Anatomy of A Trial: Cross-Examination with Attorney and Author Shane Read

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[00:03:01] That's happymammoth.com and use the code MSHEAT for 15% off today. We talk about a criminal trial as if it was a single event. But, of course, that's not entirely true. A trial is made up of multiple parts, starting with jury selection and going all the way to the delivery of a verdict. Not all of these stages of a trial always get attention. But each of them can be tremendously important.

[00:03:27] But if you are not an attorney, it can get confusing trying to understand these stages of a trial and exactly why each is a crucial part of the process. That is why we have decided to launch a new occasional series we are calling Anatomy of a Trial. In each segment, we will talk to an experienced trial lawyer who will go in-depth with us about a particular piece of a trial. Our expert today is Shane Reed.

[00:03:54] Shane has decades of experience in civil and criminal trial work as an assistant United States attorney. He is also one of those attorneys that other lawyers turn to when they want to improve their own skills. Shane has written popular textbooks on persuasion, deposition, and trial skills. We highly recommend all of them. We will be talking with Shane about cross-examination. What are the rules and limits?

[00:04:21] How can an attorney hold the jury's attention? In real life, are there ever any dramatic Perry Mason moments where a witness spontaneously confesses during cross-examination? My name is Anya Kane. I'm a journalist. And I'm Kevin Greenlee. I'm an attorney. And this is The Murder Sheet. We're a true crime podcast focused on original reporting, interviews, and deep dives into murder cases. We're The Murder Sheet. And this is Anatomy of a Trial.

[00:04:50] Cross-examination with attorney and author Shane Reed.

[00:05:38] Shane, thank you so much for joining us today. We really appreciate you coming and speaking to us for the show. Can we start out by just having you tell us a bit about yourself and your sort of legal background and experience? Sure. I've been a U.S. attorney or assistant U.S. attorney for about 30 years doing civil defense work for the government and also criminal prosecutions both in Dallas and Washington, D.C.

[00:06:04] I've written a lot of textbooks for trial lawyers on trial skills and cross-examinations. I've been an adjunct professor at SMU, and now I'm a trial consultant and public speaking consultant where I help trial lawyers and business professionals with their persuasion skills. So that's the short version of what I do. Let's start with a super, super basic question. What is a cross-examination? What does its function? Right.

[00:06:32] So it's really the truth engine, I believe, and I think almost every lawyer would agree, in the courtroom. And so it makes our country unique from other countries around the world. It's this ability in a courtroom to ask questions of the opposing party under oath to get to the truth.

[00:06:54] And you, as the lawyer, have the right to cross-examine them, which just means ask questions and get answers depending on what the issue is at trial. So if it's a criminal trial, obviously what makes America great is the defense has a right to cross-examine the government on its evidence that they're using to prove you guilty. And that's not true in a lot of places. So that's what the cross-examination is.

[00:07:21] What are some effective ways that an attorney can prepare for cross-examination? It depends on whether it's a criminal trial or a civil trial. So I think you're, knowing the nature of this podcast, let's focus on criminal trials. And if you want to explore the civil aspect, we can. But in a criminal trial, the defense attorney has the official paperwork, the documents, the police reports, the exhibits.

[00:07:49] But they don't get the chance, like in a civil trial, to take someone's deposition and get sworn testimony from all the witnesses so that by the time of the trial, there are really not that many surprises. At a criminal trial, a lot of prosecution witnesses won't talk to the defense investigators.

[00:08:09] That defense lawyer is at a real loss as to what can happen at trial because a lot of witnesses have the right not to speak to a defense investigator. So their cross-examination is both a discovery, trying to find out what information they can get, and then secondly, what information can I get that I know that will support my case? And we can go into more detail about that.

[00:08:36] But that's kind of the structure of what a defense attorney is trying to do. Discover stuff because he hasn't had a chance or she hasn't had a chance before the trial. And then secondly, disprove the government's case through questioning of their witnesses. I do want to follow up. We are mostly interested in criminal cases here. But just because I'm curious now, can you tell us a bit about how the civil cross-examination can look a little bit different?

