San Antonio Defender by Digital Publisher

DEFENDER SAN ANTONIO

A Publication of the San Antonio Criminal Defense Lawyers Association

VOL. XV ISS. III | NOVEMBER 2014

30 31 32

Tips for Cross-Eaxmination

Cross Examination

Ten Tips For Asking Proper Questions on Cross-Examination

34 35 36 38 4 0 41 42

Rusty Guyer

Raymond Fuchs

Mark Stevens

Cross Exam Tips

Cross-examination

Ten Tips for Cross-Examination

MacCarthy Style Cross-Examination

Adam Kobs

Patrick Hancock Britt Eastland Jamie Balagia

Just a Few Tips

Cross Examination Tips

Re-examining the Ten Commandments of Cross-Examination

44 46 48 50 51

George A. Taylor Eduardo Garcia

Jefferson Moore

Liar, Liar, Pants on Fire!

10 Tips for Successful Cross Examination

Mistakes I Have Made

Cross-Examination Tips

Ten Lessons Learned on Cross-Examination

Rosie Reyes in collaboration with Arlene Gay Charles Bunk

Philip Bozzo, Jr. Robbie Ward

Robert H. Featherston

52 10 Tips for Cross-Examination 54 Cross-Examination Tips 55 Cross-Examination Tips 56 Cross-Examination Hints 57 Cross Examination Tips 59 Ten Personal Rules of Cross Examination 60 Cross-Examination 62 Quick Tips for Cross-examination 63 Cross Examination Hints 64 Some Thoughts on Cross Examination 66 Thoughts About Cross-Examination 68 Tips for Cross Examination 69 Cross Examination 70 Ten Tips for Cross Examination 72 Cross Examination Tips

Gerald Goldstein

Gammon Guinn

Albert M. Gutierrez

Bernard Campion

Don Flanary

Brian Powers

Ben Sifuentes

Stephanie Stevens

Warren Wolf

Michael McCrum

Christine & Mario Del Prado

Alex Scharff

Kristen L. Mulliner

Carl Robin Teague

John “Bud” Ritenour

Board of Directors Anne Burnham Robert Barrera Edward Bartolomei Stephanie Boyd Philip Bozzo John Carrol Mario Del Prado Loraine Efron Joseph Esparza Don Flanary John Fox Paul Goeke Julie Hasdorff Juan Carlos Hernandez Brandon Hudson Nicolas LaHood John Longoria Pat Montgomery Angela Moore Jefferson Moore Joel Perez Robin Teague Aissa Strickland Chad Van Brunt

THE DEFENDER

Letter from the Editor

As the Editor-in-Chief of The Defender, I am confident this edition will provide our members with a valuable resource that should have a place in your office for years to come. This edition is another fine example of the commitment and collaborative effort of our members, and the value that The Defender provides in helping each other be better lawyers and advocates through the shared knowledge and spirit of many. I am especially grateful to Mark Stevens for both his leadership and commitment in making sure that this project was a success. And finally, to everyone that answered the call by authoring a submission, thank you for taking time to do so! And for those who we missed (or those who overlooked the deadline), 2015 will

Editor-in-Chief

be a busy and exciting year for The Defender magazine. There are

Christopher Simpkins

many opportunities available for interested individuals to contribute

Associate Editors Adam Kobs Robert Featherston Warren Wolf Loraine Efron Trisha Morales-Padia If you would like to submit an article to be considered for publication in The Defender, or see about how you can help or become involved with and contribute as an Associate Editor, please email chris@csimpkinslaw.com.

to its on going success, and to become further involved in SACDLA in the process. It takes the effort of many to make The Defender succeed, and The Defender is built upon a great tradition and history of members helping members. If you have content you would like to submit to be considered for publication in the magazine, or interest in becoming a member of The Defender staff please speak up and let us know.

Christopher Simpkins Editor-in-Chief chris@csimpkinslaw.com THE SAN ANTONIO CRIMINAL DEFENSE LAWYERS ASSOCIATION P.O. Box 831206 San Antonio, Texas 78283-1206 (210) 501-2916 sacdla.com

The San Antonio Criminal Defense Lawyers Association P.O. Box 831206 San Antonio, Texas 78283-1206 Telephone: (210) 501-2916 Facsimile: (210) 885-7714

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The Art and Science of Cross-Examination as Taught by the Best Lawyers in San Antonio Mark Stevens

It was the King’s task to cross-examine Alice, but after asking

But don’t despair. While there is no way to simplify this

a single question to his first witness he turned to the Queen

challenging and essential discipline, it is certainly true that

and whispered, “Really my dear, you must cross-examine

the science and art of cross-examination can be taught and

the next witness. It quite makes my forehead ache.” Lewis

learned. Chris Simpkins and I know that some of the finest

Carroll, the nineteenth-century author and math professor

criminal lawyers in Texas practice here in San Antonio, so

somehow discovered what we learn and learn again every

we turned to them and asked for their help.

time we try a case: Cross-examination is really hard. Many regard it as the single hardest skill that a trial lawyer must

Not everyone we asked was able to participate, and some

master, and I wholeheartedly agree.

worthy local advocates were surely overlooked. That said, the response we got was astonishing: 46 of our best and

Not only is cross-examination difficult, it is extraordinarily

brightest made the time to contribute, and their work is

important to all advocates, and most especially to the crimi-

here for you to study and learn from.

nal defense lawyer. Often our clients do not testify, and it is common for the defense to rest without calling any

This edition should remind us all how lucky we are to live

witnesses at all. In such cases, the only way we can tell our

and work in a legal community populated by so many who

story is by cross-examining the state’s witnesses. Without

are willing to give of themselves to teach the rest of us to

effective cross-examination, our clients are defenseless.

be better lawyers. I hope you will take advantage of their generosity and wisdom.

Cross-Examination for Dummies Allen Cazier

Always, always, always lead the witness.

Don’t gamble with your questions. This is another way of saying “know the answer before you ask the question.” Cross-examination is not a discovery proceeding.

VII

Establish a pattern of short factual statements phrased as questions which the witness must confirm with a simple “yes” or “no.”

Know how to impeach a witness when necessary. Be careful that your impeachment does not open the door to something the witness really wants to say.

III

VIII

Keep the questions as short as possible. Three to six words is best. No compound questions.

Be courteous, lawyer-like, and firm, but never condescending.

Do not tolerate nonresponsive, evasive, or narrative answers. Cut them off immediately. Keep control. Think of it as training a puppy.

Know when to stop. One too many questions can be fatal. Sometimes no questions is enough.

Establish the facts that support your theme of the case and then stop.

Did I mention, always, always, always lead the witness?

Thoughts On Cross-Examination Prepared for the San Antonio Criminal Defense Lawyers Association © August 1, 2014

Charles D. (Charlie) Buttsi, Director Emeritus SACDLA

Believe it or not, a successful cross-examination begins when the client first hires us as their attorney. First, we should listen carefully to the client, get their full story, and start right then preparing them for their ultimate cross-examination (i.e., assuming they will take the stand). Second, when we first know who the opposition witnesses will be, we should investigate their story, ascertaining weak spots, falsehoods and other points for their crossexamination. We should investigate their background, criminal record, demeanor and other matters that might be relevant and shed some light upon their cross-examination.

Q: You told this jury that my client, not you, organized the gambling operation. Is that true? Look at this jury and remember you are under oath. A: (Turning to the jury) Yeah, that's what he "done" all right. Q: Very well. O.K. And you claim that my client received 75% of the take but you only got 25%. Is that what you expect this jury to believe? A: Yeah, that's right. That was our deal...75 to him; 25 to me. Q: Well, if you were partners, I don’t understand why my client received 75% of the "take" but you only got 25%.

Through these many years of my career I have been amazed that all-too-many attorneys, both Prosecutors and Defense Counsel, frantically take copious notes of the direct testimony of a witness. Then, when the witness is passed for cross they stumble willy-nilly through their notes asking all sorts of senseless, irrelevant questions, often raising their voice in thunderous volume hoping to catch the witness off-guard, sometimes even repeating the direct testimony, to the confusion of the jury, gaining nothing positive for their side.

A: Because, in an earlier game at the Flamingo he got 25% and I got 75%...that’s why!

FOR EXAMPLE

A: That's right, only 3 months.

Several years ago I was retained in Federal Court to handle an appeal for a man convicted of running an illegal interstate gambling operation at Caeser’s Palace in Las Vegas. I was appalled by Defense Counsel’s crossexamination of the main witness for the prosecution:

Q: Then how could you possibly know my client was drunk?

ANOTHER KILLER EXPLANATION A young patrolman, the arresting officer in a DWI case, testified that in his opinion Defendant was literally drunk out of his gourd at the time of his arrest. Defense counsel asked: Q: But you have been a patrolman for only 3 months, haven't you, Sir?

A: Because I was a bar tender for 14 years before I became a cop!

WITNESS IN A RIDICULOUS, UNTENABLE POSITION If you are fortunate enough to trap the witness into a ridiculous, untenable position that he cannot explain, that is like the icing on the cake. In the Barry Grayii. case, the Defendant Gray raped his neighbor lady, thrust a kitchen knife through her throat, bashed her on the head with a champagne bottle, and left her for dead. I was that fortunate in my cross of Doctor Domres, an Air Force shrink who testified that Gray was insane when he committed the offense but that he was completely sane now, at the time of his trial, and that he would never, ever commit any crime, let alone any crime of violence again. On cross-examination I asked Doctor Domres if back before the offense would he ever in his wildest dream have predicted that Gray would commit such a horrible, brutal crime. He answered: “No! Certainly not!” But he did, didn't he, Doctor. He did! So, how can you possibly expect this jury to believe he won't do it again?" He gulped and admitted that he could not. DON’T BE GREEDY When you are fortunate enough to get a favorable answer, do not push for more because the witness might either change his answer or destroy the favorable aspect of his earlier answer. For example: Before becoming a Judge, Justice Shirley Buttsiii defended a man accused

of robbing a cab driver in Fort Worth when I was in the DA's office there. I was the Prosecutor. Her cross-examination of the cab driver went like this: Q: Mr. Cab Driver, it was dark in the park that night and the dome light in your cab was burned out, wasn't it? A: Well, yes. Q: And you identified "the man who robbed you" through your rear-view mirror, isn't that right?

A FEW TIPS AND SUGGESTIONS 1 . Take and keep control of the witness. 2. Do not allow him or her trap you into answering their questions. 3. Do not repeat their testimony. 4. Keep eye contact at all times and study their facial reactions. 5. Be positive and confident at all times.

A: Well, yes 'Mam.

6. Do not fumble around with your notes or other papers.

Q: You only got a glimpse of the "man who robbed you" for a few moments and, as you say, through your rear-view mirror?

7. If the witness is a "smart alec", sarcastic, would-be comedian, antagonistic, argumentative, or hostile...keep your cool.

A: Yes 'Mam, that's right.

8. Be courteous, do not get angry, and never argue with the witness.

Q: Actually, Mr. Cab Driver, my client Mr. Jones here, just looks like the "man who robbed you "â&#x20AC;&#x201C; right? A: Well, that's true, he does look like him. Yes 'Mam, he looks like him. Q: That's all, thank you Sir, pass the witness. During her argument she noticed a Juror who closely resembled President Eisenhower. She addressed that particular Juror saying: You, Sir look very much like President Eisenhower but "looking like" doesn't make it so, does it? The Jury quickly found her client "Not Guilty."

9. Save your comments for argument. Capture "center stage." CRIMINAL TRIAL STRATEGYiv If you do not have a copy of Charlie Tessmer's most valuable book entitled: CRIMINAL TRIAL STRATEGY. Get it! You can buy it from The Texas Criminal Defense Lawyers Association web shop at http://itm.im/tcdla-shop for just $39.00, including shipping. Chapter 6 (pages 7 1-106) Examination of a Witness, Cross-Examination, is worth the price.

jects of cross-examination are three-fold: (1) To prove something in your behalf, (2) to weaken the force of what the witness has said against you, (3) to show from his demeanor or past life that he is unworthy of belief. Page 86: Always examine the witness on who has talked to them before trial and for how long and where. The Prosecutor on redirect will usually ask the witness if he did not tell the witness to tell the truth. If this occurs, ask the witness if he knows why the Prosecutor found it necessary to warn him to tell the truth. If possible, show that the Prosecutor got all witness together and talked to them about their respective testimony and about the case. This little book itself tells you all you need to know about Cross-Examination and much more. I bought it when it was first printed in 1968 and have used it repeatedly these many years hence. J.W. ( Jake) EHRLICH v Jake Ehrlichâ&#x20AC;&#x2122;s classic THE LOST ART OF CROSS-EXAMINATION should be in your library. It was first published by Putman and Sons in 1979 and again in 1987 by Dorset Press (ISBN 0-88029-151-6) with a Foreward by Percy Foreman. The object of cross-examination is to test the truth of statements of a witness made on direct examination; to sift, modify, or explain what has been said; and to weaken, disprove or destroy the case of your adversary

FOR EXAMPLE Page 81 about Cross-Examination: The ob-

Good cross-examination is the result of thorough preparation and is most effective

Say a Little Praye by Sam Lock

Cross Examination Building Blocks Oh, ye gods of litigation, allow me to elicit the information I need from this witness; Let the ears of the fact-finder understand the import of the words coming from the mouths of the witness, but only to the extent it helps my client.

cross-examining, for they are building blocks of a successful cross-examination. I believe that the most important building block of an effective cross-examination is: one fact per question. Each 'question' should contain only one fact. For example, the questions should be framed like this:

If there were such a thing as a Cross-Examiner’s Prayer, that would be it. No more. No less. After all, there are but two goals of cross-examination. One, get helpful information out of the witness. Two, make sure that the information comes out in a way that the fact-finder understands. You must succeed on both counts, or your cross-examination has failed.

