Saturday, September 8, 2012


As the prosecutor sat in his office preparing for his upcoming murder case, the receptionist buzzed him and said that the defense attorney was in the lobby and wanted to see him. The prosecutor had the defense attorney ushered in and saw that the defense attorney was carrying a brown paper bag. Placing the bag on the prosecutor’s desk, the defense attorney said “Here is the weapon.” The prosecutor didn’t have to ask which weapon. One glaring weakness in the upcoming case was the inability to produce the murder weapon. The authorities had fruitlessly searched for the weapon high and low, and now on the eve of trial the defense attorney was handing the weapon over to the state. What was going on?

The prosecutor summoned an investigator to take charge of the weapon, and the bag remained untouched until the investigator arrived. There, in the presence of both the prosecutor and the defense attorney, the investigator plunged his gloved hand into the bag and pulled out a Smith and Wesson revolver. The prosecutor immediately thought “That’s not the weapon,” but he held his peace.

The case involved a husband who had grown tired of his wife and decided that murder was cheaper than divorce. He reported her missing, and approximately two weeks later her decomposing body had been found in the woods a few miles from their home. The back of the victim’s head had been caved in by some long, slender blunt object, and the prosecutor strongly suspected that the object was a dumbbell handle. When the defendant’s home had been searched, he had been found to have a full set of free weights, but only one dumbbell. Because a dumbbell handle is a long, slender blunt object and because dumbbells come in pairs, the prosecutor inferred that the defendant had used the dumbbell handle to kill his wife and had afterward disposed of it. The chief witness against the defendant was a rather disreputable character whom the defendant had recruited to help dispose of the body, and thus far in the case the defendant had disclaimed any knowledge of how his wife died. The prosecutor had anticipated that when the case came on for trial the defense would try to shift suspicion from the defendant to the witness.

After the defense attorney left, the prosecutor studied the revolver intently. It was a .38 caliber Model 14 with a full underlug which made the barrel thick and heavy. Maybe it was the murder weapon after all. If the defense was going to represent it as the weapon, why argue with them? Despite his belief that the true murder weapon was the missing dumbbell handle, the prosecutor decided to accept the defense representation that the revolver was the weapon. What did this development mean? Sherlock Holmes might call it “quite a three pipe problem,” and Hercule Poirot would certainly say it called for the exercise of his “little grey cells.” After consulting his “little grey cells,” the prosecutor thought he knew the answer. The defendant was going to testify at trial, and he was going to claim that he killed his wife in self defense. A self defense story would be weakened by a cross-examination on the whereabouts of the weapon, so the defense produced the weapon.

Now, how could the prosecutor identify and authenticate the weapon? Call the defense attorney? The defense would move to quash the subpoena and the judge would probably grant the motion. If the judge denied the motion there would be an interlocutory appeal, and a case which had been pending for two years would suffer another lengthy delay. If the appellate court ruled in the state’s favor, the defense attorney would certainly move to withdraw and the judge would almost certainly grant the motion. There would be even more delay as the new defense attorney got thoroughly familiarized with the case. The case might hang on for another two years or more before it could be reset for trial. Calling the defense attorney was out of the question. Besides, the prosecutor thought he knew a better way to identify and authenticate the weapon.

The trial went exactly as the prosecutor expected. The defendant testified that his wife viciously attacked him with his own handgun, and that he disarmed and killed her in self defense. In anticipation of just such testimony, the prosecutor had already rehearsed his cross-examination. He had enlisted the aid of another prosecutor in the office to play the role of the defendant, and he had repeatedly cross-examined his colleague. This preparation paid substantial dividends, and the defendant did not do nearly as well on the real cross as his counterpart had done on the practice cross-examinations.

The cross-examination began with the prosecutor marking an item for identification and showing it to the defendant:

Q: This is the gun you killed her with, isn’t it?
A: Yes.

Up to this point, the prosecutor had never mentioned the firearm and had offered nothing in the way of evidence to try to identify the murder weapon. The cross-examination could not have begun more dramatically, and the well-rehearsed questioning which followed completely destroyed the defendant’s credibility.

This is cross-examination exemplifies a process sometimes called the L.I.E. Procedure:
L. Learn the facts of your case.
I. Identify the lie that the defendant must tell in order to try to defeat your facts.
E. Engineer a cross-examination designed to exploit the illogic, impossibility, or improbability inherent in the lie.