Thursday, October 22, 2020

F. Lee Bailey’s Legendary Cross-Examination of Mark Furman


F. Lee Bailey’s cross-examination of Mark Fuhrman was legendary. It is a good example of an effective cross of a liar. In 1995, then detective Mark Fuhrman was testified about his discovery of evidence including a bloody glove in the O.J. Simpson case involving the murder of Simpson’s wife Nicole and Ron Goldman. 

First, talk a look at a portion of the cross, and after you do we can examine Bailey’s techniques. Here’s an excerpt from the cross:  

Bailey: Q. Do you use the word “n—” in describing people?

Prosecutor Clark: Same objection.

The Court: Presently?

Bailey: Yes. 

The Court: Overruled.

Fuhrman: A. No. Sir.

Bailey: Q. Have you used that word in the past ten years?

A. Not that I recall. No.

Q. You mean if you called someone a “n—” you have forgotten it?

A. I’m not sure I can answer the question the way you phrased it. Sir.

Q. You have difficulty understanding the question?

A. Yes.

Q. I will rephrase it. I want you to assume that perhaps at some time, since 1985 or 6, you addressed a member of the African American race as a “n—“. Is it possible that you have forgotten that act on your part?

A. No, it is not possible.

Q. Are you therefore saying that you have not used that word in the past ten years, detective Fuhrman?

A. Yes, that is what I’m saying.

Q. And you say under oath that you have not addressed any black person as a “n—” or spoken about black people as “n—” in the past ten years, detective Fuhrman?

A. That’s what I’m saying. Sir.

The defense not only called witnesses to say that Fuhrman used the word, the defense produced an audio tape in which he used the word.

Fuhrman was later convicted of perjury and sentenced to three years’ probation. 

What techniques did Bailey employ in cross-examining this liar. First, he adjusted his demeanor to fit the witness, whom he knew was lying—Bailey was confrontational. Second, Bailey locked Fuhrman into the lie. Third, he used surprise—he didn’t telegraph to Fuhrman that he had both witnesses and an audiotape that would contradict Fuhrman. Cross by contradiction has been discussed here and in Cross-Examination Handbook as a very effective cross-examination impeachment technique. 

Friday, October 16, 2020

Cross-Examination on Improbabilities


Cross-examination can expose the improbability of a witness’s testimony. The evidentiary authority for probing the improbability of a witness’s testimony is found in Evidence Rules 401 and 611. Rule 401 states the test for relevance: “Evidence is relevant if: (a) it has a tendency to make the existence of any  fact more or less probable.” Rule 611states that the court may “exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to (1) to make the procedures effective for determining the truth. . .” This provision of Rule 611(a) can convince the judge to overrule an objection to the cross that questions the improbability of the witness’s testimony. cross-examination to proceed. Rule 611(b) includes cross-examination matters: (1) within the scope of direct; (2) affecting credibility; or (3) that the court decides are pertinent.

One technique for impeaching a witness by showing improbability is to apply the logical form of argument referred to as “reduction to the absurd” or in Latin, “reductio ad absurdum.” This technique, also referred to as “proof by contradiction,” extends a premise of the witness out to an absurd or ridiculous result, making it implausible. The examiner asks, “If this premise is true, what else must follow?” The original premise and the absurd outcome cannot both be true.

In Cross-examination Handbook we used Clarence Darrow’s cross-examination of William Jennings Bryan in the Scopes trial, focusing on Darrow’s examination of adverse Bryan utilizing the reduction-to-the-absurd technique to defeat him. Bryan—a former candidate for President and head of the fundamentalist movement served as co-counsel for the prosecution. Clarence Darrow signed on as co-counsel for the defense. And, some say that the ordeal of the cross-examination contributed to Bryan’s death five days after the trial.

While most of Darrow’s cases have become long-forgotten footnotes in the history of U.S. jurisprudence, his legend lives on due to his performance as defense counsel in 1925 in the Scopes trial,” or “Dayton Monkey Trial.” John Thomas Scopes, a small-town, Dayton, Ohio high school teacher, was accused of teaching evolution in violation of a recently enacted Tennessee statute. Clarence Darrow’s cross-examination, which lasted a full day, reduced Bryan’s fundamentalist beliefs to the absurd. 

I’ve used Darrow’s cross in my CLE presentations on “Great Cross-Examinations in History and in the Movies” because it displays the reduction to the absurd technique being utilized to reveal improbabilities. The Scopes trial was fictionalized in a play “Inherit the Wind,” and later into a movie by the same name, starring Spencer Tracy as Matthew Harrison Brady (Darrow) and Fredric March as Henry Drummond (Bryan). The real-life cross-examination was even more dramatic than its Hollywood rendition. 