Q: The car was off?

Let’s take a moment to think about what we don’t see in the Cross-Examiner’s Prayer.

A: Yes.

Dear Lord, Let me look really, really smart. Not there.

A: Yes. Q: The car was parked? A: Yes. Q: The car was parked legally?

Q: Ms. Jones was outside of her car? A: Yes.

Dear Lord, Let me show my wisdom, for the multitudes will surely worship me. Nope.

Too many times, the question comes out like this:

Dear Lord, forgive me for the wrath that I must show this witness. Not there, either.

Q: Ms. Jones’ car was legally parked, off and she was outside of it, correct?

Well, then. What’s the cross-examiner to do? Remember that cross-examination is a presentation. And, oh, ye cross-examiners, be ever mindful of these basic tenets when

Setting aside the compound nature of the improper question, the cross-examiner has squandered the opportunity for the witness to agree with him four times in front of the fact-finder. Limiting yourself to one fact per question allows a rhythm to develop. The rhythm of the back and forth becomes easy for the fact-finder to follow. The rhythm of the back and forth helps to control where the witness wants to take the testimony. Because, as you know every witness is a non-responsive witness.

Non-responsive Witnesses Witnesses will not answer the question that is asked. When this happens, be ready with the “non-responsive” objection if you an-

ticipate that the testimony is prejudicial. If, however, you believe the witness is likely to give you helpful information, let the witness run with it a little. Experience with crossexamination and knowledge are your only guides when deciding to let the witness have a little room to run. Do not use the phrases, “Answer the question.” Do not whine to the judge, “She won’t answer the question.” In my experience, the most effective way to get a non-responsive witness to answer a question after they’ve rambled, ranted, obfuscated, hemmed, hawed, and looked to the State’s attorney for direction, is to ask the question again, calmly, and precisely as you asked it before. By the third time that you’ve asked the question, it is apparent to the fact-finder that the witness does not want you to have the information you are after. The non-responsive nature of the witness has become a part of your presentation. Q: The car was parked? A: When I got there the driver was puking in the ditch. She had some puke in her hair... Q: The car was parked? A: The passenger side door was open and she said she was looking for her keys. Q: The car was parked? A: Yes. (At this point, start in on the location of those keys!) Finally, be yourself. Be direct. Leave false humility and compliments for the witness out of your presentation. There will be time for anger and frustration with a witness. Use sparingly. Only beat up those witnesses that deserve it. Most don’t. Let us close with a prayer.

when based upon knowledge of the legal and factual issues involved in a trial. WICHITA FALLS, 1949 I was privileged to visit with and hear the renowned San Francisco Attorney, Jake Ehrlich, at a meeting of the Wichita Falls Bar Association in 1949. The famous Hollywood Attorney Jerry Geislervi (who represented Errol Flynn, Charlie Chaplin, Robert Mitcham and numerous other Hollywood celebrities), also spoke to us. As a young, fledgling lawyer, eager for knowledge, I was literally mesmerized by their presence! QUIT WHILE YOU’RE AHEAD – DON’T ASK FOR AN EXPLANATION Jake Ehrlich, among other stories, related the following: A few years ago, in a California courtroom a personal injury suit was on trial. The Plaintiff was contending he had been physically and financially injured as a result of an accident. Defendant’s eager, young attorney’s cross-examination went like this: Q: Did you, at the time of the accident, when you were asked if you were hurt, reply that you were NOT? A: Yes. Sir, I did. Ooops! Instead of stopping there, our young and eager hero was not satisfied. Q: Well, sir, why have you been testifying all morning that you were hurt? A: Well, Mr. Lawyer, you see it was like this. I was driving my finest horse and buggy along the road, when along comes your client sputtering along in one of those newfangled automobiles and knocks us in the ditch. You never saw such a mess in all your life! I was lying flat on my back with my right leg broken. My buggy was in shambles, completely wrecked. Your client gets out of his car, looks at us and sees my poor horse is suffering and has a broken leg. He

rushes back to his automobile, gets a big old pistol, rushes back and shoots my horse in the head… Blaam! Then, he comes up to me and says, “How about you? Are you hurt?” CUTTING THE HOUSE EDGEviii – CROSS EXAMINATION When I was licensed on May 10, 1949, if I could have had the benefit of Mark Daniel’s paper entitled CUTTING THE HOUSE EDGE – CROSS EXAMINATION, delivered at the Rusty Duncan, June 12, 2014, I need not have spent so many hours sitting in the Atticus Finch balcony watching “how to do it” from older, more experienced lawyers; would not have had to dig from scratch ideas on crossexamination. Mark’s paper, with the Crawford Update, literally covers the waterfront. He covers in detail the importance of investigating everything possible about the adverse witness, the Witness for the Prosecution, if you will. If you did not attend the Rusty Duncan and do not have a copy of this outstanding presentation, I urge you to get a copy from the Texas Criminal Defense Lawyers Association, their website is TCDLA:com. CONCLUSION In the first part of this paper I mentioned the value, the importance of investigating the adverse witness. I lamented further: Through these many years of my career I have been amazed that all-too-many attorneys, both Prosecutors and Defense Counsel, almost frantically take copious notes of the direct testimony of a witness. Then, when the witness is passed for cross they stumble willy-nilly through their notes with all sorts of senseless, irrelevant questions, often raising their voice in thunderous volume hoping to catch the witness off-guard, sometimes even repeating the direct testimony, to the confusion of the jury, gaining nothing positive for their side. Mark Daniel likewise on Page 1 says: “Most cross-examinations are conducted without a great deal of prior preparation or thought.

Far too often, cross-examination consists of a number of unplanned questions without purpose that often fill gaps in the prosecution, repeat direct testimony and results in an argument with the witness.” ‘Nuf said! i Charles D. (Charlie) Butts: Director Emeritus, SACDLA; Former President of TCDLA and SABA: Member of TCDLA Hall of Fame: Recipient of SABA's Joe Frazier Brown award: Married to Honorable Shirley W Butts, Senior Justice, Texas Fourth Court of Appeals. ii State of Texas vs. Barry Gray: 35 years in TDC (no appeal) l66th District Court ( 1970) Judge Jim Barlow presiding, and Warren Burnet and Emmett Rahm, Defense Counsel, Ted Butler and Charles D. (Charlie) Butts. Prosecutors. iii Shirley W. Butts: Senior Justice Texas Fourth Court of Appeals; Honorary Member TCDLA; Member SABA Hall of Fame; Received the Judge Sarah T. Hughes Award from the Women of State Bar; Married to Charles D. (Charlie) Butts. iv Criminal Trial Strategy, by Charles W. (Charlie) Tessmer: Charter Member of TCDLA and former President of TCDLA and NACDLA; Distinguished Member of TCDLA Hall of Fame. v Jake Ehrlich (1900-1971) Famous San Francisco criminal lawyer, author of many books including NEVER PLEAD GUILTY; Several web sites including JakeEhrlich.com; See Google “JAKE EHRLICH SANFRANCISCO LAWYER.” vi Jerry Geisler (1886-1962) Early Hollywood Celebrity Lawyer of Renown, Represented Errol Flynn, Charlie Chaplin, Robert Mitchum and many other high-profile Hollywood celebrities. See Google "JERRY GEISLER." vii Mark G. Daniel, Fort Worth firm of Evans, Daniel, Moore & Evans, President of Texas Criminal Defense Lawyers Association (TCDLA) 2002-2003.

Cross-Examination Tips Jorge G. Aristotelidis

I The capitulation of a witness on cross-examination is every defense lawyer’s dream, but a wounded witness can be dangerous. Don’t make ita point to humiliate a witness unless it is absolutely necessary. Know when to quit – take your positive points, and save them for jury argument.

II A judge gets in the way of your efforts to render a complete defense for your client through cross-examination, and you are caught between relenting to the judge, or winning over the jury. Win over the jury.

Tips To Successful Examination Guillermo Lara

Be confident. The worst thing you can do is look uncomfortable or afraid. The jury can sense it, the witness can sense it, the prosecution can see it, and the judge may even interrupt your questioning because of it. I know it sounds so simple but it’s easy to let the stress get to you. You certainly know the case better than the prosecution at this point and your questions should show it. No matter what you do, confidence is King.

Be natural. We try so hard to be as good as our mentors that we forget to be ourselves. It doesn’t happen over night but figuring out your comfort level will help you act naturally. The last thing you want to do is sound like the prosecution reading their predicate manuals and canned responses. Practice makes perfect.

Control the witness. One of the easiest pitfalls is letting the witness go on, and on, and on. It has happened to me several times and it’s easy to let it get you. Lead the witness and take control. In order to do this, you have to know what you need from each witness. If they don’t give you the answer you are looking for, rephrase your question but don’t argue with them. Be ready to object to non-responsive answers if necessary. Some experienced law enforcement are quick on their feet and will avoid the question altogether. Others will slip in damning answers if you ask open-ended questions. This is especially true if you are a young attorney. Don’t let them control you by being evasive. They are here to answer your questions.

Have a purpose. Have a goal in mind for each witness. Before trial, you need to brainstorm the purpose of each witness. If the witness didn’t bring much to the table for the prosecution, there might not be a need to question the witness. You have to determine what each witness is worth in any given situation.

The last thing you want to do is sound like the prosecution reading their predicate manuals and canned responses Practice makes perfect. Listen. Pay attention to the nuggets witnesses give when answering your questions. You have to be aware of the witness responses because this can be useful in your questioning. Although every person has a different method of crossexamination, we all should listen to what is being said. You have to be ready to use any helpful responses to your benefit.

Know everything you can about the witness. Do as much digging on the witness prior to trial. If itâ&#x20AC;&#x2122;s law enforcement, file open records requests and subpoena records. Search Facebook and social media for impeachment material on all witnesses. See Rule of Evidence 613. This information can fuel your cross-examination arsenal.

Know impeachment procedures cold if you are going to use them. In addition to digging up information for impeachment, know the procedures. I have seen too many attorneys attempt to impeach a witness with a prior inconsistent statement but get stuck on the procedural aspect of it. You must practice going over the procedural requirements so you donâ&#x20AC;&#x2122;t lose credibility with the jury. Know when you must prove up the impeaching matter.

Ten Practical Tips for Cross Examination Joseph A: Esparza Gross & Esparza, PLLC

Research all known witnesses & subpoena info as needed: Examine social media (Facebook, Instagram, etc.), courthouse records, LEXIS or WESTLAW people searches, PublicdatA:com or similar sites, subpoena Texas Dept of Corrections records, mental health records, probation records, school records, courthouse records, transcripts from prior hearings, civil case files, etc., for dirt on testifying witnesses, including your own. You need to know what is available for impeachment purposes as evidence and what the State may have. Without this basic first step, you’re flying blind.

Don’t cut off the witness in their CX response if they’re hanging themselves. Let them hang themselves.

Don’t be a jerk, until you need to be. The witness has to earn being grilled and shamed (if necessary), don’t just start there because most juries feel more connection with the witness first and the lawyer second. But once they earn it, grill them because now the jury feels more for you than this witness that has revealed they don’t think/ act/live like the jurors do.

Know the evidence rules and have any impeachment materials ready to go: Know them cold, especially the impeachment rules (TRE 607-613). This almost goes without saying. Have clean copies of transcripts, screen shots, Facebook posts, text messages, whatever, ready to go as needed and tabbed and organized. Don’t be fumbling around looking for your impeachment material in court during a great moment in CX and lose that momentum. You appear sloppy and it gives the witness too much time to think! Also, if you can’t produce your impeachment items on command, the jury may think you’re being slick and making it up. Know if something is hearsay or not, which exceptions apply, all of it. Know how far opinions are allowed to go from a witness. If you have to lay a foundation to enter an exhibit into evidence, know it cold.

