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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…
  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…
  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…
  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…
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…
  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…
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…
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…
In Cross-Examination Handbook we explain that if the witness is nonresponsive, one countermeasure is to object. The objection to a witness’s nonresponsive answer belongs exclusively to counsel who poses the question. You can also move to strike the nonresponsive answer. If the witness interjects harmful inadmissible evidence in the nonresponsive answer, you must object in order to preserve the issue for appeal and prevent later use by opposing counsel, such as in closing argument. However,…
Advice from David Paul Jones’s Rules of Cross-Examination, a British barrister who wrote over a century and a half ago 1.                  Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate. Truth, falsehood, hatred, anger, scorn, despair, and all the passions–all the soul–is there.                           2.                  Be not regardless, either, of the voice of the witness; next to…