[00:09:02] The civil is almost different completely because prior to trial, if you're a defense attorney or plaintiff's attorney, you can say, I want to take the depositions of 20 people and a deposition is sworn testimony under oath where you can ask them just about anything that's relevant to the case. So you can really get rid of any surprises by the time you get to trial. Who was there? Who saw it? Who was at the meeting? Give me more documents.

[00:09:32] Everything you could possibly want, you can ask for and generally get if it's relevant to the lawsuit in a civil case. So by the time of the trial, the attorney has really one goal, and that is to prove their case or disprove it. And you know the answers to almost every question you could ask because you had a chance to ask it before the trial, if that makes sense. And on the flip side, I guess I need to add this.

[00:10:00] If you're the government prosecutor, there are a lot of unknowns in your cross-examination because you, well, obviously you can't cross-examine the defendant before trial, but even defense witnesses, they won't talk to you. So there are a lot of surprises on both sides for prosecutors and defense attorneys in criminal trials. You talk about surprises. Of course, the old cliche is you never want to ask a question that you don't know the answer to.

[00:10:28] So how do you balance that with, there are surprises, there are things you just don't know. That's a great point. So in a civil trial, I would say that is the golden rule. You don't ask a question you don't know the answer to unless the answer, whatever it is, can't hurt you. For example, you know, what color shirt are you wearing today? It doesn't matter what they say. That answer won't hurt you.

[00:10:55] In a criminal trial, you have to ask questions you don't know the answer to because if you don't, you might miss something that could win the case for you. So there is a risk that you'll get a damaging answer, but it's a risk you have to take because otherwise there's just going to be this big black hole that your client, if you're the defendant, is depending on. And less so for the government because you've got more resources generally to investigate better.

[00:11:24] So I would say for the prosecution, Kevin, that rule is more true. You should know your case before you get to trial. You've had the luxury of a grand jury investigation and all this other stuff to help you. Defense attorney, not so much. Usually less resources and government witnesses less likely to talk to you. And so you have to ask those questions.

[00:11:52] It's a risk and you'll get burned a few times, but you've got to take it and just move on. In a criminal trial, whether you're the prosecution or the defense, oftentimes cases can be very much sprawling and have a lot of different issues at play. And then, of course, there's so many different witnesses that you may need to cross-examine. How do the attorneys on both sides sort of boil down and focus what they need to hone in on

[00:12:19] when it comes to cross-examining people? Well, I always believe in the rule of three. Let's have three themes for our cross because jurors understand information that's grouped in three. I would say most attorneys make the mistake of, Anya, what you said is have a sprawling prosecution or a sprawling defense. Not good.

[00:12:46] Jurors want to get to the truth and they're going to stop paying attention if you did put on a sprawling case. So being organized is a huge technique that I train lawyers on because that's the key to the persuasion battle. And so cross-examination, I say let's have three themes. Let's start strong, end strong, make it interesting because once you're not interesting, the jury's not paying attention.

[00:13:14] Kevin and Anya, you are probably studied or at least familiar with the O.J. Simpson trial, right? That case lasted 11 months. The jury was sequestered in a hotel, virtual prison. I think they had some visitation rights occasionally on the weekend, but not regularly. So they're in prison in a hotel for 11 months while the prosecution sprawls on and on, Anya, like you were talking about.

[00:13:43] And in the closing argument, Marsha Clark, who is the lead prosecutor, the first words are out of her mouth in that closing argument were, ladies and gentlemen, jury, we apologize. We took longer than we should have. And we're sorry for that. And, you know, after 11 months in jail in a hotel, that's not good enough, right? And that apology is the reason they came back with a verdict in four hours.

[00:14:10] They decided long ago and burned the prosecution for their inadequacy and not being better organized. Yeah, you make a great point about how obviously the whole point of everything is to play to the jury. Because it's how the jury perceives things that's obviously going to ultimately make the final decision. Is there a danger in cross-examination if you're too aggressive and you seem like a bully? Do you alienate the jury?