III Keep a list of topics/points to hit. You need to know what you elicited and what you didn’t. Don’t rely on memory to know if you hit a topic. If the topic is critical to your case, write out those questions or points you need and make sure they are covered. They will factor into your closing argument down the road, so you need to know if you covered them completely.

IV Throw in some open-ended questions at times to break up your cross. The old “10 rules of CX” are great for starters, but they result in all CX being the same overall. Break those rules once in awhile, especially in situations where it doesn’t matter what the answer is to the DX-type question because it hurts the witness either way, e.g., “Which of your husband’s arms has the Swastika tattoos?” or “After you got high, where did you go next?” Makes it feel more conversational and you still get the dirt you need.

V Don’t repeat the same points over and over, juries are smarter than you think. They can smell dirt just like you can – you can connect the dots for them later in closing argument.

VII You don’t have to cross a witness that didn’t hurt you. Sometimes less really is more.

VIII

IX It’s not the end of the world if you make a witness cry. I’ve made sex assault victims cry, child witnesses cry, parents, even a drug dealer one time. It happens. Just make sure that if they cry, it’s because of the context and topic of the questions and not your demeanor. Don’t bully the witness you are crossing. The jury has to see you as the defense lawyer wearing the white hat. Let them regain composure and gently resume questioning and cover again, in a roundabout way, the same topics as before. When they fail to cry the second time around, remember to argue to the jury that the first time was the “show” and the second time the “reality.” Tears do not equal truth. They’re just tears.

X If you draw an objection, stand your ground and state the LEGAL reason why your question is valid and deserves an answer. In front of the jury. I’ve watched lawyers sometimes start walking to the Bench to confer privately without anyone requesting it and it baffles me! Be up front, don’t hide your thinking. If you approach and talk at the bench and lose, the jury may think the Judge rightfully stopped you from pulling a fast one. Don’t let a false impression of you as a lawyer be left with the jury; your credibility as the defense advocate is critical to the client and his/her cause. In front of the jury, have your legal reason ready to go — and not just, “I think I’m entitled” or “My question is valid” type arguments because if the Judge disagrees, then the jury thinks, “Well, that wasn’t valid after all.” Remember that the Judge is the authority figure the jury likes. You need them to think you’re a straight shooter too. Let the jury hear your thoughts on the matter in question if at all possible. Even if you lose the objection, you can make sure the jury hears a logical and relevant reason as to why you asked what you asked and that it wasn’t some “lawyer trick.”

Never Say Never & Never Say Always John M. Pinckney, III

john.pinckney@strasburger.com

As a catcher in baseball calling the type of pitch or location, and as a criminal defense attorney making a determination on cross–examination, the following maxim applies: never say never and never say always! More art and experience than science applies. Another principle that I have always heard is that there are two mutually inclusive rules that apply if the accused is to obtain acquittal: (1) he cannot testify, and (2) he must testify. In order to comply with these apparent conflicting rules, the criminal defense attorney must in cross–examination of the government witnesses attempt to obtain testimony favorable to the accused, either in support of the accused position, contention or defense, or adverse to the government’s case as to one or more essential elements of the offense charged. Cross–examination of the government witnesses should attempt, where applicable, to show bias, mistake or his or her motive to shade the testimony. If there is truly a prior inconsistent statement by the witness, counsel needs to show that inconsistency by impeachment, but by also withholding a direct attack of the witness, reserving the opportunity to request in argument that the jury consider and determine whether the witness is a liar. It is amazing that a group of twelve citizens can determine well the credibility of a witness and the weight to be given his or her testimony without a direct attack by the accused’s counsel. Hold those gems from cross–examination until closing argument requesting the jury to make the final determination, showing the unreliability of the government’s case and the necessity of the return of a two–word verdict. Lastly, the maxim applies and there will be occasion when no cross is the correct tactical decision – never say never and never say always!

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Cross-Examination Tips Norma Gonzales

VII

“...isn’t that correct?” “...isn’t that correct?” “...isn’t that correct?” So many attorneys think this is the way you cross examine a witness. What it really is – aggravating and ineffective.

Make it personal for the jurors when you catch a witness in a lie: “That’s what you told the ladies and gentlemen of this jury, Ms. Witness and it was not true...” ( long pause) was it?

VIII

Pay attention, a lot of attention, to the direct examination and the state’s opening statements.

Voice inflection is a very effective tool. You don’t have to yell to make a point. In fact, many times, a whispered voice, at the right moment, can be piercing. Plus, you get the jury leaning forward to hear your point. Which, of course, you will repeat several times.

III Lock in any prior statement or report and it’s accuracy: “Officer, you were taught how to write reports at the academy, how important they are, how thorough and accurate they need to be, etc.? And confirm that they did just that (assuming their report is piss poor and/or they have testified about a lot of things not in their report).

IV Then, start by setting the table: confirm everything they have said on direct that you know is incorrect or misleading. “I want to make sure I understood you correctly, Ms. Witness, you testified earlier on questioning by the state that...” Go through their entire testimony that is faulty, misleading or just plain lying, before you bring out the gun.

V Going through as suggested above also serves the purpose of getting the witness in a good mood, thinking you are their friend, they let their guard down, and then you lower the boom.

IX Be a drama queen. (within reason) Feign exasperation: “Ms. Witness, I’m simply trying to confirm that what you told the jurors today about my client allegedly almost falling when she exited her vehicle is not in your report.” Do the double take: Look at the jury to make sure they heard what the witness just said. Ever so slightly, shake your head in disappointment, disbelief, etc.

X If a witness gives you a gift during your cross, consider STRONGLY whether you should stop. Quickly think through what is left of your cross (as you are looking at the witness), and if they are minor points, as opposed to what the witness just gifted you, then look at the witness, slowly repeat what they just said. Confirm that is what the witness just told the jurors, look at the jurors, knowingly, and pass the witness.

VI Use their own words against them. Refer back to #2. “You remember testifying under oath earlier don’t you Mr. Witness, you remember saying, because I wrote it down, right here in my notes: “XXX”. That’s what you said, wasn’t it. Those weren’t my words, Mr. Witness, they were yours”.

Cross-Examination Tips Michael C. Gross

I Investigation. I have found that a cross-examination has a higher chance of being successful if there has been a thorough investigation of the witness. The following are useful in investigating a witness’s background prior to cross-examination: (1) criminal record check; (2) divorce records; (3) civil suits; (4) property records; (5) assumed name records; (6) marriage license records; (7) voter registration; (8) Lexis/Westlaw; (9) Google/Yahoo; (10) publicdata.com; (11) autotrack.com; (12) bcad.org; (13) tdcj.state.tx.us; (14) mysanantonio.com; (15) social media. I also subpoena the following records: jail records, school records, TDC records, phone records, apartment records, probation officer files, work records, crime lab/ME records, and counseling records. II Remember your mindset as defense counsel during cross-examination. “Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent ...But defense counsel has no comparable obligation to ascertain or present the truth ...If [defense counsel] can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth... more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.” United

States v. Wade, 388 U.S. 218, 256-258, 87 S.Ct. 1926, 1947- 1948, 18 L.Ed.2d 1149 (1967) (White, J., dissenting in part and concurring in part). III General rules for cross-examination. I have found the following guidelines to be very helpful as taken from Francis L. Wellman’s The Art of Cross-Examination (Macmillan Publishing Co., 4th Ed., 1962). A: The first inquiries are: Has the witness testified to anything that is material against us? Has his testimony injured our side of the case? Is it necessary for us to cross-examine him at all? B. A skillful cross-examiner seldom takes his eye from an important witness while he is being examined by his adversary since this helps estimate his integrity. C. Be courteous and conciliatory toward the witness since the sympathies of the jury are invariably on the side of the witness, and they are quick to resent any discourtesy toward the witness. D. The counsel who has a pleasant personality; who speaks with apparent frankness; who appears to be an earnest searcher after truth; who is courteous to those who testify against him; who avoids delaying constantly the progress of the trial by innumerable objections and exceptions to perhaps incompetent but harmless evidence; who seems to know what he is about and sits down when he has accomplished it, exhibiting a spirit of fair play on all occasions -- he it is who creates an atmosphere in favor of the side which he represents, a powerful though subconscious influence with the jury in arriving at their verdict. E. Speak distinctly yourself, and compel your witness to do so. Bring out your points so clearly that people of the most ordinary intelligence can understand them.

IV Cross-examination and the rules of evidence. You must master and make use of the rules of evidence for a thorough crossexamination. Rule 607 states that the credibility of a witness may be attacked. The defense has the right to cross-examine a state witness and to impeach that witness with evidence that might reflect bias, interest, prejudice, prior inconsistent statements, character traits affecting credibility, lack of capacity, and contradiction. Roberts v. State, 963 S.W.2d 894, 900 (Tex. App. - Texarkana 1998, no pet.). Exposing a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of crossexamination. Davis v. Alaska, 415 U.S. 308, 316-317, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). Defense may cross-examine witness about pending felony charges and possible punishment. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). Rule 613 allows you to impeach a witness concerning a prior inconsistent statement. A foundation must be laid before impeaching a witness with a prior inconsistent statement. L.M.W. v. State, 891 S.W.2d 754, 759 (Tex. App. - Forth Worth 1994, no pet.). A proper foundation includes establishing where, when, and to whom the statement was made. Downen v. Texas Gulf Shrimp Co., 846 S.W.2d 506, 512 (Tex. App. - Corpus Christi 1993, writ denied). Counsel must allow the witness to admit or deny making the prior statement. Id. The witness is then allowed to admit having made the statement or explain or deny the statement. AlvarezMason v. State, 801 S.W.2d 592, 595 (Tex. App. - Corpus Christi 1990, no pet.). Rule 615 states that after a witness has testified on direct examination, you are entitled to review any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified. Once a witness testi-

fies for the state, the defense is entitled to inspect any previous written statements made by that witness. Gaskin v. State, 353 S.W.2d 467 (Tex. Crim. App. 1961). The “use before the jury” rule allows counsel to obtain a writing used to refresh the witness’s memory at trial, or a writing used or exhibited or read from at trial regardless of who wrote the document. Bailey v. State, 365 S.W.2d 170 (Tex. Crim. App. 1963). Rule 705 allows you, prior to cross-examination, to get information about an expert witness before the expert testifies before the jury. This examination shall be conducted out of the hearing of the jury. This voir dire concerns the underlying facts or data of the expert’s opinion and not the qualifications of the expert. Jenkins v. State, 912 S.W.2d 793, 814 (Tex. Crim. App. 1993). Counsel may voir dire the expert as to the validity of the theory. Chisum v. State, 988 S.W.2d 244, 248250 (Tex. App. - Texarkana 1998, pet. ref’d). Rule 803(5) states one exception to the hearsay rule is a memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. The writing must have been made or adopted by the witness when the matter was fresh in her memory. Welch v. State, supra. The evidence must establish that the witness had personal knowledge or that the writing was accurate when made. Johnson v. State, 967 S.W.2d 410, 415-417 (Tex. Crim. App. 1998). Remember that Rule 803(8)(B) excludes police reports from the hearsay exception. The purpose of defense counsel inspecting the writing used to refresh recollection is to cross-examine the witness and test whether his memory really has been revived and highlight inconsistencies between the writing and the witness’ testimony. Powell v. State, 5 S.W.3d 369, 381- 382 (Tex. App. - Texarkana 1999, pet. ref’d).

Slice Dice by Bobby Barrera

It has been said, and I don’t know by whom, that Cross Examination (XE) is as much an art as it is a science. Trying to teach XE is like trying to “teach” sex. You can talk about it all you want but until you actually try it for yourself (not by yourself!) you won’t know what it really feels like and you will never learn the skills you need to be truly effective. XE is more than asking just asking a questions of a witness. It is a style of examination designed for a specific purpose. The

usual purpose is impeachment of the character of the witness or the testimony and evidence that the witness has proffered. It is the style of examination that you must develop with the aim of the total devastation of any damaging evidence offered against your client.

Just like dancing however, your XE style and skill depends upon who you are, upon your personality, and upon actually getting out there and doing it. Certain styles are limited to certain personalities and there is no “one

size fits all” style of examination. While there is no single “right” way to XE a witness it is clear from my experience that there are numerous “wrong” ways to do so.

