tom Tracy as having fired a gun from a window on the port side of the Verona. Sheriff McRae was first up, and Vanderveer eagerly pounced on him when it came time for cross-examination. He staged the scene in the courtroom with a physical demonstration showing that the sheriff’s view was completely cut off. Confidence shaken, backpedaling, Sheriff McRae left the stand with his credibility in ruins.

“Deputy Sheriffs William Bridge and “Honest” John Hogan did no better than their boss. Using a scale model of the Verona, Vanderveer proved that it would have been physically impossible for either deputy to have seen the deputy’s face.”

SHOW THE STORY contains a treasure trove of ideas and illustrations that will enable trial lawyers to visually tell a persuasive story of the case. The book can be obtained at the Trial Guide Publishers website. Learn more about the cross-examination confrontation technique in Cross-Examination Handbook.

NEW VISUAL PERSUASION BOOK - SHOW THE STORY – AND CROSS-EXAMINATION

Give Punch to Impeachment with Visuals

Our co-author Bill Bailey and his brother Robert have just had their book SHOW THE STORY: The Power of Visual Advocacy published by Trial Guides. This is the quintessential trial advocacy guidebook on how to bring the trial story alive in the courtroom through visuals.

This includes cross-examination. One example of how visuals can have impact during cross is offered during Bill Bailey’s informative interview of Federal Court Judge Marsha Peckman, as follows:

“WB (William Bailey): Have you seen any effective impeachments in trial by video-deposition excerpts?

“MP (Marsha Pechman): Only one time, in a patent case. One of the key issues was who designed the invention first. At trial, the lawyer put up the video clip of the same question being asked in the deposition, along with the transcript. I got to see not only the words but, side by side, what the witness looked like the first time the question was posed.

“WB: That must have been devastating.

“MP: It was, absolutely convincing me that this witness was lying about when it was that he invented this thing. He was rolling back the clock to try and beat the other guy’s invention.”

Show the Story has drawn praise from many of the best:

“It’s easy to convince lawyers that visuals are important. It’s not easy to teach lawyers how to create and use visuals well. Show the Story is the fix. This book is beautifully designed and written, and teeming with essential guidance. In the best tradition of Trial Guides, it is a crucial read.”
David Ball, author of Reptile and David Ball on Damages 3

“If lawyers employ the sophisticated visual strategies presented in this book, they will have a distinct advantage over those who do not. All will benefit greatly from this text. Bravo!”
Kathleen Flynn Peterson, fellow of the American College of Trial Lawyers, past president of the American Association for Justice

The authors certainly know their subject. Bill Bailey is an outstanding trial lawyer in Seattle, author of articles on trial techniques and adjunct professor at Seattle University Law School. His numerous awards include Best Lawyers in America, WSAJ Trial Lawyer of the Year, and National Law Journal Litigator of the Month. Bill teamed with his brother, Robert, to produce the book. Robert, who lives and operates his consulting business Trial by Design (trialbydesign.com) in the San Francisco Bay Area, is a nationally recognized trial consultant who concentrates on story development and visual communication.

Show the Story can be obtained by clicking here for Trial Guides.

CONTENTS

Part I: Visual Learning
1. Our Visual World
2. Communicating Visually

Part II: Show the Story
3. Thinking Like a Film Director
4. Establishing the Story’s Settings
5. Introducing Characters Visually
6. Presenting the Story’s Rule of Theme
7. Setting Up the Conflict
8. Showing the Standards
9. Identifying Character Choices and Actions
10. Re-creating Climactic Moments
11. Seeing the Big Picture

Part III: Visual Tools and Techniques
12. Making Your Case Stick
13. How Tech Savvy Should I Be?
14. Employing the Locus in Quo
15. Building the Theme
16. Creating Computer Illustrations and Animations
17. Working with Computer-Graphics Specialists
18. Avoiding the Pitfalls
19. Exmaining Computer-Illustration Case Studies
20. Creating Illustrations from Source Material
21. Using Google Earth

Part IV: Visual Foundation
22. Hearing a Judge’s Perspective
23. Dealing with Evidentiary and Ethical Issues
24. Enhancing Reality
25. Expanding Traditional Evidence Rules
26. Winning an Admissibility Knife Fight
27. Turning the Weapon Around: Defense into Offense
28. The Future Is Now

Appendices
A. Defending with Visuals
B. The Defense Playbook

CROSS-EXAMINATION AND THE ART OF WAR – PART 3

9 Principles of War Guide a Winning Cross-Examination

This is the third and last in a series of articles (go here for part one and here for part two) on the principles of war as described in Art of War by Sun Tzu and how those same principles apply to the cross-examination of a witness. The three principles explored here are surprise, unity of command and simplicity.