The courtroom was so packed that the judge moved the cross-examination outside for fear that the floor would collapse under the weight of spectators. Here is what the scene looked like.

Here is Darrow’s, I mean Brady’s, cross-examination of Bryan, I mean Drummond:

[Darrow locks Bryan into the premise.]
Darrow: Q. . . . Do you consider the story of Jonah and the whale a miracle?
Bryan: A. I think it is.
Q. Do you believe Joshua made the sun stand still?
A. I believe what the Bible says. I suppose you mean that the earth stood still?
Q. I don’t know. I am talking about the Bible now.
A. I accept the Bible absolutely.
Q. The Bible says Joshua commanded the sun to stand still for the purpose of lengthening the day, doesn’t it; and you believe it?
A. I do.
Q. Do you believe at that time the sun went around the earth?
A. No, I believe that the earth goes around the sun . . .
Q. . . . If the day was lengthened by stopping either the earth or the sun, it must have been the earth?
A. Well, I should say so.
Q. Yes? But it was the language that was understood at the time, and we now know that the sun stood still as it was with the earth.
A. Well, no —
Q. We know also the sun does not stand still?
A. Well, it is relatively so, as Mr. Einstein would say.
Q. I ask you if it does stand still?
A. You know as well as I know.
Q. Better. You have no doubt about it.
A. No. And the earth moves around.
Q. Yes? . . .
Q. Now, Mr. Bryan, have you ever pondered what would have happened to the earth if it had stood still suddenly?
A. No.
Q. Have you not?
A. No; the God I believe in could have taken care of that, Mr. Darrow.
[Darrow extends the premise to the absurd result.]
Q. I see. Have you ever pondered what would naturally happen to the earth if it stood still suddenly?
A. No.
Q. Don’t you know it would have been converted into a molten mass of matter?
A. You testify to that when you get on the stand. I will give you a chance.
[The examination continues later with inquiries about Adam, Eve, and the serpent.]
Darrow: Q. And you believe that came about because Eve tempted Adam to eat the fruit?
Bryan: A. Just as it says (in the Bible).
Q. And you believe that is the reason that God made the serpent to go on his belly after he tempted Eve?
A. I believe the Bible as it is, and I do not permit you to put your language in the place of the language of the Almighty. You read the Bible and ask me questions, and I will answer them. I will not answer your questions in your language.
Q. I will read it to you from the Bible, in your language. “And the Lord God said unto the serpent, because thou hast done this, thou art cursed above all cattle, and above every beast of the field; upon thy belly shalt thou go and dust shalt thou eat all the days of thy life.”
Do you think that is why the serpent is compelled to crawl upon his belly?
A. I believe that.
Q. Have you any idea how the snake went before that time?
A. No, sir.
Q. Do you know whether he walked on his tail or not?
A. No sir. I have no way to know.
Attorney for the Damned: Clarence Darrow in the Courtroom 193-198 (Arthur Weinberg ed., University of Chicago Press 1989)

Of course, the jury must be willing to accept that the principles endorsed by the witness are in fact absurd. It is highly questionable whether the Scopes jury, all from the heart of the Bible Belt, would have been favorably impressed by Darrow’s cross-examination of Bryan. A seldom-quoted portion of the transcript shows Darrow crossing over the line in a manner in which a modern jury would find reprehensible.

Here you can watch a portion of the cross in “Inherit the Wind:”

Tuesday, October 6, 2020

Cross-Examination to Fit the Witness


Cross-examination should vary depending on the type of witness you are examining.  British barrister David Paul Jones’s Golden Rules of Cross-Examination, which he wrote a century and a half ago, expressed this idea as follows:  

“Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.”

We discuss strategies and techniques for adapting the cross to the witness in Cross-Examination Handbook. What follows are a few of the techniques that can be employed based upon the type of witness you are examining.


The evader will not give a straight answer when it's harmful and will run on introducing as much damaging information as possible.  To gain control, these techniques can be used: repeat the question; have the court reporter read the question back to the witness; ask the witness to repeat the question; ask whether the witness understood the question and whether some impediment prevents the witness from answering, and if necessary, if the cross-examiner believes the court will help, ask the judge to direct the witness to answer.


When the witness is a talker who is arrogant and wants to lecture, keep the witness going and allow the witness to self destruct.  Courtroom demonstrations by a boaster can be fun.


Examine the liar on details and encourage the liar to invent a few.  Show improbabilities and try to put the witness on the horns of a dilemma.


Attempt to get the witness to repeat "I can't recall" as often as possible.  Count them.  It is ideal if the witness remembered on direct but not cross.


If the witness is slow to answer, she will leave the impression of needing time because she is unsure or because she is lying.  Do not push the witness.  Argue a little but overall be courteous and calm.