Last Tuesday, I had a relatively straight-forward case set for jury trial in Waukesha County Circuit Court. My client was accused of Battery and Disorderly Conduct, as Domestic Violence offenses. The evidence was limited, as domestic violence cases often are, to the testimony of the alleged victim and police officers who respond after the fact. Because the allegation was limited to events over a couple minute period, and the police reports were appropriately short and circumspect, I decided to use the jury trial to deliberately practice the cross-examination tactics taught by famous criminal defense attorney F. Lee Bailey.
Lee Bailey, a member of the O.J. Simpson “Dream Team” defense, teaches two primary tactics in cross-examining a witness:
The first is to use no notes. No police reports, no outlines – simply no paper. Bailey’s thought is that paper gets in the way of the attorney’s use of eye-contact with the witness. A witness is less likely to lie if they are being “held” by constant eye-contact.
The second tactic is speed. Questions should be posed as quickly as possible. Not in a badgering fashion, but deliberately fast. The idea of this tactic being a witness who is being questioned quickly will not have time to think of a lie or obfuscate – and will therefore revert to the truth.
I talked through the facts of my case with my client many times, reviewed notes I’d prepared from those talks, and re-reviewed the police reports numerous times, I committed all of the facts to memory and worked out a mental checklist of items I wanted to cover for each witness.
As the witnesses were being examined by the Assistant District Attorney (who was working very closely with an outline on a legal pad), I did take notes as to subjects that were helpful or needed following up on. This was to stay focused on the testimony as it was coming in – not for use during cross.
During cross, I took Bailey’s tactical advice literally, and questioned each witnesses from a standing position in front of counsel tables – maintaining eye contact and quickly asking questions of the witnesses. My notes were left behind me, on counsel table.
In addition, I did not read or take notes during voire dire, opening statements, or closing arguments.
The result of using Bailey’s technique was superb. Not only did I question each witness more effectively, but my courtroom demeanor reflected confidence and a strong understanding of all the facts of the case.
The Waukesha jury ended up deliberating for only 25 minutes before acquitting my client of both charges. My client left the Waukesha Courthouse happy to have rid himself of a false accusation and I was happy to have practiced new trial techniques that not only worked well – but will also be my standard practice going forward.
To hear about the techniques straight from F. Lee Bailey himself – listen to this short audio clip on YouTube: https://www.youtube.com/watch?v=QNd3rWMuc2s