[00:14:39] Of course you do. So I tell everyone, and it's just obvious from any one of your listeners, you have to be authentic. So if you're bullying a mother of a defendant, that's not good if you're the prosecutor, right? Even if you're bullying, let's say you're a defense attorney, you're bullying one of the lead investigators for the prosecution and you just come out as being a bully,

[00:15:08] the jury perceives, well, they want to get to the truth. And if you're a bully, that offends, well, it can offend some people that may be on the jury and you don't want to do that. And also you just want to, you don't want to be biased. So I think when you say the word bully, I think it's someone who's overly emotional, overly aggressive, instead of someone who's firm, has conviction and is seeking the truth. That's what jurors want to see out of the attorney from both sides.

[00:15:37] And no one wants to be bullied. And if you bully, they're going to have sympathy for that person on the witness stand. Even if the lawyer who's bullying is right, everyone's fuels for the person who's getting attacked. Like, okay, it's okay to get to the truth, but you don't need to make it personal. So I always train attorneys, be professional, not personal, because that doesn't sell well to the jury. So be professional, not personal.

[00:16:05] You mentioned that juries want to see sort of this quest for the truth, regardless of what side they're looking at, especially in a criminal trial. And I'm curious, what other things do juries look for in cross-examination? What tends to play well with them? And what, you know, I guess, what can attorneys learn from that? I know that's a great point. So what happens, and for your listeners who, I guess, have seen trials or, you know, there's some real ones on streaming.

[00:16:34] But Hollywood, here's the context. So you have direct examination where, let's say, the prosecution puts on a witness, and they're asking a lot of friendly questions to support their case. Cross-examination, as soon as that defense attorney stands up, the jury is waiting to see if the witness told the truth undirected or has exaggerated, made misstatements, or had a bad memory.

[00:17:00] So it is a key moment at the very beginning of cross-examination because the jury is paying attention. Can that attorney ask questions to make his or her point very strongly? So it's a huge moment. It's got to be done effectively because the jurors are making quick decisions. And if it takes you five minutes to kind of get warmed up and ask some interesting questions, the jury's long gone, right?

[00:17:27] Everyone's multitasking, figuring out what they're doing for dinner, why they're missing work sitting on this trial, and why is the attorney dressed like he or she is, and lots of other things going through my mind. Got to make it interesting right there at the very beginning of the cross. What are some other things that it's important for an attorney to do during cross-examination to be effective and to maintain juror interest? Yeah, Kevin, that's a great question.

[00:17:54] So what I have seen and what I train lawyers with is use visual aids, use some exhibits. Don't only cross-examine with questions, but use photographs of the crime scene or the police report to, and we can talk about that in a minute, how to undercut a police officer.

[00:18:14] But you want to use visual aids so the jury not only hears your questions, hears the answers, but also sees documents, photos, whatever it might be that helps support the point you're trying to make. So we've got the rule of three. We're going to have three points on cross. We're going to start strong because that's what the jurors are looking for, that moment right after the witness has told their side of the story.

[00:18:38] And the third thing, let's use some visual aids to engage both the auditory skills of the jurors and also their visual skills because that's how people learn best generally is seeing and hearing things at the same time. You said something there I have to follow up on. You're talking about a police report. Can you elaborate? Right.

[00:18:59] So I think your listeners would be interested in, if you're a defense attorney, one advantage is that I'm on a police report. There are always going to be either little mistakes, big mistakes, omissions, because humans are not perfect.

[00:19:20] And what the defense attorney has the advantage of doing is taking a police report and having the officer on the stand and just asking him a series of questions of what they did not include in the report that they could have. And the jurors are thinking, oh, well, I would have liked to have seen that in the police report. I would have liked to have seen that. And now, did you not put all the officers who are on the scene? No one's perfect.