In my opinion XE is the fundamental and most important aspect of any trial. As you can imagine, without XE the jury literally hears only one version of the events and facts for which your client is being prosecuted. This single version usually comes from the arresting officer, (who we all know never lies or exaggerates!) or it is from the

e& e alleged victim, (who we all know is never emotionally attached to their interpretation of the evidence) and in either event it is not good for your client. Keep in mind that the State gets to orchestrate which offense it is going to charge, which witnesses it will call to prove the offense and the order in which it will call each witness. Remember that to the the jury this dramatic environment is all new and jurors are not quick to believe that cops, victims, or witnesses will lie under oath. Accordingly, without effective XE, the only version the jury will hear will be proof evident that your client is a guilty pig. As a result of how most cases are made and how most clients are arrested the only witnesses are usually law enforcement officers and victims. Sometimes your only defense to the alleged crime based upon this type of evidence and testimony is an effective and concentrated cross-examination of the State’s witnesses. Fortunately, sometimes that is all you may need! In preparing for that moment of confrontation of a witness you must be able to quickly analyze and then dissect what purports to be and may be the truth. As defense lawyers our motto should never be “The Truth Shall Set You Free”. Experienced criminal lawyers know that in most cases the truth has nothing to do with justice and justice has nothing to do with the truth. In reality, the truth is that most of our clients are actually guilty of something but what’s that got to do with it? The United States Constitution does not say “only innocent people are entitled to a fair trial”. That is why you must practice and know your XE tools and weapons and be mentally prepared to challenge every conclusion and every opinion ever expressed by every State’s witness. Your client’s liberty and maybe even his very life depend upon both your preparation for and your XE of his accusers. While victims may believe that it is neither fair nor just that juries do not convict those who are truly guilty, we ALL believe that it is immensely more unfair and unjust for juries to convict those who are truly innocent! There are numerous clichés about XE the most common of which has to be never ask a question that you don't know the answer

to! While this is a general philosophy in theory, in reality this is an impossibility as we as defense attorneys usually have no more than a one or two paragraph police report or a multi-lined expert lab report to operate from for XE purposes. As defense lawyers we should know that the risks of XE and the dangers associated with it are not in asking questions that we don’t know the answers to but in asking stupid questions when we know the answers can hurt us but we ask them anyway! Have a specific purpose of your question and know how the question applies to your defense or don’t go there at all.

Effective XE must be a spontaneous give and take with the witness. Like a military battle, it is always fluid. You cannot stick to a rigorous list of questions or a plan which you prepared in advance of trial. We have all been subjected to the boring and monotonous lists of questions young ADA’s use to question officers and experts. We see them fumble and flip pages when the answer or response received is out of “order” with their list or they ask a question on the list that was answered spontaneously by the officer 10 minutes earlier! This should not and cannot happen with your XE. You must be prepared to modify your XE based upon the situation and answers which unfold before you. There are lots of patterns to XE of witnesses, both experts and laymen, and over time you will see that the patterns are repetitive. While making lists of areas to inquire about is certainly advisable for memory purposes, reading a written XE question certainly detracts from the impact of both your question and your credibility, especially if the jury thinks that you are not prepared. You must be able to follow the witness’s meandering and sometimes outright dodging answers. If the witness gives you an angle of attack, take it! Don’t be grounded by an “outline” of your XE when your witness is swinging from branch to branch with his answers.

Most testimony, especially expert testimony, involves a detailed recitation of the evidence adduced by the State on direct. My methodology is to take my yellow pad sheet of paper and divide it from top to bottom with approximately 2/3 on the left side and 1/3 on

the right side. I record the testimony of the witness on the left and make my notes on the right for follow-up with both questions and XE issues. I may put a big asterisk (*) or question mark (?) on the left column for emphasis by some point or comment made by the witness to cue my memory for later use. As the testimony comes to a conclusion and the witness is passed, depending upon who the witness is and the damage which may have been done, or avoided, I then choose where I will begin with the cross. Most lawyers’s usual routine is to start at the beginning of the direct examination and go all the way back through the testimony. Well, this is usually too routine! There is no reason start at the beginning of the testimony if the witness has given you a window of opportunity to either attack his credibility or his knowledge of the facts based upon something he may have said during or even at the end of his testimony. The first part of most direct examination testimony, especially with law enforcement and even with lay witnesses, is very routine and even mundane. These questions generally prove no issue and may be considered foundation questions like “Where do you work?” and “How many arrests have you made?” Many times the State likes to save the best for last by finishing strong with some point of evidence or opinion which is very damaging to your client. If this testimony offers you an opportunity to strike while the issue is fresh on the minds of the jury, take it and run with it, especially if you have an opportunity to hammer the witness with some indisputable error that they have made. As in comedy, timing is everything so don’t lose the drama of the moment or issue by beginning your XE with “Now, Officer Smith, where did you say you worked again?” Open strong on cross when you have the opportunity to keep the jury’s attention focused where you want it. Clearly, there is nothing but experience to give you experience so get out there and watch other lawyers and then set your cases for trial. There are no shortcuts in this profession and your client’s liberty depends upon your preparedness and effectiveness. You don’t need to be an ass to be effective but you do need to have purpose and focus. Go get ‘em!

For Precision and Accuracy in Cross-Examination Try Summation-based Cross Alfredo Villareal

“Summation-Based-Cross” is exactly as stated. It is the execution of cross examination of witnesses based entirely on the closing argument that will be made to the jury. The immediate question that jumps to mind, of course, is “How do I know what questions to ask if I don’t know what the final argument is going to be because the trial has not yet occurred?” CAVEAT: This methodology can only work if the following is firmly in place:

I You are completely immersed in the facts of your case. That is, you have fully investigated the allegations against your client and you have interviewed all of the available witnesses. The goal is to speak to every witness. However, because this is not always possible, you should interview every critical witness.

IV You absolutely need a completely logical and plausible “defensive theme.” The defensive theme is quite different from the theory of defense. The theory of defense is directed at the law in your case. It is the theory by which your client is “not guilty” under the law as the law appears in the books. The defensive theme is the “emotional hook” that you use to bring the jury to your side. The defensive theme is the vehicle by which the jury is persuaded to absolve the defendant. For example, in a “date-rape” prosecution the legal theory of defense is that there was consensual acquiescence by the complainant. The defensive theme may be that this was “a-one-night-stand.” While a jury may have difficulty comprehending a lengthy and convoluted jury charge on what constitutes “consent,” the members of the jury can easily grasp the concept of the “one-night-stand.”

III

Once these four things are firmly in place then you are ready to produce your trial notebook. The very first product of your trial notebook is the closing argument. The closing argument must be written in its entirety. Every word should tell the story of your defensive theme. This may sound counterintuitive, but, it works very efficiently. By producing the summation first, that is, by starting at the end, you are then able to skillfully develop your cross examination and the rest of your trial notebook. The concept is strikingly simple. You know what questions to ask on cross because you already know what you are going to be arguing to the jury in your summation.

You must have a fully developed legal theory of defense. In order to fully develop your theory you must know every single word of the statute under which your client is charged.You must be thoroughly knowl-

CAUTION: In order for this technique to work every one of your cross examination questions must directly relate to your closing argument. In other words, if it is not in your closing argument DON’T ask the ques-

You must be thoroughly familiar with the police reports and all of the written or recorded statements of witnesses. The goal is to utilize the witnesses’ own statements during cross examination. You must know the very words of the witnesses. You want to know more about the investigation than anyone else in the courtroom, more than the police and certainly more than the prosecutor.

edgeable of the jury charge that the Court will likely give in your case.

tion. This method actually forces you to stick to your defensive theme. It compels you to drive home the message of your emotional appeal to the jury because every question that comes out of your mouth on cross will hammer away at your defensive theme. Remember a jury of twelve individuals is much more likely to take a “theme” back into the deliberation room as opposed to recalling individual facts or details about a case. Your goal on cross examination is to subtly but persistently remind the jury of your defensive theme and to do so with every single question. EXAMPLE: Returning to the “date-rape” case. Your summation might be something like this: “Ladies, gentlemen, it was a night of passion. Robert and Elizabeth made love that night. They had sex. They yielded to physical attraction and desire. That night of passion was driven by alcohol and provoked by lust and temptation of the flesh. The truth is, they had a one-night-stand. But for Elizabeth, that night of desire and hunger became a morning of panic and alarm. She looked at her cell phone and realized she had missed many calls from her fiancé and that his text messages had gone unanswered.” Now you know what questions to ask the complainant on cross examination. Q: “You had never seen Robert before that night?” Q: “You had never been to a nightclub with him?” Q: “Never had drinks with him?”

Q: “Robert had never been to your apartment before?” Don’t just tell the jury that they had a onenight-stand when, with precision and accuracy in cross examination you can SHOW the jury that this was a one-time fling. WRITE IT OUT: Just like you fully wrote out your summation each one of your cross examination questions must be written out. Precision and accuracy in cross examination can rarely, if ever, be achieved by an extemporaneous, seat-of the pants attempt at cross. If fact, it is often a recipe for disaster. Moreover, by crafting each individual question in full you can artfully choose your vocabulary. For example, in the “date-rape” case, the complainant may without resistance answer your questions if you choose to use the phrase, “had drinks” rather than using the words “alcohol” or “booze.” However, in your closing argument you have modified your vocabulary by ramping it up a bit and characterizing the events as “alcoholfueled.” You would not ask the complainant whether her actions that night were fueled by alcohol. Nevertheless, by carefully choosing your cross examination vocabulary you can later argue that in summation that her actions were driven by alcohol. CONCLUSION: Begin your trial preparation by starting at the end. Remember that the summation is your opportunity to tie everything together. It is the moment to state your case with vigor and persuasion. By engaging in summation-based cross every one of your questions will have had a purpose and there will have been a purpose for every question.

Q: “Never danced with him?” Q: “Not ever held hands?” Q: “Your friends saw the two of you kissing?” Q: “You fell into his arms?”

Fundamentals of Cross-Examination and Checklist John A: Convery & Julie K. Hasdorff

I II III IV V VI VI VIII IX X 26

Study the masters. You are not the first person to cross-examine a witness in a courtroom

“Cross-examination is a commando raid, not the invasion of Europe!” (Irving Younger) Limit the number of points sought from each witness. Too much info on a witness can obscure the points you are trying to make. Do not repeat, direct. Ask yourself, “do I need to ask this witness anything at all?” / “what do I get for my case by asking questions?” Sometimes the best thing you can do for your case is not ask any questions at all. Primacy and recency. Make your strongest points at the beginning and end of cross-examination.

Listen to, and maintain eye contact with, the witness.

Do not ask questions to which you do not know the answer. Enough said.

No expansive narratives. Questions on cross-examination should be short, single-fact, and leading.Counsel should lead the witness to a desired response and not allow for expansive narratives. This rules out the “Why” or “How” or “Tell the Court” lines of questioning. Avoid the ultimate question. Counsel can ruin a successful cross-examination because they think the witness is on the ropes and will admit the critical, ultimate fact in issue. This is not Perry Mason – avoid this temptation and save the inference for argument. Most witnesses are not going to confess on the stand! Develop strategies for dealing with hostile witnesses. Try asking “So the answer is yes?” or “Perhaps you didn’t hear my question.” or “My question was…” Asking the judge for help should be a last resort. You want to be in charge. Practice inflection to call attention to certain testimony. Falling inflection turns the tenor of the question into a declarative statement with which the witness will agree or disagree. The point is you are trying to get your jury to pay attention to the point you are trying to make and not necessarily the witness’s answer.

Cross Examination Checklist Witness background and/or Open Substance Photos, Charts, etc. Rules/Cases Prior Inconsistent Statements Impeachment Bias Credibility Motive or reason(s) to lie Demeanor-Ego Substance plus End strong

Cross Examination Tips James Reeves

Know the case thoroughly. Know the case so that you can fit the cross examination of the witnesses into your theme of the case. You should be the most knowledgeable person in the room as to the case and how the facts help or hurt your case so that you can weave the multiple cross examinations into your theme.

Don't be afraid to say “No questions.” If the State's witness did not hurt your client, then don't give them a chance. Let them go. This is by far the hardest rule to follow because we are ingrained to ask questions.

Have a goal with the witness. If you don't have a goal with the witness, then don't ask questions. Every witness fits into your case's theme in some way or else you have no questions for that witness. Once you obtain the goal, stop. Don't keep asking questions once you obtain your witness goal or goals because you will allow them to start clarifying their answers and you will find the one question too many that will come back to haunt you.

Tell your client's story with the phrasing of your questions. If you haven't read MacCarthy on Cross Examination and Dynamic Cross Examination then add them to your reading list. The witness is an instrument that you are using to tell the jury your side of the story. Often our clients cannot testify, and we must rely upon our questioning of the State's witnesses to tell our client's story. Incorporating the knowledge in those books into your cross examination style will get you away from the hack and slash method of cross examination and more into the story telling method.

Be nice – watch the jury. If you are watching the witness, then have your partner watch the jury. The jury's reactions can tell you when to move on or what their opinion is of the witness. In the heat of the moment, do not forget they are your target audience and you don't want them hating you and transferring that hate to your client. Avoid the sarcasm, animosity, and zingers in front of the jury. Be likeable and allow the witness or State to be the evasive, unlikeable person in the room.

