A Great Moment in Trial Lawyering

Submitted for your approval: my recall of a minute of Richard “Racehorse” Haynes’s cross-examination today of the cooperating codefendant in the murder case he’s trying. Richard is a great listener and a very patient questioner.

Haynes: Then you appealed your case.
Snitch: Yes.
Haynes: Because you thought the government owed you something.
Snitch: No, because I thought my lawyer did a bad job.
Haynes: He did a bad job in getting you this deal?
Snitch: He didn’t call my witnesses.
Haynes: What witnesses didn’t he call?
Snitch: My mother. My sister.
Haynes: Your mother knew about the crime?
Snitch: No. I lied to her about it.
Haynes: Like you lied to the police about it.
Snitch: Yes.
Haynes: Because you were trying to avoid getting in trouble.
Snitch: Yes.
Haynes: And you wanted to bring your mother in to court to lie for you.

Ouch. This is just one taste of why witnesses have described cross-examination by Richard as “death by a thousand cuts.” During the hour or so of cross I was able to watch today, he probably made 80 such cuts.

By the way, Richard did not know the answers to his second, third, fourth, or fifth questions. “Never ask a question that you don’t know the answer to” is a fine rule for law school trial ad competitions and for civil “litigators” who get to rehearse every cross-examination in a deposition, but a trial lawyer has got to follow his instincts.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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5 Responses to A Great Moment in Trial Lawyering

  1. Matlock says:

    That’s good stuff!

  2. GeorgeH says:

    I was fortunate enough to watch Percy Foreman try a couple of cases in the early ’60s. Watching a master is a whole different animal than a standard criminal defense.

  3. Simon Myerson says:

    It’s a good cross-examination but I’m not sure that your point about not knowing the answers to the questions is quite right.

    He may not have known the answers but they were all none risk questions. The second’question’ was a statement. So was the third. Both were bound to be denied, but if they weren’t no harm would be done. The fourth question was irrelevant in the sense that it didn’t commit him to go further. The fifth was the start of an explanation that could only assist him. If the witness had said his Mother did know about the crime then the attorney refused to allow a witness to give perjured evidence.

    I would say myself that the ability to pick out the no risk ‘win either way’ line of cross-examination is the best thing about this extract. Following your instincts is fine – if they’re good instincts!

  4. Mark Bennett says:

    Simon,

    Thanks for the comment.

    A lawyer who followed the “never ask a question that you don’t know the answer to” dogma would never have gone down this line of questioning. Richard’s style — making the point (that the witness is a liar) a thousand different ways — lends itself particularly well to exploring the unknown answers.

    As to the second and third questions being statements. . . is there a rule that a cross-examination question has to end with a rising intonation? If so, I’ve cross-examined lots of witnesses without asking a single question.

  5. Michael says:

    Keep your eye on this “Racehorse” guy; he’s got the potential to be a very good, maybe great litigator someday.

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