A well-planned cross-examination cuts off escape routes for the witness.

When you are attempting to impeach a hostile witness, you will want to anticipate the various explanations that the witness may provide. These explanations will seek to minimize the damage done by the impeachment. The possible explanations can be anticipated and dealt with prior to the impeachment, then the result can be a more effective cross-examination.

Examples of this strategy would be: Before cross-examination on an omission in a report, you would cross-examine on the importance and if applicable the professional or legal duty to make a complete and accurate report; and before cross-examining on a prior inconsistent statement, you would question the witness matters such as the formal nature of the statement, the importance of telling the truth at the time, and the fact that it was closer in time to the actual events.

The types of foundations referred to above would make it more difficult for the witness to discount the inconsistency as a minor oversight. Ideally, this strategy is used prior to the witness realizing the direction that the cross- the examination is going and is set up in a manner in which the cross-examination initially makes the witness appear to be witness appears to look good by appearing to be professional. Those initial responses are then turned on the witness to expose the fact that he was not following his own standards

The strategy above would have the witness first agree that they had acted professionally, followed their training and protocols, and then the witness would be confronted with an omission that is inconsistent with their professional practices and training. Another use of the strategy, of cutting off escape routes, would be to anticipate that a witness might try to deny or downplay a damaging prior statement. In the civil proceedings against O.J. Simpson, there was a statement attributed to O.J. Simpson in a book in which he allegedly says, “I think I lie pretty effectively”. The book was not written by O.J. Simpson, so the cross-examining witness anticipated that there might be an attempt to deny knowledge of the comment. The lawyer lays a foundation to either deny escape routes to the witness, or at least render these escape routes to be implausible. He does this by referring to the fact that the witness’ image was important to him, he approved the book, and never took any legal action objecting to anything in the book:

Q. Your image has always been important to you, sir, has it not?

A. Who I am, yes.

Q. And you also have been aware of your image, right?

A. Yeah. I always know people like me, yes.

Q. You wrote when you first began your football career back in the first book that you authored, "I have been praised, kidded and criticized about being image-conscious, and I plead guilty to the charge," true?

A. At that time, yes.

Q. And you wrote that, quote: "I tried all the images." End of quote. True?

A. I don't recall that, no.

Q. It's in your book.

A. I didn't write the book.

Q. You approved the book, right?

A. Yes.

Q. You wouldn't allow anything in there about you to remain if it were false, would you?

A. I think that's a certain license people take when they write books and --

Q. You tried --

A. -- that was the license that was taken.

Q. You tried all the images, did you not?

A. No.

Q. And did you also write that the ghetto makes you want to hide from your real identity, from cops, from teachers, and even from yourself, and it forces you to build up false images humble, swaggering, casual, or tough in order to handle your enemies and impress your friends. That's what you wrote?

A. No, I didn't write that.

Q. And that's in your book, true?

A. It's in my book, but I didn't write it.

Q. Now you disavow that, right?

A. I happen to believe a lot of that sentiment, but I didn't write that, no.

Q. You agree with it?

A. A lot of it, yes.

Q. You agreed with it at the time and you agree with it now, true?

A. In the ghetto, I agree that you have to at times hide behind a tough exterior. Yes, I do agree with that.

Q. Mr. Simpson, you're not saying that you don't agree with what was put in the book under your name or about your -- all about you, the first book ever was written -- you're not saying that to this jury?

A. In general, I okay'd the book.

Q. Okay.

A. A agree with a lot of the sentiment in the book, but I didn't write those exact words.

Q. You didn't take any legal action to prevent this book from being publicly issued?

A. No.

Q. Or to take it off the market, did you?

A. No.

Q. Okay.

Q. And by the way, in that book, you also wrote, quote: "I think I lie pretty effectively," did you not?

A. No.

Q. You are aware that that quotation is attributed to you in your book, are you not?

A. Now I am, yes.

Q. "Now" means when? Right now, the first time?

A. Yeah.

Q. You never saw that before?

A. Well, I think I read the galley of the book before it went to press in 1969, and I haven't read it since.

Q. Page 57, quote: How can you tell me -- asked -- I'm referring to you -- quote: "I think I lie pretty effectively." End of quote. You don't accept that when you lie, you look so serious and intent on what you're saying, it gives you away. When you're saying something and you're laughing, that's the only time I can tell you're telling the truth, and you said I figured that it was something to keep in mind for my acting career, right?

A. I don't know, I don't recall saying that, but --

Q. You are a pretty effective liar, are you not?

MR. BAKER: Object, Your Honor, that's argumentative.

THE COURT: Sustained.

Q. (BY MR. PETROCELLI) You lied to cover up the 1989 incident with Nicole, true?

A. No.

Q. You told Roy Firestone on a national television interview on ESPN the following: We were both guilty. No one was hurt, it was no big deal, and we both got on with our lives. Did you say that on television, did you not?

A. Yes.

Q. And that was absolutely false, true?

A. I disagree with you on that.

Q. Did Nicole get hurt?

A. She had some bruises.

Q. Are you minimizing her injuries now, sir?

A. I'm not minimizing my action. But we got on with our lives.

Q. I'm talking about your statement no one was hurt, that was --

A. Nicole --

Q. -- a false statement, true?

A. Technically.

Q. It was a lie?

A. I disagree with you.

Q. It was false?

A. I disagree with you.

Q. It was true?

A. I disagree with what you're saying.

Q. Was it true or false that no one was hurt? Answer my question.

A. Nicole, yes, she was.

Q. So Nicole was hurt, right?

A. Yes.

Q. And you did not tell the truth about it and you attempted to minimize the incident to cover up, true?

A. It was a sports show, and yes, I most definitely on this sports show minimized what -- minimized what happened in my personal life, yes. But not to the police officers, I didn't minimize it.

MR. PETROCELLI: Move to strike.

Rufo et al vs. Simpson, California Superior Court, November 22, 1996

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