[00:19:49] And that's a great line of attack for police officers because they aren't perfect because they're humans. And that's a good strategy. Defense attorneys use in their cross-examination. So using that document to show the jury, hey, errors are made. And maybe if errors are made and you can put enough errors together, you've got reasonable doubt, which is how you avoid a conviction.

[00:20:12] One thing when we're watching trials in Hollywood, in fiction, there's always talk of people opening the door and cross-examination and certain things be allowed in. I'm curious, what are the boundaries for cross-examination, though, typically? What is not allowed? What should not be brought up? Are there general rules around that? Right. Anya, that's a big question.

[00:20:34] I guess the simple answer is, on cross, you can ask questions about any subject that were brought up on direct testimony. So whoever it is, prosecutor or defense attorney, is listening very carefully to what questions were brought up on direct. And if they say, hey, you know what? I've got a bookshelf with books on top of it.

[00:20:59] On cross, Kevin and I could go into every book you have on the top of your bookcase because that was brought up on direct testimony. So here's how opening the door works. Say the judge says, I'm not going to allow anyone to talk about the books on the top of Kevin's bookshelf. Okay, so the judge has ruled and he can't be brought up.

[00:21:23] The person who gets that ruling, if they open the door, meaning they hint at what's on top of the bookcase or suggest there's something else on top of the bookcase, that's called opening the door. And now on cross, you can say, well, opposing counsel just asked you about something that might be on the top of the bookcase. I want to go into that. So the other attorney is going to scream and holler and say, your honor, your honor, that's off limits. We've already got a ruling. You said we can never talk about what's on top of the bookcase.

[00:21:53] And the judge will go, well, you know what? You kind of got close to it. And I think you opened the door and that's your mistake. And now that you've brought it up, I'm going to give the other attorney the right to ask as many questions as she wants about what's on top of the bookcase because the jury needs to know. And you blew it by opening the door. Another thing about Hollywood, you watch old episodes of Perry Mason.

[00:22:20] You often see in cross-examination a witness will break down and make all sorts of damaging admissions. Obviously, that's not something that really happens in the real world. But is that a problem? Do jurors expect to see something big and dramatic? And if you have something that's big and relevant that's not as inherently dramatic as a confession, how can you make sure that the jurors can really grasp and appreciate it?

[00:22:51] That's a great point, Kevin. You can't explain to the jury that you're not going to get a confession. And you can't explain to them that this isn't Hollywood. But that is a big myth.

[00:23:04] And a lot of lawyers make the mistake of trying to get the confession and they start bullying and they want to get that witness to admit that they've lied on the stand or that they have committed the crime or that they sold drugs or that if they're a police officer, that they're incompetent or they're lazy. I mean, right. Who's going to ever admit that on the stand?

[00:23:29] But instead, you can make points such as your police report wasn't thorough. It's not as detailed as it could have been. It's not accurate. Let me talk to you about the things you left out of your police report. So those are themes and they're good, strong themes. And that's the best you can hope for. And I don't know how you explain that to the jury that this isn't Hollywood other than with your voice. You show that it is important. And if it's not important, why are you cross-examining them?

[00:23:59] So another question I'll anticipate from you is you don't always need to cross-examine. I mean, some of the best decisions are made not to cross-examine someone. So one example would be if you're a prosecutor, and I had this many times, and the mother of the defendant takes the stand and starts talking about her love for her son and that he wasn't there or she wasn't there.

[00:24:29] And so now he's got an alibi because he was with her or whatever. I mean, you have to decide, are you really going to cross-examine a mother who's crying on the scene? And what does that get out of you? What does that get for you? Or do you assume that the jurors understand that a mother would lie for their son when his son's facing jail time? And it depends on the case and how much evidence you have otherwise.

[00:24:58] But sometimes the best thing is, oh, I'm so glad she didn't cross-examine the mother who was crying and knew that they had a strong enough case without, Kevin, in your words, bullying a mother. So why do that? What other sorts of cases are there where it would be better not to do a cross-examination?