Control the witness. Effective control of the uncooperative witness is crucial. Use techniques such as: rephrasing the question; repeating the question; asking the witness “Did you hear my question?” or “Did you understand my question?” or “Please answer my question.” or ask for a read-back of the question. Objecting to non-responsiveness should be a last resort, but it is sometimes necessary. Show the witness as being evasive by using simple, direct questions.

In the heat of the moment, do not forget they are your target audience and you don't want them hating you and transferring that hate to your client. KISS principle in effect. Keep the questions short and simple. No complex language or acronyms unless explained prior to using. Use one thought per question, and keep the questions short. If the concept is difficult, then it calls for multiple questions all of which are short and simple. There is no record and rewind, so questions must be simple and linear so that the jurors can follow you. You can change subjects with a helpful phrase such as â&#x20AC;&#x153;Now I want to talk about...â&#x20AC;? will transition the jurors to your new subject and also counter the difficult witness. Make sure to speak loudly for jurors who may have difficulty hearing. Pause after receiving important, beneficial responses. Allow the jurors to digest the information.

Don't read your questions. Writing out questions is too rigid and prevents you from connecting with the jurors and observing the witness. Write out your goals and objectives for each witness and use it as a guide. Your talking with the witness should be as polite and natural as possible. Sometimes you want to pursue a strange response from the witness and need your objectives to get you back on track once you are done pursuing the response. Reading your questions leads more to you thinking about what the next question is than listening to the answer that you just received. The goals and objectives will also keep you on track against a prosecutor who repeatedly objects to throw you off your game.

Listen to what the witness and jury are saying and how they are saying it. Body language is important and some jurors are very good judges of body language. Watch the witness and jurors. If a witness has submitted or given up, then it is surprising what they will say. Jurors' body language will tell you if you are boring them or if they are interested in your line of questioning. Be sure to watch and listen to the witness while your partner is writing down the responses you want to repeat in closing. Make sure to pause after helpful responses so that the jury has time to digest them.

Have poster paper available. Sometimes the witness gives you a golden egg. You want to write that information down in front of the witness and jury to use in closing. It also helps in the retention of the information for the jury. We often hear the concept that repeating information three times is helpful in retention of that information. Hear it, write it, use it in closing. Also, some people are visual learners who need to see the information in charts, pictures, graphs, or written. This type of learner will retain information much better if they see it written. Writing down particularly helpful facts allows the visual learners to retain that information better than they would otherwise.

Tips for Cross-Eaxmination Rusty Guyer

The trial is a struggle for control of the narrative. The narrative, or theory, of your case may be as simple as, or no more than, reasonable doubt. The narrative begins in voir dire, is defined in opening statement, and is shown in cross examination. The defense of your case may be, simply, these three segments of the trial. Cross examination is the bread and butter of the criminal defense lawyer. There are three basic rules of cross examination: 1. Lead the witness.

with the witness. In organizing the examination of the witness, start strong and finish strong. In between the start and finish you can apply the more moderate elements of your cross such as identifying exhibits or other witnesses. Follow your trial plan for cross. Get in and get out. The majority of state witnesses are hostile and all too eager to spew their venom. Make your points and sit down. Just because the state has taken 90 minutes to question a witness does not require equal time on cross examination. The converse is also true. The state may not spend 15 minutes on a witness you may cross examine for two hours.

2. Lead the witness. 3. Lead the witness. The narrative of your case is controlled by controlling the state witness. You testify with leading questions which are affirmed by the witness. That is how the cross is supposed to work. This can be best achieved by preparation. Review the witness statements or reports, the statements of other witnesses attributed to other witnesses. Review the rules and standards of the witness such as a police manual, DPS manual or the standard operating procedures and guidelines for expert witnesses. Create prior statements by conducting pretrial hearings on as many issues as you can, such as motions to suppress evidence, identity hearings, and anything else regardless of their merit. The hearings provide discovery without exposing the testimony to a jury. After a hearing, request copies of the testimony. Carrying defense motions with the trial deprives the defense lawyer of the written testimony of the witnesses. Send an investigator to interview witnesses. The lawyer should go also, but it will be the investigator who prepares the report, and the question to the witness is not, “Didn’t you tell me?” but “Didn’t you tell the investigator?” We generally know who the state witnesses are going to be. For each witness, determine the areas or points you wish to establish

Often the witness will not want to follow you down your preferred path, generally using an argumentative tone in the answer and perhaps by even asking you a question. You are in control. Respond, “I will ask the questions, you will provide the answers.” If the witness will not answer a question, never, never ask the judge for help. The judge will not help you. You are in control. You do not need the help of the court. A remark by the Court, “Counsel, I am not here to do your job.” will not make a favorable impression on the jury. When you have a witness who does not stop talking, hold out your hand with your palm up, like a traffic cop (or like The Supremes, if you remember them) and, if necessary, say “Stop.” The witness will stop speaking and you must be ready with your next question. All rules have their exceptions and this is also true for cross examination. The defense lawyer may find an occasional cooperative witness who is bound by moral responsibility to tell the truth, regardless of what that truth may mean to the state’s case. Be ready to exploit such opportunities, which might mean to not lead the witness. The true art of cross examination is the ability of the lawyer to take the measure of a witness for the purpose of advancing the theory of the case. Applying the right technique is the true art.

Cross Examination Raymond Fuchs

It is essential that a lawyer has a theory of the defense, and a thorough understanding of the case and of the prosecution theory of the case before cross examining a witness is even considered.

it true…” or “You agree with me that…”, or conclude the question with “…isn’t that correct,” but do not do it to the point of constant repetition that the jury becomes bored by it, and begins to anticipate it.

Discovery is critical to cross examination. Once the defense position is determined, the cross examination should be tailored to the plan. Always recognize that the most important purpose of cross examination is to collect material for closing argument. Perry Mason moments, where a prosecution witness breaks down and confesses under cross examination, are quite rare.

We deal with cases where police testify. After establishing how important what they do is to the administration of criminal justice, ask leading questions of them by pointing out what they didn’t do that a professional officer would have done, or how they screwed up what they did do.

When the witness is passed from the prosecution to the defense, the first question asked should be one to the lawyer: Do I need to cross examine this witness? Make sure the answer is yes before proceeding. If the witness didn’t hurt your case, and there will be no favorable evidence forthcoming from the witness, why make them seem important by asking questions of them. Once you decide to cross examine a witness, there a few things you do not do. Don’t repeat the testimony elicited on direct examination. Don’t let witnesses explain their answers. Don’t ask questions if you do not know the answer. Do not ask "Why?" unless you positively know the answer is beneficial to your case, and you have the impeachment ready if you don’t get the expected response. There is very little luck in cross examination. And there are things you must do. Always ask leading questions. Always try to ask the leading question so you get a yes response. When the jury hears the witness agreeing with you it is seen as positive to them. Form your questions based on facts, not conclusions. Jurors may well agree with each fact you propose but will probably buck you on your conclusion if it differs from their own.

Don’t establish your cross by following the format of the direct testimony. Sure you took all those notes during the direct examination and don’t want the effort to go to waste. Well forget it. Make only the points that will be beneficial to your defense. As soon as you get what you need for final argument stop while you are ahead. Know your own style, and always be professional. Of course you can be aggressive with a jailbird, trying to help himself. But don’t try that with a child witness. Always try to end the cross on a high note. So don’t ask that next question. And never ask the ultimate question. If you have done it properly, the jury is ready to hear you ask and answer it in your closing. Think of cross examination as an excursion behind enemy lines. If you can do some damage while you’re there do it, and then get out. If you can’t or don’t know if you can, then the likelihood of success is certainly slim at best, and the possible result is disaster for you client.

The leading question should be short and plain, and attempt to elicit only one fact. The jurors need to understand the question, too. Don’t try to impress them with 50 cent words they don’t understand either. You can use introductory phrases like “Isn’t

Ten Tips For Asking Proper Questions on Cross-Examination Mark Stevens

Cross-examination is when we make prosecution witnesses say things that help us win. This is hard because witnesses for the state usually want the defense to lose, and will try to testify accordingly. To win you have to control the witness, and the best way to do that is by asking proper questions.

I Prepare. Preparation is essential. Good cross-examiners spend much more time preparing for cross-examination than actually doing it. Frontload your case by doing the investigation and obtaining discovery. Visit the scene. Get the state’s witness list and talk to everyone who will talk. Collect every piece of paper for every witness: police reports, witness statements, transcripts, medical records, forensic reports, learned treatises, newspaper articles, employment records, rap sheets, social media, telephone records, videos, photographs, 911 calls. And so on. Organize this material carefully. All the paper in the world is useless if you cannot get it when needed. Advocacy is not science and most of its principles, however important, are not commandments written in stone. Sometimes the skillful examiner, after carefully sizing up the case, will abandon even bedrock rules. The one principle that can never be ignored, though, is preparation. Never. If you don’t prepare properly, then only luck will prevent you from hurting your client, and only the lazy depend on luck. Lazy lawyers usually lose.

II Plan. Once you have prepared, you have to plan. How you cross-examine depends on what you want to accomplish, and this depends on your theory of defense. Three things are essential to a good plan. First, choose a strong beginning. You have to immediately grab the jury’s attention, then hold it for the duration of your cross. Begin strong, because if you lose the jury’s attention by beginning with bad questions, it is unlikely you will ever be able to make them listen to you again. Do not waste this precious opportunity by introduc-

ing yourself to the witness, or asking if they had a nice lunch, or exchanging other empty pleasantries. Start with something meaty. Second, end strong. Save for the last the very most important point you are confident you can get from the witness. You never want the witness’s last answer to be a bad one. By the way, in addition to beginning and ending strong, you have to be strong in the middle. Simply put, there are no “throw-away” questions in a good crossexamination. If a question is not a good one, designed to do something that helps you win, don’t ask it. It’s easy then: begin strong with significant and interesting questions, end strong with something safe, yet powerful, and be strong in the middle by asking not a single useless question. Third, write your questions out, initially. Controlling witnesses requires precise questions, and you cannot expect precision if you are making up your questions as you go. Once you have written out your questions exactly as you want, practice to make sure they sound as good as they read, then familiarize yourself with them so you can ask your questions without having to read them to the witness. Transform the questions into an outline format for use in court. That way you won’t forget something important, nor will you lose control of the witness or the jury’s attention.

III Form is important. You must communicate well with both the witness and the jury. Ask short questions. Use simple words. Inject one new fact per question. What about leading? Everyone says to do this, and they are right, mostly. Leading questions are the safest way to control adverse witnesses and you almost always err when you ignore this good general rule. Still, this is another rule of advocacy that is not absolute. Some of the very best questions I have ever asked on cross were not leading. Unfortunately, just about all of my worst ones were not. Younger lawyers should rarely risk a non-leading question. Older lawyers should do so only when they have carefully thought out the consequences of disobeying this very important principle.

IV Find the proper tone.

VIII Don’t stop too soon, but then stop.

It will vary from witness to witness. You will use a different tone with an obvious liar than with an elderly victim who is mistaken about her robber’s identity. You will speak differently to a child than a jailhouse informer. Whoever your witness, though, you must always be appropriately respectful. The amount of respect and how you show it may differ depending on the witness, but you can never be unprofessional. You should be firm, indeed relentless when necessary, but not an overbearing bully. And never, ever can you lose your cool, or be snarky, sarcastic, or quarrelsome. Let the prosecutor do those things.

Cross-examination is not for the timid. If you need an answer, ask the proper questions to get that answer, and keep going until you get it. But once you get the answers you need, stop. Don’t ask one question too many. Save the ultimate point for summation. A useful thing to remember in cross-examination, and in life, is that, if it sounds too good to be true it probably is. Don’t be greedy or sloppy. Cross-examination is not discovery, nor is it to satisfy your curiosity. Fair warning: knowing when it is too soon to stop, and when it is too late, is unquestionably the hardest principle of all to follow. Nobody said this is easy.

V Cross-examine toward specific goals only.

IX Act like you know what you’re doing.

Every single question you ask on cross-examination should be directed to getting an answer that helps you win. If not, discard the question, because if you are not winning, you are losing. Again, there is no room in effective cross-examination for throw-away questions.

When you start to score points with a good cross, the prosecutor will want to cut you off with objections, especially if she senses that you lack confidence. If the judge senses the same, he will sustain these objections and then you’re done. Never let them see you sweat. So, know what you’re doing, and do it right, but on those rare occasions when you don’t really know, act like you do. Especially when you don’t.

VI Listen to the witness and react accordingly. Yes, you must carefully plan your cross-examination, but you must also listen to the answers you get, and be prepared to move away from your plan when the witness gives you an opening you had not anticipated.