SURPRISE: “Strike the enemy at a time and/or place and in a manner for which he is unprepared. Surprise can decisively shift the balance of combat power. With surprise, success out of proportion to the effort expended may be obtained. . . . It is not essentialthat the enemy be taken unaware, but only that he becomes aware too late to react effectively.” [Ibid, pp. 10, 11]. Once we have carefully and surreptitiously laid the groundwork, we must end the line of questions with a payoff or punchline that makes the point crystal clear. If we can surprise a witness with a question, we can go a long way toward achieving our aim. There are two kinds of surprise; one is praiseworthy, the other blameworthy.

UNITY OF COMMAND: “Unity of command results in unity of effort by coordinating the actions of all forces and directing them toward a common goal.” [Ibid, p. 10]. On one episode of the fifties radio show, Tales of the Texas Rangers, Joel McRae tells an apocryphal story about a small town sheriff who called the Texas Rangers for reinforcements in dealing with a riot that was brewing. When only one Ranger answered the call, the sheriff asked why. The Ranger replied, “You’re only expecting one riot, aren’t you?” Most trial lawyers have the type of personality that prefers “one riot, one ranger.” We are simply too much the prima donna to ever willingly share the glory with someone else. Some cases, however, are too large and too complex for the Lone Ranger mentality. We need a trial team. Notice I said team. A collection of Lone Rangers pretending to cooperate can be worse than only one Lone Ranger. Every trial team must have a captain, one person who calls the shots.

Marcia Clark, in Beyond a Doubt, reminisces that Gil Garcetti appointed her “co-lead counsel” on the O.J. Simpson case. This decision may not have doomed the prosecution from the outset, but it certainly didn’t help matters at all. Co-lead counsel equals no lead counsel. We must have one vision for the presentation of the case, one interpretation presented to the jury, one single overriding theory for the cross-examination of the witnesses. Many trial advocacy schools have mock juries to listen to opening statements and final arguments and then deliver a verdict based on those arguments. For sake of illustration to the students, different lawyers give openings and closings for the same side. Frequently, the lawyer who closes hasn’t even heard the opening given by his “colleague.” In debriefings, the jurors almost unanimously complain that they were confused by the differing outlooks between the lawyers who opened and closed for the same sides.

The British principles of war do not include “unity of command.” They replace it with “cooperation.” When we express this principle as “cooperation” rather than “unity of command,” we can see that even a solo advocate can violate the principle. For example, it sometimes happens that defense witnesses in DUI cases will, when placed under oath before the fact finder, admit that the defendant was drinking heavily. They may have previously given statements to the effect that he was sober as a judge, but now they come forward with a facsimile of the true facts. What to do? Some lawyers would gleefully impeach them with the prior inconsistent statements about the defendant’s sobriety. Remember, we want “unity of effort by coordinating [actions] toward a common goal.”[Ibid]. If we simply do a friendly cross emphasizing the defendant’s drunkenness, then our facts cohere and cooperate to prove up our case.

SIMPLICITY: “Prepare clear, uncomplicated plans and [ask] clear, concise [questions] to insure thorough understanding. Simplicity contributes to successful operations by reducing the possibility of misunderstanding and confusion.” [Ibid, p. 11]. Especially when we are cross examining experts, we can lose ourselves, the jury, and our case in a forest of complexities. Remember the KISS Principle. Keep it simple, stupid.

CROSS-EXAMINATION AND THE ART OF WAR – PART 2

Principles of War Guide a Winning Cross-Examination

This is the second in a series on the principles of war as described in Art of War by Sun Tzu and how those same principles apply to the cross-examination of a witness. The three principles explored here are maneuver, economy of force and security.