[00:25:19] I think those are the ones that come to mind where you have a loved one who is clearly biased and it's so obvious, and you really have no proof to show that they're lying other than that they are biased. So some attorneys might go, well, isn't it a fact that you love your daughter? Yes, it is. Isn't it a fact that she would do anything for your daughter? Yes, it is.

[00:25:48] Isn't it a fact that you're still close to your daughter? Yes, it is. Isn't it a fact you realize that she's being charged with treason or whatever it is? Yes, I do. So you kind of make those points to the jury that that's why she would be motivated to lie for her daughter. But you don't go to the point like, well, it's true, you even lie for your daughter. I think that's kind of like stupid and bullying and what's the point of asking that?

[00:26:13] But Kevin, your point on other situations where you wouldn't cross, the only other time you wouldn't cross is if the other attorney has done such a bad job that they've actually helped you and there's no need to do it. And you risk by asking questions, giving that witness a chance to correct their mistakes and backtrack on what they said on direct examination. So that would be the other big instance. I mean, that's pretty rare.

[00:26:41] You'd have to have a bad attorney that would prep a witness so badly that they actually help you. But I can't recall any specifics, but I remember seeing it done. So it has happened. Absolutely. That sounds like a bad sign if that's happening. Yes. You don't want to see that. One element of cross-examination that's interesting to me is that it's not always necessarily the last word.

[00:27:07] Can you tell us a bit about redirect and what that can entail and sort of the kind of almost seems like a bit like a tennis match that can happen between the two parties when we're seeing this go on? Yeah. I mean, that's a great point. So for your listeners, what happens, you have direct where the witness tells their side of the story to the lawyer, cross with the other attorneys trying to get them to undercut what they said on direct.

[00:27:33] And then redirect gives you the chance to clear up any confusion that was raised by the other attorney on cross-examination. It's super powerful. Whenever I'm a plaintiff attorney or a prosecuting attorney, I just couldn't wait for redirect because it's a chance to say, Miss Witness, now Anya asked you a question about omissions in your police report. She didn't give you a chance to fully explain why you left out that information.

[00:28:03] Now, let's redirect. I'm going to give you that chance to explain to the jury why did you not write down every detail at the crime scene. And the witness will say, well, that's because it's a police report. It's not a thesis. It's a summary of what happened. And of course, I couldn't put everything in. And so now, Anya, I've made you lose a little credibility because on your cross-examination, you didn't share with the jury all the facts.

[00:28:31] And as a trial consultant, I would tell you, Anya, hey, on cross, you're the truth teller. So you don't want to slant it. You've got to sit down and let the jury know they've seen the full picture on cross-examination because there's redirect and you can get really hurt if you're not the truth teller. That makes a lot of sense. You don't want to burn down your credibility with the jury just to kind of get some temporary points, it sounds like. Well, that's a great point.

[00:28:58] Yeah, so temporary points are very temporary. And once you lose your credibility, it's over and you'll never get it back. And the jurors will no longer listen to you because you've lost your credibility. It's huge. It's everything. And a lot of attorneys forget that because they go for these temporary victories and don't see the big picture, Anya, like you just mentioned. So the follow-up question to that naturally is recross.

[00:29:28] Where does that come in and how can that be an opportunity for attorneys to sort of reclaim the narrative at the end of the day? That depends on the judge. I would say most courts do not allow recross, but it's up to the judge and she can do whatever she decides. If it is recross, I mean, there's a lot of strategy we don't have time for.

[00:29:51] But the general rule is if there's recross, when I'm doing redirect, I'm thinking, okay, anything I say, then they'll get another chance to have the last word. So it shortens my redirects because I don't want to give in too much of the last word for recross. So recross is your chance to ask questions that were brought up on redirect, but nothing else. You can't go back to the original direct on recross.

[00:30:19] So using our previous example, it would be Mr. Reed asked you some questions about why you didn't put everything in your police report. You've given an explanation. Now I want to ask you, you know, once something specific that was brought up on that redirect in my recross, does that make sense? Absolutely. But I think the reason a lot of judges don't allow it is it could go on forever.

