Cross-Examining a Government Informant

Randy Cox, a friend of mine and a trial lawyer in Missoula, MT, sent me an email telling the tale of a Chicago lawyer named Frank Oliver who defended a client against a federal prosecution that hinged on the testimony of one criminal informant. The defense was simple – can the jury believe the testimony of a paid government informant who was a self-acknowledged murderer, arsonist and thief. 

Here is Randy’s email: This weekend, just for fun, I was reading some articles from one of Jim McElhaney's books and some old Litigation magazine articles. There is an article in the Second Edition of The Litigation Manual from the ABA and it’s about trying a criminal case where the government's proof rested on a man who, it was revealed on direct exam by the government, had committed or participated in four or five murders, roughly a half dozen arsons and bombings, 300 or 400 burglaries and about 200 armed robberies. On cross, the defense lawyer (Oliver) was asking him about the oath and asked him about having sworn to God to speak truthfully. 

 Q. Now this same God unto whom you have sworn to tell the truth is the very God whose laws and commandments you have violated repeatedly over the course of your entire lifetime. Is that right? 

Gov't: Objection, Your Honor, to getting into his religious aspects here. 

Q. He is the one that swore to God. 

The Court: Overruled. He may answer. 

 Later, having established violation of "though shalt not kill" and asking about bearing false witness 

 Q. So you violated that commandment of God, didn't you? 

A. Yes, sir. 

Q. When you took that oath before this jury, you intended that the jury should believe that the oath had the same seriousness to you that it would to a human being. Isn't that right? {WOW!!] 

A. Yes, sir. 

 Later, 

 Q. Do you have any idea how many kinds of crimes you have committed? 

A. No, sir. 

Q. Do you know of any crime whatever that a man could commit that is beneath you morally? 

A. I don't know. 

Q. There isn't one is there? 

A. I don't know. 

Q. You cannot think of a crime that would be below you, can you? 

A. I imagine there is, but I don't know. One of the questions, having obtained agreement that he should be believed and trusted with this new identity is because he has had a "spiritual awakening when you came to perceive the difference between good and evil." 

 Q. So that whatever happened the day before, you were crawling evil, and then with this awakening, became a paragon of decency. Is that it? 

A. Yes. 

Q. That must have struck you as a remarkable day in your life, didn't it? 

A. Yes. 

Q. Did a light flood your soul? 

A. No. 

Q. You laugh? 

A. Yes. 

Q. You laugh because what I say is amusing, isn't it? 

A. Yes. 

Q. Because you cannot perceive of such a thing as a light of decency, isn't that right? 

A. I can see decency, but I don't know about no light striking me or anything like that. 

Q. You can see decency? 

A. That's correct. 

Q. Well, let's see. You said that there might be some crimes that you would not commit, right? 

A. That's correct. 

Q. Rape is one of those crimes that you would not commit, is it? 

A. I don't ever remember doing it. 

Q. You don't remember whether you committed a rape or not? 

A. That's correct. 

Q. Is it something that just kind of could have happened and slipped out of your mind? 

A. I never raped nobody, if that makes you happy. 

Q. What causes you to suppose that anything you could possibly say would make me happy? 

A. I have no idea. He then goes on to establish some particularly vile circumstances of rape of a woman who was a little "off," a little "crazy" and her husband was his friend and "Before your friend's body was lowered into his grave, you carnally knew and violated his widow." 

 How much fun would that be?? 

In final argument he talked about the government’s witness as “evil” and said, among other things, “You cannot use evil to achieve anything good. No, not even if you are a federal prosecutor.”

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. 

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:”

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.

EVADER

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.

BRAGGART

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.

LIAR

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.

FORGETTER

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.

THINKER

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.

CROSS-EXAMINATION VISUALS

Beginning this Summer Seattle University Law School will offered an online course entitled “Visual Litigation and Today’s Technology." Cross-examination visuals were featured because visuals can be extremely powerful weapons for cross-examination. They can be used to gain concessions supporting your case theory and undermining the other side’s case theory.