VII Don’t ask a question if you can’t handle the answer. It is often said that a lawyer should never ask a question if she doesn’t know its answer. But this is impossible. You will never know how any witness will answer any question. If you have properly prepared though, you should always be able to ask questions that give you answers that you can handle.

X Study. Much has been written about cross-examination, and some of it is excellent. My favorite is Cross-Examination: Science and Techniques, by Larry Pozner and Roger Dodd, and I have borrowed liberally from it here. Read that book and others recommended to you. Watch other lawyers, good and bad, because you can learn from both. Most importantly, get into the courtroom and cross-examine as many witnesses as you can, and decide for yourself what works best for you. Then spend the rest of your life developing and improving your skills.

Cross Exam Tips Adam Kobs

Be specific. Ask straightforward questions

It’s OK not to ask questions.

which elicit a “yes” or “no” response. II Be concise. The impact of your question is less likely to get lost if you avoid long-winded questions. III

Do no harm. Don’t repeat the government’s case and inflict more damage. VIII Craft your tone, demeanor and tempo to the witness.

Know the answer to a question before you ask it.

Use a different style with a cop than

However, this is subject to tip number four below. For

you would use with a child.

every hour of cross, plan on putting in 10 hours of prep. IV

IX Don’t come across as rude or confrontational to

Open-ended questions can be okay when done spar-

the jury. Set this up in voir dire by asking the ve-

ingly. Try and limit this to pre-trial hearings outside the

nire if it’s alright to ask hard questions.

presence of the jury. It’s better to hear it now, than later in front of the jury. If it’s a bad response, then you will have time to minimize it before it comes up later. V Save the ultimate question for closing argument if possible. Sometimes, we ask that one last question when we shouldn’t have.

VII

X Use exhibits to help support the testimony. It gives the jury visual aids and helps provide a better understanding.

Cross-examination Patrick Hancock

There is no doubt that an effective cross examination can truly make the difference in whether a lawyer wins his case. The inverse of this is also true; a crap cross-examination can have a devastating effect on your client's chances. Therefore, to cross-examine or not to cross-examine, is sometimes the crucial question to the advocate and one not easily answered during trial. Lawyers too often feel that the cross-examination of a witness is a necessary part of the proceedings and that to pass up an opportunity to cross-examine a witness in front of their client reveals weakness and insecurity in their skills as an advocate. Nothing could be further from the truth. Sometimes the wisest move in advocating for one’s client is choosing not to cross-examine. The strategy of whether or not to make that call can be tough in trial conditions. However, with a few guidelines in mind before the judge says "counselor your witness", any attorney can remain cool, without fretting over whether to go for it on the cross- examination.

I The first rule is simple. Does the witness testify to any factual matters that a jury might consider in deliberating a verdict? Or, is the person just a fluff witness who offers only his role without really testifying to an element of the offense? The easy strategy: cross the fact witness in the way you have prepared and say "no questions" to the fluff witness. I have watched too many lawyers cross-examine witnesses simply because it was their turn to talk. Jurors, I believe, appreciate being spared the irrelevant minutiae by further questioning, this restraint may benefit your client when the jurors finally reflect upon the merits of the case.

II A close call occurs when a state's witness answers some questions favorable to the defendant upon direct examination. These answers could get better with an effective cross-examination; however, these answers could get worse for the defense with an unremarkable cross. It is sometimes a tough spot to find oneself in as a lawyer and not quite so infrequent as one may think. These are the times where case preparation is key. Case in point, if you have a defense witness who will testify similarly to the state's witness who was favorable to your client, then you may simply want to pass on cross. Then during the defendant's case in chief, put the defense witness on the stand

and gauge how the witness performs. An effective defense direct examination may allow one to strengthen the point without ever having to cross-examine the state's witness. This strategy allows one to bolster the state's witness in one's favor and to set up strong points for the final argument.

III How does one avoid those dreadful eyewitnesses and/or critical fact witnesses that completely make the state's case in chief? Unfortunately, it is impossible to pass on these folks. But one need not hit it out of the park on every witness with a brilliant cross-examination to be effective. Remember case preparation and a thorough knowledge of the facts helps to formulate a cross-examination of any witness. If one develops any line of questioning that can challenge the credibility of a witness, then boldly cross on those issues. Fertile areas might include prior convictions, inconsistent statements, and motive. Remember jurors often choose not to believe witnesses over the slightest, most arbitrary things and their judgment can even be based on the witness’s court room demeanor. If a witness appears hesitant or seems to be hiding something when answering questions which test their credibility on cross-examination, jurors typically decide to give that witness low marks, and a lack of credibility. It is those decisions that lead jurors to reasonable doubt.

IV A well-crafted cross-examination often includes three key ingredients: a pretrial blueprint of the witness’s role and the expected evidence they will give in court; the ability to listen carefully to the witness's testimony and find that moment which exposes the witness’s credibility based on well-crafted questions centered around one's knowledge of the case; and finally the ability to go "off script" or the aptitude to improvise on cross examination if one hears unexpected testimony that must be addressed and undermined. Remember, the worst cross-examinations involve exercising unnecessary questions that allow a state's witness to tell the state's case against your client over again. So, use your best judgment and at the appropriate time consider saying "No questions, your Honor..."

Ten Tips for Cross-Examination Britt Eastland

I Ask only leading questions and questions that you already know the answers to. This is what makes cross-examination so much fun. It is also what makes cross-examination so frustrating to police officers. Once as a former prosecutor, I had a veteran police investigator ask me if there was a manual or book written to help them better prepare for a defense attorney’s cross. Police officers often think that their job on cross is to outsmart and outwit the defense lawyer to his tricky questions. But what they don’t realize is this is only damaging their credibility with the jury. They don’t get that the only thing they can do is answer the questions honestly (even if that means they are admitting to so many things that are helpful to the defense). If the police officer who is testifying on your cross, continues to squirm in his chair, be smart with you, and be elusive to your questions, don’t worry because in the end he is coming off as not credible to the jury. And you can point this out later to the jury in closing argument.

question that relates to the theme of your case. Don’t ever start your cross-examination by asking this question: “Good morning, Officer Jones. My name is lawyer, Joe Smith. I’m going to be asking you some questions. Please let me know if there is a question you don’t understand.” That’s boring and lame. Instead, start right away with a powerful question that will grab the jury’s attention and that will stick in their heads the entire trial, “Officer Smith, you never looked for fingerprints on the gun you found, did you?”

IV Try to remember to mark all your defense exhibits before trial or at least sometime long before approaching the witness to discuss a particular exhibit. When you have to stop and have the court reporter mark your exhibits in the middle of your cross, it slows your rhythm. If you have to do this interruption too many times, it often starts to annoy the judge and jury.

II When the pressure is on, go back to the fundamentals. Remember the two basic purposes of cross-examination: eliciting favorable testimony (this involves getting the witness to admit those facts that support your case in chief and are consistent with your theory of the case and theme) and conducting a destructive cross (this involves asking the kinds of questions that will discredit the witness or his testimony so that the jury will minimize or even disregard them).

III Primacy and recency. Start with a strong question and end with a strong question. Even better, if you can start and end with a strong

V Sometimes you don’t need to ask a single cross-examination question of a witness. If the witness hasn’t said anything that has hurt your case, then it might be a good idea to not ask any questions. Or if they have said some damaging things to the State’s case on direct examination, you don’t want to give the witness a chance to clarify or a chance for the prosecutor to clean it up on re-direct. Sometimes, simply saying to the judge, “Your Honor, we have no questions for this witness.” sends a confident message to the jury that the witness has not hurt your case at all.

VI Pause for Effect. If you get a powerful and favorable answer from a question on cross examination that supports your theme of the case, sometimes it’s a good idea to pause for effect. Wait a little bit so the answer sinks into the jurors heads before asking another question. You might even glance over at the jury and look them in the eyes so that they know that that is an important piece of testimony to remember.

VII If a police officer testifies now about an important and damaging fact that he did not include in his police report, point this out and get him to admit to this on cross-examination. This is something that you can later use in closing argument to show that the officer is either lying or mistaken about certain key facts, which helps support the theme of reasonable doubt.

VIII DWI cases. There are several key questions you need to ask and key responses you need to elicit from police officers in DWI cases to show that the officer might be wrong when he thought your client was drunk, that he rushed to judgment, that the FSTs are made to make people fail, or that he was unfair in his investigation. Some of them include: (a) Get the officer to admit to all the many things that your client did that were right or that were 'normal,' (b) Ask the officer what additional tests he could have had your client do, but did not, in order to have a more thorough investigation (ie: Romberg test or alphabet test), (c) Get him to admit that he gave the instructions to the test only once, that he did not allow your client to practice before

doing the tests, and that the officer has been trained on these tests and performed these tests on numerous occasions whereas this is the first time for your client to do the test.

IX Listen to the witness’s answers. Witnesses constantly surprise you. Unless you are watching and listening, you will miss nuances and gradations in the witness’s testimony. Don’t bury your face in your notes, worrying about the next question while the witness is answering the last one. Organize your notes into cross-examination topics, then formulate your actual questions spontaneously.

X Try to end on a strong question but don’t ask the one-question-toomany. You should ask only enough questions on cross-examination to establish the points you intend to make during your closing argument. This means that you will avoid asking the last question that explicitly drives home your point. Instead, your cross will merely suggest the point. During the closing argument you will rhetorically pose that last question and answer it the way you want it answered, when the witness is not around to give you a bad answer.

MacCarthy Style Cross-Examination Jamie Balagia

My style of crossing a police witness was based on my years as a cop and past conversations with other officers. My style was to keep the officer off balance and catch him in a contradiction. But the jury didn’t always catch these mistakes. Then I met Terry MacCarthy and the light came on.

you saw Johnny on West Avenue

no citizen called 911

at Blanco

no complaining witness

westbound

no near collisions

MacCarthy taught me to control the officer while allowing the jury to get the big picture. I still revert to my old style at times on a really tricky cop. Terry refers to me as “dip shit” for doing that.

light traffic

no evasive actions

a green truck

no drunken driving

a Ford

a working light means no reason to stop

Terry teaches us that this is our courtroom, not the cop’s. We must control the witness with tight reigns.

you saw a violation

you followed Johnny’s truck

General Rules:

a taillight was out

several miles

Don’t use legal terms. Act like you are talking to the jury in a bar.

left rear

no other violations

his vehicle was visible

you turned on your overhead lights

to other traffic

Johnny responded

no one ran into the rear of the truck

he saw your lights

Your questions (statements) are presented to the jury, the witness is there to affirm your statement. It is polite to look at the witness occasionally during your presentation but the jury is your focus.

a simple malfunction

he touched his brakes

a tail light

he signaled

he moved to his right

If the witness resists, walk them around to the correct response and the witness will agree or look foolish. But you must be prepared and present the statement correctly.

no moving violations

safely

no speeding

took the first exit

unsafe movements

in a normal fashion

reckless driving

in a safe fashion

safe driving

a sober fashion

normal driving

Adapt this style to your fact scenario in any type of hearing. It should be short and simple and reinforce your theme. Try it in

Only one fact (issue) at a time. Never initially address the witness with a professional title, just start talking.

You must prepare the jury during voir dire for the behavior of the witness. Ask “Why would a witness evade questions and force you to pull teeth when a simple answer would reveal the truth and allow the trial to proceed without unnecessary delay?” The Traffic Stop: (Issue: minimal bad driving)

sober driving

ALR hearings or PT Motion hearing. Write it out so you can visualize how it will lay out in court. Just the words normal and sober every chance you can force the witness to agree. The witness might not answer and just stare at me or will say “is that a question”. You should have conditioned the judge, prosecutor and the jury to this style during your voir dire. During voir dire ask the jury “Anybody need a drink?”, “Bathroom break?”, “Comfortable?” or “Ready?” I always get a good reply. I will tell the jury “When I make a statement like this you understand what I am asking?” They always agree. I tell them that is my style and they accept it. I tell them I could add in a, “correct?” or “didn’t you?” to every question. They never think I should. Ask “Why would a professional witness object to this style?” That sets up the witness to be a jerk. The objecting prosecutor. Some prosecutors will object with “That is not a question, improper form”. “Your honor the jury understood this style, I was just trying to shorten my cross. I can add 'isn’t that correct' to each question if that would make it simpler for the witness.” Then look right at the witness and ask “Is that really necessary?” You are scoring points with the jury, they get it. If I am forced by the judge to say “Isn’t that correct?” or “Wouldn’t you agree?” I add it to every single question (because you don’t back down). The jury will start getting pissed. After about ten questions, I forget and go right back to my MacCarthy style. By now, the judge just wants the trial to proceed. I also use this style on the judge (ex. “Bathroom break, ma’am?", “Approach?”, “Your honor?”).