[00:30:45] You know, redirect, recross, I've never heard of a redirect of a recross, but right, they just want to end it. And the reason they give redirect generally is the plaintiff and the prosecution have the burden of proof. And so it gives them the advantage because they have that higher or they have the burden or a high burden to prove their case where the defense generally doesn't have to prove anything.

[00:31:10] So we allow the other side to have more opportunities to question the witness. Can an effective cross-examination of crucial witnesses be enough to create reasonable doubt and win a case? Right. That's a great point. And yes, defense attorneys depend on that. I didn't follow the Trump trial too closely, but, you know, they didn't put on many witnesses.

[00:31:36] And so it was all dependent on cross-examination of the prosecution's witnesses. And that's how most criminal trials go. So as you know, defense, defendant does not have to put on any witnesses, any exhibits, doesn't have to testify. So cross is the engine for getting to the truth. And that's what defense attorneys rely on, knowing that if you put your client on the stand at a criminal trial,

[00:32:03] the prosecutor is just so seasoned in cross-examination. And that poor defendant generally is just going to get beaten up, not by a bully, just by someone who's got a whirlwind of facts. And that's why defendants don't rarely testify. It's just never good. Is there any way for defense attorneys to sort of really prep a witness like that?

[00:32:29] If they determine that the risk is worth having their client testify, how do you prep someone in that situation for cross-examination? How do you sort of counteract that? Right. So, Anya, you're correct. I mean, it would take a lot of preparation, which is fine. I mean, defense attorneys have the time and the skill to do that.

[00:32:48] And you'd have to just judge your client on, I mean, one factor is if, hey, if the prosecution is going to win and your only chances to have your client testify, then of course you would put her on the stand or him on the stand. If it's a close case, the risks are just not worth it. I don't think, I mean, the client gets to make the decision. So it's up to them. I mean, I don't want to say the word sophisticated, but the more, I don't know.

[00:33:18] I mean, the battle is you're going up against a prosecutor with a law degree and years and years of cross-examination experience. And then your client is going out there for the first time into an arena. It's very uncomfortable. And then Anya and Kevin, you know, even if you look uncomfortable, jurors pick up on body language. So that's another thing you'd have to do in the prep. So your client may be telling the truth, but are they going to convey it like they're telling the truth?

[00:33:46] Are they going to look nervous and so the jury doesn't hear their message? So the short answer is, yes, they can be prepped. Yes, they can tell the truth convincingly. Yes, it takes some work. You just have to judge the risk and reward of doing that, depending on who your client is and the strengths of the other side.

[00:34:07] We've talked a lot about how, you know, people can sometimes get the wrong idea from Hollywood courtroom dramas around cross-examination in particular, because it often is used as shorthand for like a very dramatic moment in a trial. I'm just curious, and through your work and through teaching people about this, what are some other common misconceptions that you've come across about cross-examination, either from lawyers or just members of the public?

[00:34:33] I think lawyers think that if I have 10 points I can make on cross-examination, minor, medium, major, I'm going to use them all. And that would be an effective cross-examination. So that's a huge mistake just because jurors' attention spans, like, not that they're different from us. There's human beings and there will be, they'll lose interest if you're not making a major point.

[00:34:59] I think the second misconception is length of cross-examination. I'm going to do a two-hour cross and the jury's there and they're paying attention and they've been instructed by the judge to pay attention to the evidence. Hey, no, no, no. They're human beings. They will lose interest. And if you're not interesting for two hours, that's not good. So they're going to lose that.

[00:35:24] I think a third mistake they make, which is very, and I've made this mistake, you get very emotional because you see that witness is not telling the truth and you want so badly to prove that to the jury that you get into an argument with them instead of proving your points.

[00:35:45] And so an argument is just kind of getting personal and it's very easy to do because no one likes people who are evasive, dodging questions, saying, I don't remember when they should remember and I don't know when they should know. And gosh, that gets so aggravating, right, when you're in the courtroom. And you've got to control that because the jurors are looking to you to be the professional and the truth teller.

