Murder, Sex and the Art of Cross-Examination

How did the “richest man ever tried for murder,” (and tried again for hiring a hit man) get acquitted? After all, there were two eyewitnesses who saw the murderer and were shot by him as well, and the hiring of the hit man was taped and recorded by the FBI. Part of the answer, (a small but very important part) was the very capable cross-examination skills of the defendant’s attorney, Richard Haynes.

This was thrillingly documented in a book titled Final Justice, by Steven Naifeh and Gregory White Smith who wrote the even more thrilling Mormon Murders. Haynes turned the murder case into a trial of the defendant’s estranged wife, Priscilla Davis, who was shot during the murder and was likely the intended target. She was a buxom blond with lots of sexual misadventures that titillated the jury and turned them against her. She was also very clever herself. However, Haynes started the cross by asking her questions about some very awkward sexual and drug habits which the witnessed fudged, hoping that would be the end of it. Instead, Haynes had vast evidence showing that she was lying about her drug use. From then on Haynes would ask about other awkward situations, which he had made up, but from then on, the witness’ denials fell on the deaf ears of the jury. The jury saw her as deceitful and from then on, they gave her no credibility. The book details the circus that ensued. Among other things, the defense counsel would scour local bars to find witnesses, some were likely paid and were out-and-out liars. But the jury acquitted Cullen Davis after an 8 month trial.

Haynes was evidently a masterful storyteller and had an incredible presence in a courtroom. He used these gifts to get a jury on his side. Not many attorneys can do this the same way, Bobby Lee Cook comes to mind as an exception.

The One Thing to Know About Cross-Examination

Instead, most lawyers need to know one rule when it comes to cross-examination. Which is: ask ONLY leading questions. Do not start with “state your name.” Instead, say “your name is Smith, isn’t that true?”

The goal of cross-examination is to have the attorney testify and the witness just affirm. (So the attorney must know the answers to the questions ahead of time.) When asking very basic questions at the beginning, asking in a leading format puts the witness on his or her heels, afraid to offer up much voluntary material (which will not be beneficial to the cross-examiner). If the witness does not answer “yes” or “no,” the attorney should object and ask the court to inform the witness to answer “yes” or “no.” At this point, the witness is likely to submit to the show.

In Hayne’s case, he didn’t even need to know the answers to the questions. By making the witness out to be a perverted liar from the beginning, he could say anything and the jury believed it over the denials of the witness. That’s not a good thing in the pursuit of justice, but it makes for an interesting read.

So is all fair in love and war?