Calling the witness “Officer!”

Q: You are unable to show the infraction to the jury?

Used on the third time I am forced to ask the same question. Terry calls this “spanking the puppy when he pisses on the floor.” They get to pee twice and then out comes the rolled up newspaper.

Q: Who can help you show this infraction to the jury?

Presume that Johnny never stepped off the line (Walk and Turn) and the video is clear on that. Q: “Johnny never stepped off the line?” A: He had difficulty walking the line. Repeat the statement. Q: “Johnny never stepped off the line?” A: He didn’t do it perfectly. Now we look away from the jur and stare at the witness. Q: Officer, Johnny never stepped off the line, did he? A: No. (sheepishly) If the officer persists, key up the video, hand him the remote and say “Show us when we can see Johnny step off the line.” He can’t and the jury gets it. Some officers say that they saw the infraction but the two-dimensional video can’t display it to the jury. I will then do something like this. Q: You have special visual powers? A: (who cares what he says) Q: What else did you observe with your xray vision?”

Q: Let’s discuss the other invisible infractions you saw that night. At this point I get ready for the Judge to give me that look and I move on since there’s no sense in beating a dead horse. Yes, that was the State’s objection the last time I did this. My response was “Your honor, I will get on this dead horse and ride it to a not guilty if that’s what I have to do to get this witness to answer my questions." I got away with that because the judge was super pissed at the cop by now. Of course, in that case my client was drunker than Cooter Brown and the video showed that without super x-ray vision testimony by the cop. But hey, we are tenacious by nature in this business. Sometimes I become a 'dip shit' on purpose and deviate from Terry’s teaching. This can make my point but does violate the message of this writing. I do not recommend this Dude style unless you are playing for a fumble and the only way to win is if the witness implodes. So, if a witness tries to avoid answering my question by rambling on about something I didn’t ask. I will do this: Q: So Johnny was able to perform the One Leg Stand test without any difficulty? A: Well, some people practice these tests and can pass them when intoxicated. Q: By your response I understand that Johnny was able to perform the One Leg Stand test without any difficulty whatsoever!!! A: (dumb look on face of witness) Q: Isn’t that correct? A: Yes Buy Terry’s book and read it. Then tell us how it helped you get those two words we love to hear.

Just a Few Tips George A. Taylor

Preparation is the key to everything in cross-examination. Study your target. If he/she is a cop, always use the Freedom of Information Act letter to get their history as far as complaints/discipline in the past. This can be devastating to the target. For example, they may have been disciplined for making a false report. Ask them if everything in their report that they testified to was true about your client. When they say yes, then ask if they always testified truthfully and that everything they put in their reports was always true. Then spring the letter on them. It’s over. This strategy was effectively used by my friend and fine lawyer Michael Callahan.

Cross-exam is a probing process. You must probe for a weakness and then be ready to pounce when it presents itself. Much of this comes through feel and practice, so I can’t say enough about trying all the cases you can; even Class Cs are great for this.

V You can lead the witness on cross-exam, so do it. All the time! It is your chance during the trial to do this and it should be taken advantage of!

II You can learn about your target from other trial lawyers who may have had the same officer or witness on the stand. If they had success, find out how. Find out (if you can) about the witness’s habits, hobbies, education, where they worked before. There may be something in their background that can be used in cross. You will learn something about the sensitive areas of their life, which you may be able to exploit once you are into the examination.

III If you have what you think are killer questions, spread them out and save them. So if you anticipate your cross to be 45 minutes, put the killers every 15 minutes and have in your mind a segue to them.

VI Listen to the witness’ answers carefully and look for that opening in tip #4. If you write every question down and are reading through them and thinking about your next question, you’re not listening to the witness’ answer.

VII And of course old school stuff still works: (A) don’t repeat direct testimony; (B) know the answer to your question; (C) don’t ask question if you’re not hurt by witness; and (D) end on a high note.

Cross Examination Tips Eduardo Garcia

Never ask a witness a question that

Get what you need from the witness and get out. Resist

you do not know the answer to.

asking questions that emphasize what other witnesses have testified to that are harmful to your defense.

II Do not pattern your cross examination on the state's direct examination of a witness.

III Never emphasize strong or damaging testimony.

IV Do not feel the need to ask questions of every witness. If the testimony did not hurt, do not chance allowing unwanted testimony to come in by asking what you think is an innocuous question.

V Make sure that you have complete discovery in advance of trial, particularly, of the state's witness list. Insure that you are thoroughly familiar with what testimony each witness will offer.

VII Do not refer to one who is listed as a victim in the case as the victim. Use Mr., Ms. or the complainant. Likewise do not refer to any location referred to as a crime scene.

VIII Do not to ask questions that begin with 'W' â&#x20AC;&#x201C; what, where, who, or why.

IX Learn from lawyers that try cases. Make an effort to find out who is in trial and go watch. Develop your own style, but it's a great idea to see how other lawyers do their thing.

X Do not ask that last question you knew you should not have asked that destroys anotherwise effective cross examination.

Re-examining the Ten Commandments of Cross-Examination Jefferson Moore

Years ago Irving Younger, an eminent lawyer, judge and law professor, wrote his 10 Commandments of Cross-Examination. For decades now numerous authorities have cited it as courtroom gospel; however, many of Irving Younger’s commandments are just simply not true.

fore you ask the question so the jury understands why you are asking the question. A short question every time is not applicable to every situation.

2. Short questions, plain words.

Plus, the jury is not going to follow your cross-examination very well if you make all the questions too brief. No one talks in short questions all the time. You will look eccentric and abnormal to the jury if every question is posed in a staccato fashion. You get better results with the jury if you have more of a conversational tone and not something that is truncated and unnatural.

3. Always ask leading questions.

4. Don't ask a question to which you do not know the answer.

This is not true. As you will see in an example I have below, you can ask open-ended questions because there are times when you do not care what is the answer. Plus, if you use only leading questions throughout an entire cross-examination, the monotony of your delivery will bore the jury and they will tune you out.

Here are the Ten Commandments of Cross Examination: 1. Be brief.

5. Listen to the witness' answers. 6. Don't quarrel with the witness. 7. Don't allow the witness to repeat his direct testimony. 8. Don't permit the witness to explain his answers. 9. Don't ask the "one question too many." 10. Save the ultimate point of your cross for summation. These rules are not helpful and in some cases they are outright wrong. Here’s why:

4. Don't ask a question to which you do not know the answer. Definitely not true! There are many times you do not know what the answer is going to be, but you can set up a cross-examination where it does not matter. I will show this in my short example below. You can go with either the “yes” answer, “or the “no” answer. Either way you can drill the witness down to where the jury will view the witness with suspicion.

1. Be brief. 5. Listen to the witness' answers. Maybe. It depends on the witness. I have been brief to the point where I stood up to say, “No questions,” to the opposite extreme where I have had the witness on cross-examination for hours and hours. 2. Short questions, plain words. Good advice, mostly. You want the jury to follow your cross-examination easily and short questions with plain words help them to do that. Sometimes, however, you need context for the question. In that case, the better tactic is to pose a brief narrative be-

Yes, I totally agree on this one Commandment. I have seen lawyers who are so tied to their prepared cross-examinations that they blithely go on to the next question without proper follow up to the answer to the previous question. Be flexible with your crossexamination. You can always go back to the point you were going to make later.

Yes, of course, at all times. But, if the witness is not answering your question, stick with it until he does. I agree with Irving Younger not to quarrel with a witness, but don’t back off either. 7. Don't allow the witness to repeat his direct testimony. Maybe. If the direct testimony was damaging to the opposing side, you want to have the witness repeat the direct. Or if the witness said something that you can prove is not true, you want to have him/her repeat it. After he does so you confront the witness with the exhibit or whatever it is that proves the lie. 8. Don't permit the witness to explain his answers. Not true. I have even encouraged many witnesses during cross-examination to explain an answer by asking, “Can you explain that?” I do this when I know that there is no good explanation. Let the witness squirm. Any answer that lacks credibility gives me even more opportunity to show the jury that the witness is not believable. I show this in the example below. Plus, consider that if you cut off the witness who is going to explain an answer you look as though you are hiding something and that hurts your credibility. Moreover, if your opponent is awake, she is going to bring up the issue during re-direct and let the witness explain the answer anyway. The better plan is to let the witness explain an answer while you are in control of the witness, not your opponent. So let the witness explain away and if the answer truly is “bad” and is something you neither anticipated nor can you recover easily from, here is what I say: “Fair enough Mr. Witness, but that doesn’t explain… [and I go into something else that is strong for me even if it is totally unrelated to the current line of questioning.]”

6. Don't quarrel with the witness. I think this depends on the definition of “quarrel.” Should you keep your composure?

Responding to a “bad” answer this way maintains your credibility with the jury by admitting you elicited something “bad.” They

get it. It happens sometimes. But at the same time by quickly going into something else you distract everyone from the “bad” answer. I have seen where even the opposing counsel does not pick up on it and forgets to bring it up during re-direct. 9. Don't ask the "one question too many." What the heck does this actually mean anyway? Who can determine that a question is “one too many” before the witness answers the question? If you are prepared, you are not going to be caught off guard by any answer during cross-examination. Believing that you can ask “one question too many” promotes timidity and that is the last thing you want to have when you conduct a crossexamination. This idea that you can ask “one question too many” refers to a legendary case where a defendant was accused of biting off another man’s ear during a bar brawl. A witness admitted during cross-examination that he did not actually see the defendant bite the ear off. Allegedly, the lawyer then asked “one question too many” by asking how the witness could say that the defendant was the ear biter. The witness replied, “Because I saw the defendant spit the victim’s ear out of his mouth.” Courtroom mayhem ensued. The lawyer, vanquished by asking “one question too many,” walked dejectedly back to his seat. First, I question the veracity of this account. It is implausible that the prosecutor would not elicit from the witness this great story of the defendant spitting out the victim’s ear. Second, the defense lawyer should have known that this was going to be the answer to the question. A minimal pretrial investigation with a witness interview or a thorough interview with the defendant-client would have brought this fact to light. 10. Save the ultimate point of your cross for summation. What?! With all due respect to Mr. Younger, this is horrible advice. Why would you ever save the “ultimate point” of your cross examination for the closing argument? Why would you ever keep the jury confused and in the dark about your cross-examination? Nothing is more powerful for the jury than to see the witness on cross-examination admit the “ultimate point” of your cross-examination. That image sticks in the minds of the jury. Later during your closing argument you can keep bringing up the image of the witness admitting your “ultimate point.”

If you wait until the closing argument to explain to the jury the purpose of your crossexamination, you are too late to convince them of anything. This idea that the jury is going to listen in rapt attention to your closing argument to clear up what was the “ultimate point” of your cross-examination is fantasy.

Answer: “Yes. The machine was broken. I learned that fact when I reviewed the tape before I put into the evidence locker.”

An Example of an Effective CrossExamination that “Violates” the 10 Commandments of Cross-Examination.

Put him on the spot with something related to his answer. You don’t know how he is going to answer this new question (a violation of Commandment 4), but you do not care if he says “yes” or “no” to this. For instance, if he says, “Yes,” he did let the supervisor know, you can ask all sorts of question about that to pin him down about it. Sooner or later it will be apparent that he did not tell the supervisor about this broken video machine. If he says, “No, I didn’t let the supervisor know,” you can ask why he did not let the supervisor know this important detail about the arrest. We’ll pretend he says, “No.”

I do not believe that the 10 Commandments of Cross-Examination are valid and will show you in this example. Suppose you are crossing a police officer in a resisting arrest case and the officer claims that the patrol car video was not working that particular night. You want to show that the missing video excuse is highly unlikely. Consider the answers to the following questions with my com-

Nothing is more powerful for the jury than to see the witness on cross-examination admit the “ultimate point” of your crossexamination.

mentary in boldface. I’ll alternate between “yes” and “no” answers throughout this short dialogue. You: “Officer Jones, can you explain why there is no video from the patrol car for this incident?” This question violates Commandment 8 (Don’t permit the witness to explain his answer). But everyone in the courtroom is already questioning the fact that there is no video. You can bet that there is no plausible explanation or at most a weak explanation as to why a patrol car video is not working. Why? Because the prosecutor did not bring it up during direct examination. Let the officer give you the explanation so that you can use his own answers against him. We’ll pretend he says, “Yes,” and gives an explanation. You do not care what that explanation is.

You: “Really? Man, you must have been shocked when you learned that. I’m sure you informed your supervisor about this broken equipment?”