[00:36:13] And if you start arguing with the witness, you're not doing your job and distracting from what you should be doing, which is getting to the truth. Can it be a good strategy during your opponent's cross-examination to issue objections just to throw them off the rhythm? That's a great question. So that is definitely, I think, a TV thing.

[00:36:38] You know, objection, objection, objection, and no, because jurors hate objections because they think that is stalling and avoiding getting to the truth. So great trial lawyers will rarely object because jurors don't like it and they don't want to be the one when a question's asked and you stand up, objection, and the juror's like, just let the witness answer. Why are we doing this? Not a good idea.

[00:37:05] The only time really, Kevin, to do it is if you're trying to preserve error, which means if it's not, it gets into an issue that an appellate court would want to look at, you often have to object to preserve it for the appellate court. So, I mean, for your bookcase, for example, say something that was highly inflammatory on your bookcase that's unrelated to what we're talking about.

[00:37:31] If I don't object and that question and answer comes in, then I kind of waived it for appeal and I can't say, well, we shouldn't have got into the top of the bookcase. And the appellate court's going to say, well, Shane, you should have objected and you waived it. So, you know, tough luck. That's why you would need to object. But otherwise, lawyers make the mistake of doing it on minor, minor things that have no outcome in the case or the appeal.

[00:37:59] Do you have any standout memories when it comes to cross-examinations that you've done that have been, you know, super interesting or had an outcome that you weren't expecting or ones that you've observed others do? Yeah, I don't like to tell my own war stories because I think they can be kind of anecdotal and not necessarily, I guess they're interesting, but not a principle to rely on. But what I have seen, I mean, let's go look at the O.J. Simpson case, right?

[00:38:28] Your viewers are probably too young to remember it, but for those who saw it and those who've heard about it, there was this big issue of a bloody glove on the crime scene and then a bloody glove that was found at O.J. Simpson's house. And as we all know, the question was, would those gloves fit O.J. Simpson's hand?

[00:38:49] And so Christopher Darden had to make a decision, am I going to ask the court to order O.J. Simpson to try on the gloves on national TV, you know, in front of millions of people? And Christopher Darden's thinking, well, it's the same glove. We know scientifically it's the same glove, so it will fit.

[00:39:11] And what he didn't think about, well, he considered it because Marsha Clark, from what I've read, warned him about it. But was that once you give O.J. Simpson a chance to put on a glove, right, Kevin and Anya, what can the defendant do? Well, we can all make a glove not fit if we try and stick our fingers in. And instead of putting him in straight, we've got our fingers curled and then we put it in. And if we've all seen the video, he's trying to pull it down.

[00:39:40] And there were studies, not studies, but stories at the time that O.J. Simpson had been cracking his knuckles in jail knowing that this might come up. So his hands were actually swollen. I mean, what is a fact is the gloves had been in evidence for at least a year. And so they dried and become stiff.

[00:40:01] And the worst thing about it that Darden knew, and so did Marsha Clark, is that to try on the gloves, he had to have latex gloves underneath, well, on his hands before he even put the glove on. So there was no way they were going to fit because he had latex gloves on to preserve the evidentiary nature of the glove.

[00:40:23] So that's one of the most famous examples of, I mean, it's kind of a quasi-cross examination, but ordering the defendant to try on the gloves, him wiggle around in front of national TV. Christopher Darden said, well, can you pick up a pencil with it? And O.J. Simpson's struggling to put in a pencil, and he's got this expression to the jury like they don't fit, even though he can't say it. So a total disaster.

[00:40:48] And Ani said, you know what Johnny Cochran said in his closing argument about the gloves? What did he say? If the glove does not fit, you must acquit. Right. So he gave, Darden gave the defense a theme that will stand for history of all time. If it doesn't fit, you must acquit. And that's what happens.