MANEUVER: “Place the enemy in a position of disadvantage through the flexible application of [lines of questioning]. The object of maneuver is to concentrate (or disperse) [effort] in a manner that will place the enemy in a position of disadvantage. . . .”[Ibid]. An excellent example of maneuver in the courtroom comes from the movie, A Few Good Men. There the defense team chose to deal with the adverse testimony of the Government’s medical witness on several fronts. First, they objected to his qualifications, pointing out that he had no training in forensics. Second, through a relatively friendly cross-examination, they raised the possibility that the victim’s death could have come from natural causes. Third, through a confrontational exchange, they suggested that the doctor might be inclined to fudge his findings to cover for his own incompetence in giving the victim a clean bill of health shortly before his death.

The doctrines of primacy and recency also serve as examples of maneuver. We can do a legally sufficient job of making our points in any particular order, but a persuasively sufficient job requires that we order our points in as compelling a fashion as possible. We can analogize a cross-examination to a chess game. Chess is divided into the opening, middle game, and endgame. Volume after volume has been written on the subjects of opening and endgame. Chess masters know that they must start strong and end strong. As it is with chess, so it is with cross-examination. Picking a strong beginning and a strong ending constitutes a good start, but the cross examiner must also arrange his middle material so as bring maximum persuasion to bear on the fact finder.

ECONOMY OF FORCE: “Allocate minimum essential combat power to secondary efforts. . . . Minimum essential means must be employed at points other than that of the main effort.” [Ibid]. Where on the one hand we want to mass our forces on the main objective, on the other hand we want to spend just enough time, energy, and effort on the lesser matters. When we cross-examine a witness, minimal time and effort should be expended on fruitless lines of inquiry, so that we can expend maximum effort on areas which will yield a greater reward for our efforts. If we run the good ship Cross-examination aground pursuing high risk, low payoff lines of inquiry, the fact finder may not be nearly as impressed with our good work on more fruitful lines of inquiry.

SECURITY: “Security results from the measures taken by a [cross-examiner] to protect [him]self from espionage, observation, sabotage, harassment, or surprise.” [Ibid]. In this day of open discovery, our opponent potentially knows all the facts in our possession. What he does not know, and what the opposing witness doesn’t know, is how we intend to use those facts. A hostile witness who knows five questions ahead exactly what we are going to ask, will do his best to torpedo us. In such a situation we may have little hope of getting an unstudied, frank answer. We must sometimes craft our questions so that the witness finds our purpose opaque. Remember, however, that if the witness and opposing counsel don’t know what we’re up to, the jury likely won’t know either. We cannot save the significance of our carefully crafted lines of inquiry for final argument. The fact finder, not knowing the significance of the line of questioning, will have forgotten it by then. We must sequence our questions so as to make full use of the next principle of war.

CROSS-EXAMINATION AND THE ART OF WAR

Principles of War Guide a Winning Cross-Examination

Starting sometime in the seventies it became fashionable for businessmen to read The Art of War by Sun Tzu and A Book of Five Rings by Miyamoto Musashi. Executives allegedly found the ancient Oriental precepts of waging war applicable to the dog-eat-dog business world. It may be chic and stylish to study the Tao of the inscrutable Orient, but we need search no farther than the ROTC class at our nearest college or university to find all the quasi-military guidance we need. American military science teaches that nine principles govern military strategy. These principles of war apply as readily to a game of chess as to total global warfare. They also apply to the trial of a criminal case or the cross-examination of a witness. They are: Objective, Offensive, Mass, Maneuver, Economy of Force, Security, Surprise, Unity of Command, and Simplicity.

In this, the first of a three-part series, the principles of Objective, Offensive and Mass are explored.

OBJECTIVE: “Direct every [cross-examination] toward a clearly defined, decisive, and attainable objective. . . . Every [cross examiner] must understand and clearly define his objective and consider each contemplated action in light thereof.” [Thomas E. Griess, Ed., The West Point Military History Series: Definitions and Doctrine of the Military Art, p. 10, Avery Publishing Group, Wayne, NJ, 1984]. If we don’t know where we’re going, we probably won’t like it when we get there. We set our main objective as persuasion of the fact finder to accept our history of the event we are litigating. On the road to the main objective we must set minor and preliminary objectives leading toward the main objective. When we rise to cross-examine a witness, we must keep our case theory always in sight, and have as our goal clearly defined, obtainable preliminary objectives. Game Theory describes two types of games: zero sum games which result in a clear winner and a clear loser, and non-zero sum games in which both sides can win and both sides can lose.