Visuals can also be very effective for impeaching a witness. For examples, impeachment visuals can include: a prior inconsistent statement either in a document or in a visual, such as a video deposition; a prior conviction—judgment and sentence document; a visual that establishes that the witness did not have personal knowledge about that which the witness testified; a visual that proves that the witness’s testimony is improbable; a visual that reveals the witness’s bias or interest; and a statement in a learned treatise that conflicts with the witness’s testimony.

“Visual Litigation and Today’s Technology” is a 2-credit course that I taught. It was so popular that another section was added. In this Visual Litigation and Today's Technology online course, students interested in litigation learn how to integrate technology into their trial visual presentations. Just as visuals and technology have become a centerpiece in modern life, they also are the centerpiece in trial. Judges and jurors expect lawyers to use visuals with today’s technology.

The course is taught in the context of mock civil and criminal cases, giving students simulated real-world experiences working with visuals and cutting-edge technology. This experiential course allows students in role-play assignments to plan the cross-examination of witnesses with visuals.

This course is comprehensive in its exploration of visual communication strategies and technology, including, among other topics: the ethical and legal boundaries to what visuals may be displayed in trial; evidentiary foundations for visuals (animations, demonstrations, laser scanner images and so on); visual advocacy in both a pretrial venue and a courtroom, from opening statement through closing argument; the creation of visuals; litigation software, such as Sanction, TrialPad, and SmartDraw; and meeting the trial judge's expectations of a trial lawyer's competency when employing technology.

The text for the course is my new book Visual Litigation: Visual Communication Strategies and Today’s Technology, which is being published by Full Court Press, the publishing arm of Fastcase. The text offers examples of how visuals were used on cross-examination in notable cases, such as Abraham Lincoln’s cross-examination with a Farmer’s Almanac or the prosecutor’s cross-examination of Richard Hauptmann in the Lindbergh kidnapping/murder case with a ransom note and Hauptmann’s diary.

My co-authors are Thomas O'Toole and Patrick Muscat. Tom is the President of Sound Jury Consulting, and he has practiced across the nation for over fifteen years in nearly every field of litigation. Pat is an Assistant Prosecuting Attorney and Deputy Chief of the Special Prosecutions Unit in Detroit where he has tried over 100 homicide jury trials using courtroom technology. 

CROSS-EXAMINATON AND TRUTH

 

As we have said here and in Cross-Examination Handbook, the primary goal of cross-examination is to capture the truth from the witness. On cross, you shouldn’t be trying to discover anything; you shouldn’t ask any interrogatory questions. You know the truths that the witness has to offer and you aim to extract those known truths. If the witness fails to provide the truths that you can prove by direct or circumstantial evidence or by common sense, the witness will suffer the consequences.

You may have missed this illustration of how to extract the truth or make the witness look witless when it was first discussed here. It bears repeating.  The Pizza Connection case provides a stark example of how a witness’s testimony can be exposed as comical if the witness refuses to provide the truthful answers. The Pizza Connection case was a mega-trial involving 18 defendants who were charged with a $1.6 billion heroin smuggling and money laundering that stretched from Brazil to small pizzerias in the Midwest. Trial lasted from October 24, 1985 to March 2, 1987.

 

The following is an excerpt from Shanna Alexander’s book The Pizza Connection: Lawyers, Money, Drugs, Mafia 318-320 (Weidenfeld & Nicholson) (1988) in which she describes United States Attorney Robert Stewart’s cross-examination of an alibi witness and it’s a gem of a cross:

 

(Defense counsel) Larry Bronson’s defense of (defendant) Sal Greco is focused on his client’s need to prove that he was not in a Bagheria farmhouse in early March 1980 watching a heroin quality-control test. Bronson will show he [Greco] was quietly, busily at home in New Jersey. He calls Greco’s good friend and tax accountant, Justin Pisano, a man who keeps detailed date books.

Under patient examination by Bronson, the witness goes through a precise account of driving to the Jersey Shore three Sundays in March to go over Greco’s accounts and to visit nearby pizzerias with his client in order to compare their business with that of the Greco pizzeria in Neptune City.