[00:41:12] Can I just say, Shane, thank you so much for that, because I, in a recent episode, really embarrassed myself when Kevin brought up Cato Kalen. I had no idea who that was. So you redeemed me in this case. Good. It's fair. I'm wondering, is there anything we didn't get to or didn't cover when it comes to cross-examination? How attorneys can do the best job of it, mistakes to avoid anything like that?

[00:41:41] I think we covered most of it. I think I would just remind your viewers that it is the most important part of a trial. A lot of them, if you walk into a courtroom, are very boring because lawyers just think they're kind of on this fact-finding, gathering mission. And jurors are not processing it that way. They want you to ask important questions, get to the truth.

[00:42:08] And if you don't have them, right, don't ask them. So they should be better if you walked into a courtroom and they're not as good as they should be. But they're not like TV where you get confessions. It's major points that help your case or undercut the other person's case. And that's the key to a successful cross.

[00:42:28] I guess one follow-up is that, you know, for our viewers at home who don't have a legal background and don't necessarily have a lot of experience beyond maybe watching some high-profile cases on TV, what are some things that they should look out for when they're assessing how both sides are performing in a criminal cross-examination?

[00:42:47] Oh, the easiest test is if you go on YouTube and watch a live trial or a recorded trial or wherever they're finding their access to trials, you should immediately know what the point is the lawyer is trying to make. And if you don't know, it doesn't matter what trial is, you should tune it in and it should be very clear to you what point she's trying to make on cross. And if it's not, the lawyer is not doing a good job.

[00:43:14] This idea that, oh, I'm going to ask kind of 20 questions that no one's quite, no one is going to quite know what I'm going to ask or understand, but I'll tie it up on closing and say, hey, remember two weeks ago when I asked Kevin about these five points and he gave me these five answers? Well, now in closing argument, I'm going to tell you what that all meant. So, Anya, the problem with that is the jury's long since forgotten what those questions are.

[00:43:45] They've already made up their mind by closing argument. So what are you doing? So your viewers, I think, can decide who's good and bad as far as lawyers by, do I understand very easily what they're trying to elicit on cross-examination? We have a lot of people in our audience who are lay people, just want to learn more about the law.

[00:44:08] We have a lot of people in our audience who are attorneys and always want to try to get a bit more information about how different things are done or can be done. If there's anybody out there that wants to get more information about you or just even how to be a better public speaker, where can they go? Oh, that's great. Thank you for that. I'm on LinkedIn and then my website is shaneread.com, S-H-A-N-E-R-E-A-D.com. You have books for lawyers?

[00:44:37] You have books for regular people who just want to do a better job of public speaking? So highly recommend it. Thank you. Yeah, and my books are on Amazon if they want to check those out. But thank you so much, Kevin and Anya. Absolutely. Thank you so much. This is highly informative and we just so appreciate you sharing your time and experience with us. Good. I loved it. So enjoyed meeting you and I've been so excited to be on this podcast. So I really appreciate the invitation. We want to thank Shane again for taking the time to talk with us all here today.

[00:45:07] We really enjoyed the conversation. You can find out more about Shane and his books at shaneread.com and that's really worth a visit. It's a terrific site and his books are incredible. We'll also link to some of his books in our show notes. Thanks so much for listening to The Murder Sheet.

[00:45:29] If you have a tip concerning one of the cases we cover, please email us at murdersheet at gmail.com. If you have actionable information about an unsolved crime, please report it to the appropriate authorities. If you're interested in joining our Patreon, that's available at www.patreon.com slash murdersheet.

[00:45:56] If you want to tip us a bit of money for records requests, you can do so at www.buymeacoffee.com slash murdersheet. We very much appreciate any support. Special thanks to Kevin Tyler Greenlee, who composed the music for The Murder Sheet, and who you can find on the web at kevintg.com.

[00:46:20] If you're looking to talk with other listeners about a case we've covered, you can join The Murder Sheet discussion group on Facebook. We mostly focus our time on research and reporting, so we're not on social media much. We do try to check our email account, but we ask for patience as we often receive a lot of messages. Thanks again for listening.

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