Cross-examination is a non zero sum game. We may not have the wherewithal to achieve the absolute destruction of an individual witness, but simply minimizing the witness’s affect may be all that we require to achieve our ultimate objective. We don’t engage the witness on points we know we cannot win. We don’t seek unobtainable annihilation when attrition will suffice. We take the witness on in areas where we know him to be vulnerable and we inflict maximum damage to the opponent’s case while risking minimal damage to our own. We don’t destroy witnesses for the sheer sake of destruction. We calculate everything within the framework of persuading the fact finder to endorse our case theory.

OFFENSIVE: “Seize, retain, and exploit the initiative. Offensive action is necessary to achieve decisive results and to maintain freedom of action. It permits the [cross-examiner] to exercise initiative and impose his will on the [witness], to set the terms and select the place of battle, to exploit enemy weaknesses and rapidly changing situations, and to react to unexpected developments.” [Ibid]. As Robert Heinlein said, no “department of defense” ever won a war. We win our case by going on the offensive, taking the battle to the enemy. On cross-examination, we must take control of the witness and dynamically make our points with him. We have no room for timidity. We must exude confidence in the justness of our cause and confidence in the facts we seek to establish through the witness.

MASS: “Concentrate [the attack] at the decisive place and time. . . . Proper application of this principle . . . may permit [one cross examining from a position of weakness] to achieve . . . superiority at the point of decision.” [Ibid]. That which we must prove to emerge victorious, we want to prove in the most persuasive way. When we cross examine a witness, we must concentrate our firepower on the weakest parts of the witness’s testimony. We order our questions so as to pile up the persuasiveness of helpful facts. We then drive those helpful facts home. Judicious application of mass will corkscrew helpful facts out of a reluctant witness.

NEW TED BUNDY BOOK BY GEORGE R. (Bob) DEKLE, SR.

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.

SUSANA, THE ELDERS AND THE CROSS-EXAMINATION CONTRADICTION TECHNIQUE

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.

CHAOTIC CROSS-EXAMINATION OF CONVICTED EX-GOVERNOR BLAGOJEVICH

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.

BLAGOJEVICH - THE PROVEN LIAR – GUILTY OF PUBLIC CORRUPTION

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.

IRVING YOUNGER’S TEN COMMANDMENTS REVISITED

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:

IRVING YOUNGER’S TEN COMMANDMENTS OF CROSS-EXAMINATION

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.

ART OF LISTENING - PART 3

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

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.

INTERPLAY BETWEEN TAKING A DEPOSITION AND CROSS-EXAMINATION

David Boies on Cross-Examination and Depositions with the Microsoft Antitrust Case Illustration

Deposition Purposes and Techniques

David Boies’ performance in taking Bill Gates’s deposition in Department of Justice’s Sherman Antitrust case against Microsoft is an excellent illustration of how to focus on the purposes of the deposition and by doing so, select the right techniques.

The reasons for deposing the witness dictates the techniques to be used during the deposition. For instance, if a favorable witness is unlikely to be present at trial, and therefore the purpose of the deposition is to preserve the testimony, the deposition techniques are the same as those that produce an effective direct examination.

David Boies began the deposition of Bill Gates thinking that he would be cross-examining him at trial. Boies trial examination of Gates would tell the government’s story that Microsoft violated the Sherman Antitrust Act. With that goal in mind, Boies did not want to give Gates a dress rehearsal of the trial cross-examination. However, Gates’ performance at the deposition caused Boies to reassess the situation, conclude that Gates would never testify at trial and decide that the deposition would be used in trial in lieu of that cross-examination.

Boies described the situation and his approach this way:

“. . . Most depositions are designed to prepare for trial, and you try to develop the building blocks you will use rather than explicitly combining those blocks to establish you case at the deposition itself. However, where a key witness is not likely to appear, the deposition becomes a substitute for trial testimony.” Having concluded that Gates would not testify because of his poor performance, Boies decided to “treat the examination as if it were the last word.”

Concession-Seeking Examination

Boies sought to lock Gates into concessions. It is a technique for either examining an adverse witness deponent or cross-examining a witness at trial. We describe this technique in the Cross-Examination Handbook. Questions are designed to force the witness to provide concessions that either build the questioner’s case theory or undermine the other side’s. Because Boies could prove the assertion made in the question asked, Gates would either have to provide it or stamp his answer as untruthful, ridiculous or mistaken. Boies aptly put it this way, “I began with that truth, which I knew Gates would eventually have to accept. . .” Time after time when Gates equivocated or claimed not to recall, Boies confronted him with e-mails either sent or received by him.