Stewart’s cross-examination of Pisano becomes this prosecutor’s finest hour. He concentrates on the March date-book entries.

“On March 2, yes, I drove down to see Greco,” Pisano says, “and we had a leisurely dinner.”

“You told us yesterday you were in no rush, right?”
“Yes.”
“And that’s the truth, the whole truth, and nothing but the truth?”

“Yes.”
“Then what is this appointment for 7:00 p.m., with Troviatta?”
“Just a tax appointment. Early March is income tax time, and I made many Sunday and night appointments to service all my tax clients.”
“What is Troviatta’s first name? Where does he live?”
“I don’t remember. I don’t even think I do their taxes anymore.”
Stewart remembers. He says Pisano was thirty-five miles away from Greco’s pizzeria that night, in the heart of Manhattan, at Lincoln Center, at the opera.
Pisano emphatically denies this. He has only been to Lincoln Center once in his life, to hear Pavarotti.
“Are you an opera fan?”
“Nope. Only been to one opera in my life, when I was in high school.”
Stewart shows the witness, and the jury, the Sunday-evening newspaper opera

listing for March 2, 1980, at the New York State Theater at Lincoln Center: La Traviata. Bronson objects. “Misleading the witness, your Honor. 

His witness’s tax client is named Troviatta—with two t’s.”
“And the advertisement for the opera is spelled T-R-A-V-I-A-T-A, right?”Stewart asks. “No. It’s La Traviata,” says Pisano gamely.
“La Traviata?”
“Right. I don’t see the comparison to Troviatta.”
“Except for the time. That’s a coincidence. Isn’t it?”
Pisano agrees, and Stewart directs him to look at the entry for two Sundays ahead, March 16, at one in the afternoon.
“Are you referring to Carmen? Carmen Sangari, who I no longer do?”
“Carmen Sangari?” Stewart produces the New York Times, and asks him to read aloud the opera listing for that Sunday afternoon. Pisano looks, and agrees that this is truly an amazing coincidence.

Spectators have begun to giggle. But Stewart is not finished. He directs the wit- ness’s attention to his diary entry for the following Sunday at 7:00 p.m. “Is that a tax client of yours?”

The giggling turns to guffaws. The notebook says, “Barber of Seville.”

This cross illustrates that no matter which way the witness responds, the cross-examiner wins when the question require that the witness concede the truth or suffer the consequences.

Humor: Cross-examination with Open-Ended Questions

Don’t shoot yourself in the foot. Leading questions on cross. Leading questions. Leading questions. Open-ended cross-examination questions can have repercussions.

The following is a courtroom cross-examination exchange between a defense attorney and a farmer with a bodily injury claim. It came from a Houston, Texas insurance agent.

Q: "At the scene of the accident, did you tell the constable you had never felt better in your life?"

A: "That's right."

Q: "Well, then, how is it that you are now claiming you were seriously injured when my client's auto hit your wagon?"

A: "When the constable arrived, he went over to my horse, who had a broken leg, and shot him. Then he went over to Rover, my dog, who was all banged up, and shot him. When he asked me how I felt, I just thought under the circumstances, it was a wise choice of words to say I've never felt better in my life."

Length of a Cross-Examination

As we discuss in Cross-Examination Handbook, there is no specific time frame that fits all cross-examinations because the extent of cross will vary depending upon the circumstances of the case. However, endless cross is tiresome, and the jurors will not recall much beyond the high points. Therefore, we recommend brevity. By editing down the content, the cross-examiner can better maintain the jury’s interest and be more effective.

To make the best allocation of time and to have a powerful cross, adhere to the following four guidelines:

1.    Limit the total number of topical units to be covered to less than a handful—three is ideal;

2.    Go big not small—focus your cross on only significant points—avoid minutiae;

3.    Once you have covered the material in a unit, such as cross on an expert’s bias, move on to the next unit; and

4.    Above all, do not be tempted to conduct an exploratory cross because something the witness testified to peaked your curiosity.