With this methodology, Boies was able to either extract the truth or expose efforts to avoid. Boies noted that one effort by Gates to “avoid the plain meaning of his e-mails. . . left Judge Jackson shaking his head when it was played in court.”

Boies described the videotape of the deposition as “devastating.” Clips of that video deposition are popular on YouTube(see a video at the endo of this page) and have become staples for pretrial classes as demonstrations of what not to do as a deponent and what to do in taking a deposition.

A final lesson from Boies is how to most effectively use the video deposition at trial. Rather than showing it all at once, Boies chose to play selected portions at selected points. The judge agreed over Microsoft’s objection. Boies explained the strategy this way:

“. . . (W)e adopted the practice of playing Gates excerpts in between each of our witnesses, selecting passages that dealt with topics our next witness would address. Gate’s admissions bolstered each witness’s testimony. Where he denied a fact or asserted lack of knowledge, it gave our witnesses a dramatic way of making their points.”

In essence, the master Boies applied the concession-seeking approach fully described in Cross-Examination Handbook to great advantage.

For a full account David Boies’ take on Gates deposition and the Microsoft antitrust trial, see Chapter 4 of Courting Justice by David Boies (Miramax Books 2004). For a discussion of concession-seeking cross, see Cross-Examination Handbook.

ART OF LISTENING – PART 2

The Art of Cross-Examination Requires Mastering the Art of Listening

The case began when a young lady whom we shall call Valerie used her CB radio to arrange a sexual rendezvous with a long distance truck driver. The trucker bragged to the defendant about his rendezvous with Valerie, and the defendant decided he, too, should have sex with her. The defendant, however, did not think it was necessary to obtain her consent, and got himself charged with burglary and sexual battery.

At the ensuing trial, he took the stand to testify that Valerie had invited him over to her home to have sex. He said he waited until nightfall, crawled through Valerie's bedroom window, and engaged in consensual sex with her. Approximately one hour and 45 minutes into his testimony, he testified that, at the conclusion of the rendezvous, he went home and knocked on the door to have his mother let him in. The prosecutor immediately seized upon a discrepancy. The defendant crawled through Valerie’s window but knocked on his own door? Having heard and identified the weakness in the defendant’s testimony, the prosecutor then had to make sure the jury heard it too. He took these two incidents, placed them side by side, and let the jury draw their own conclusions.

The cross-examination went something like this:

Q. When you got home, what did you do?
A. Knocked on the door?
Q. When you got to Valerie’s what did you do?
A. Crawled through her window.
Q. You knocked on your own door?
A. Yes.
Q. But you crawled through Valerie’s window?
A. Yes.
Q. You knocked on the door of the house where you lived?
A. Yes.
Q. But you crawled through the window of the house where you’d been invited?
A. Yes.

The jury concluded that the defendant was guilty of both Burglary and Sexual Battery.

CROSS-EXAMINATION – KNOW THE ANSWER

Humor Makes the Point

Humor can be the adhesive to make the point stick. And, the point is that the cross-examiner should know the answer before asking the question or not care what the answer is. Otherwise, as the saying goes, the cross may be “more suicidal than homicidal in nature.” The following transcript of a defense attorney cross-examining a police officer in a felony trial humorously makes the idea stick like glue:

Q: Officer, did you see my client fleeing the scene?
A: No sir, but I subsequently observed a person matching the description of the offender running several blocks away.

Q: Officer, who provided the description?
A: The officer who responded to the scene.

Q: A fellow officer provided the description of this so-called offender. Do you trust your fellow officers?
A: Yes sir, with my life.

Q: WITH YOUR LIFE? Let me ask you this officer – do you have a locker room in the police station – a room where you change your clothes in preparation for your daily duties?
A: Yes sir, I do.

Q: And do you have a locker in that room?
A: Yes sir, I do.

Q: And do you have a lock on your locker?
A: Yes sir.

Q: Now why is it, officer. IF YOU TRUST YOUR FELLOW OFFICERS WITH YOUR LIFE, that you find it necessary to lock your locker in a room you share with those officers?
A: You see sir, we share the building with a court complex, and sometimes defense attorneys have been known to walk through that room.