Answer: “No, I did not let the supervisor know.” You: “Really? Why? Was it not important or something? How is he going to answer that? If he says it was important, then he looks foolish for not telling the supervisor about it. You follow up any “yes” answer with, “Well, if it was important, how come you neglected to inform the supervisor about it”? But if he says that it was not important then you get to ask, “If it was not important, then why do you guys even bother putting video into the cars to begin with? Why don’t we just take them all out of patrol cars and save the taxpayers some money?” And how is he going to answer that new question? His answer is going to be either a contradiction (“We don’t take the video machines out because they are important,”) or he has to say something weak like, “I don’t know.” If he says, “I don’t know,” you can ask, “Why don’t you know? Are you telling us that you use equipment that you do not know why you are using it?” You get the idea. As always, I encourage anyone to contact me if they have any questions regarding the presentation of a case. The best way to contact me is through email at MooreLegal@ Gmail.com. Win cases!

Liar, Pants Fire! by Rosie Reyes in collaboration with Arlene Gay

Liar, s on scuffle. However, in two trials, I was able to get the State’s witnesses to call themselves a liar; one was a Bexar County Deputy doing security work at a bar where the client was arrested for an assault of an entertainer/ singer and the other was the “victim” in a girl [ex-wife] on girl [current wife] fight at a Chick-fil-a Restaurant.

In both cases, the prep work which included the detailed review of the police reports, photographs, investigating the scenes and going to the scene via satellite imaging via Google Earth and “youtube” and facebook images and videos, made it possible for us to assert that the witness was lying.

had the Officer then testify that the lies were not lies but errors in reporting—he is only human, right? This is where going into details about when the report was written became important. The officer testified he wrote his report while at the scene. During re-cross, he confirmed there was a long delay between writing the report and transporting the client to the magistrate’s office. He further testified during that time he could have corrected his report but he failed to do so. It also became apparent that the Officer during this delay failed to investigate—the fight was in a crowded bar but no other witnesses were identified or interviewed.

There is also a wariness to characterize the testimony as a lie. But boy, when I have a witness that is lying, the adolescent tomgirl in me wants to jump up and yell “liar, liar pants on fire.” Of course, the English major in me would quote the first line of a poem [unknown author] “Deceiver, dissembler, your trousers are alight!”

Our goal was to have the witnesses call themselves a liar. With reference to the deputy, he stated in his offense report and testified that he witnessed the incident. In cross-examination, to discredit the believability of the officer’s factual testimony, I had the officer adamantly confirm that what he wrote in his report was accurate to what he saw, where the fight was in the bar, and the details to his investigation. With that groundwork, once the questioning turned to the layout of the club, it became apparent that he could not have physically witnessed the fight. I ended cross examination by having the Officer state “yes” to a series of questions about the false statements in his report. The last question I asked after all these “yes” responses was “So, Officer you lied on your report?” Of course, he hesitated in responding. I prompted him by telling him there were only two responses he can give “yes” or “no.” By answering “yes,” he would call himself a liar; by answering “no,” he would show himself to be a liar. He answered “yes.”

What was interesting in the second case was that the witness lied about evidence she had no reason to lie about. The prosecutors offered into evidence pictures of the victim’s injuries. The victim testified that she was triaged directly after the incident at the medical clinic she worked at [the clinic was located in the strip mall next to the Chickfil-a] and the pictures were taken by her employer. On closer inspection of pictures, we discovered that these pictures were taken on the second floor of a building—there were stairs in the background. The clinic was located in a one-story building. Again, I asked her series of questions which allowed her to adamantly confirm the veracity of the pictures; where and when they were taken. When she was asked to identify the existence of the stairs in the pictures, her facial expression spoke volumes. The next question was “So, you lied?” Her answer was “yes.” All her answers to other questions that followed were now suspect. We argued in closing that you should not believe her since she lied about something she did not have to lie about—what else has she lied about?

Seriously, the danger in “outing” a witness as a liar is giving the impression of a playground/school yard scuffle. As we know, either by personal experience or being a bystander, there is no clear-cut winner in a

Of course, the prosecutor attempted to “sanitize” the Officer’s testimony by using the counter to “LIAR, LIAR, PANTS ON FIRE” -- "I DON'T CARE, I DON'T CARE! I CAN BUY ANOTHER PAIR!" The prosecutor, in redirect,

When we spoke with the jurors after the trial, the jurors did not believe her account of the incident. Basically, the jury came back quickly with their verdict; they said “Liar, Liar, pants on fire—not guilty.

It seems to me there is a general belief by jurors that a witness on the stand will tell the truth. The belief is grounded on the very act of the person being sworn to tell the truth. More importantly, jurors are inclined to believe that police officers tell the truth; an officer is even given a “helping hand” by the prosecutor who will couch his or her questions with the phrase “to the best of your memory or even abilities.” The effect is the officer’s testimony that is contrary to the truth or [let’s be blunt] a lie, can be sanitized.

10 Tips for Successful Cross Examination Charles Bunk

I Don't get too caught up in prepared questions. If you are only worried about the questions you have prepared ahead of time, you tend to be so anxious to ask the next question that you stop listening to answers given. Be prepared to leave your script to follow up on favorable responses.

II Lead up to your crucial questions. Many times people immediately begin cross in a confrontational manner which then shuts down the witness. Ask questions that are benign and will make it appear you are not out to crucify this guy, setting him up for the grilling that is ahead.

III Pay close attention to direct. Many people are so caught up in taking notes of direct testimony, they are not listening to the actual answers being given. There will be, with certainty, something you did not expect that will be said and is of tremendous value to your case. It may be at the tail end of an answer or an attempt to answer a question about something different. Nevertheless, if you are not focused on every word being said by the witness, you will miss some home run opportunities.

IV Mix it up. Don't cross every witness with the same voracity. Mix it up, obviously, lay witnesses are treated differently than officers, but use different techniques on different witnesses. While it is fun to prove they are all lying, there are lots of ways to expose that to the jury. Whether it be loud vs soft, fast vs slow or shock vs I knew that, mix it up.

V Look for the segue. In listening to the answers you are given, be prepared to segue instantly into another

topic if the answer given can be beneficial to you. Don't tell yourself, "I'll get back to that." Often times people forget to circle back and helpful answers are not taken advantage of.

VI Maintain eye contact with the witness. While you may need to glance at your notes or stop to review something while questioning and getting answers, look the witness directly in the eye. It indicates the seriousness of these questions to both the witness and more importantly the jury.

VII It is okay to trick a witness, but pick your spots. There is nothing more rewarding than confusing the witness on cross and perhaps having your 'aha' moment, but pick your spot. While juries expect you to ask tough and thorough questions, they do not like it when it seems you are taking advantage of a witness. This is especially true with lay witnesses. Some lay witnesses may not be the brightest witnesses and it can turn off a jury if you go out of your way to point out their lack of intelligence. Not every witness deserves this. Officers, experts and witnesses who appear to "know it all" are absolutely fair game and should be attacked from all angles. But, perhaps, the old woman next door is not a good candidate for tricks and bullying in your questions.

VIII Do not get caught up in having the last word. Please, know when to quit. Just because the State never knows when to stop does not mean we should not be afraid say, "No more questions." This is a mistake I see constantly and it kills the effectiveness of what had been a good cross.

IX Be Prepared. If you are going to be crossing an expert,

know your subject matter. If you appear to have a working knowledge of the subject matter, the jury will listen to you. If you are floundering and saying things like, "Well I'm no expert, but..." or "You're the expert," you are telling the jury they should listen to him and not you. You want the jury to think you are absolutely an expert and have done your homework in advance. You cannot cross an expert with any effectiveness if you are having to look up words and figure out what he is saying.

X Don't ask any real questions. This is your opportunity to tell your story. Do just that, statements that lay out your version of the facts that are disguised as questions are very effective. This is where the famous, "Isn't it true?" can be used. It can be as easy as: Q: You didn't actually see with any certainty who did this? A: Q: In fact, at best, you told the police, you think you saw this or that? A: Q: Truth be told, you actually don't know with any certainty who did this? A: I left the answers blank, because, who cares what they say, your questions are based on knowing what they have to say, because they said so earlier. So tell the witness what you know and have them agree. If they try not to, then use their prior statements to make it appear they have changed their story to appease the State.

Mistakes I Have Made Philip Bozzo, Jr.

These are tips, which are tactics within the whole strategy. Aside from transcripts from those masters of cross-examination, the single greatest treatise for overall strategy that I have found is Cross-Examination Science and Techniques, by Posner and Dodd. The most important part of cross-examination begins, as we all know, at the beginning. Preparation is essential to the skills of crossexamination.

I |Be prepared for the particular type of hearing. Cross examining an officer in a trial setting is a different examination than from those at non-jury or non-trial settings. By the time you take the officer on cross examination your jury has already heard from you in voir dire, and has heard from you in opening statements regarding where you are taking the jury with your story. Trial preparation begins back before the ALR hearing. In the ALR hearing you will have attempted to get some commitments from the officer that you can then begin to weave into your examination for use at the motion to suppress hearing and subsequently at trial. By the time you get to the motion to suppress hearing you should have his transcript from the ALR as well as his records from the appropriate civil service commission and the Texas Commission on Law Enforcement. Laid in front of you would be the transcript from the ALR hearing, the transcript from the motion to suppress hearing, the police report and all videos, his training and experience records, and your preparation of your storyline for trial.

II Write out your cross examination. Write your cross-examination out question by question, using the 'issue' or 'chapter' method. The heart of the cross-examination will be a storyline presented by you. Since you will be telling the story, in almost in every instance you will use leading questions. Please do not minimize the preparation of cross-examination. It is the time you tell your client’s story

through your questions and the answers of the witness.

III Prepare for objections. Prepare prior to cross-examination for objections that will arise during your cross examination. Be prepared with a proper legal response if called on to do so. If the Judge sustains the objection be prepared to present your question in another fashion. Arguing with the Judge over the sustained objections loses you credibility and valuable rhythm in front of the jury.

IV Don’t argue with the witness. You are the one providing the questions and the answers should be provided by the witness. If you have spoken a weak or vague question to the witness then be prepared to fix that by breaking down the question into separate 'one fact' questions. Use hand motions or body language to disengage the witness from being uncooperative or unresponsive.

V Avoid using the Judge to control your witness. Using your body language and hand gestures (hand 'stop sign,' open palm invitation to answer, turning away from witness’ non responsive statements) can result in smoother question/response rhythm which ultimately improves your ability to tell your story to the jury. Hand gestures, body language, or other nonverbal methods used to control the uncooperative witness will not be part of the record.

VI Dynamic verbal pointers. When preparing your question-by-question truth story you will come to a point where the inconsistency of the witness can be pointed out to the jury. An example technique is the use the phrase “This is your present, (or current version) of today’s events…” or “Now you are telling this jury…”

VII One question, one fact at a time. In order to get to the inconsistency, work through the details of the direct testimony, one fact at a time. There is no reason to rush to argue about a statement that is impeachable. Laying the facts out, one at a time, about the consistencies of the original statements on direct examination will illuminate the impeachment to the jury. The impeachment technique, when used again and again in cross-examination will create necessary skepticism among the jurors.

VIII Guide the witness, Guide the jurors. Preparing the cross examination of the witnesses, in detail fact by fact, will enhance the overall presentation of the totality of the case. An example is this: In the opening statements, you will show the jury perhaps an overview of the state direct testimony if the state has not already laid it out. You will tell the jury that there will be inconsistencies but perhaps not in the form of language. Then at cross-examination you will take the witness step by step through each fact of direct testimony. The jurors will be looking for the inconsistency, they won’t be bored, and they will get to use a bit of the detective in them.

IX Listen and watch. The cross-examination rendered question by question by question (physically prepared in detail prior to the examination) still requires the examiner to listen to the witness. Maintaining eye contact throughout the examination both questioning and responding is critical. Those few times when you may lose eye contact will be those times when you will be employing non-verbal techniques to control the witness.

of confidence in your defense or rebuttal as a whole. Various parts of the trial may require an occasional flash of anger or astonishment at the witness response. You must set the overall emotion of the trial beginning at voir dire. The greatest enduring emotion throughout the trial should be more gentle than histrionic, volatile, or “in your face”.

X Use the concept of “facts beyond change”. There are those facts that are beyond change in your favor and facts that are beyond change that favor the opponent. You must look for and remember that facts without facts beyond change cannot be contradicted without causing problems with the jurors. Be confident in using facts without change to establish inconsistencies. Your theory must to neutralize those facts beyond change, and raise jurors’ skepticism about the facts and differences which may be in dispute. When preparing your case you must remember to know which facts are in dispute and limit your fight to that battleground.

Overall strategy You are the exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given to the testimony. This may well be the most important part of the jury charge. The story that will be told by the witnesses through direct examination will construct the State’s version of the truth. Cross-examination is designed to get to the real truth. You will need to deconstruct the witness statements by showing these relevant inconsistencies to the Jury.

Using a hand or body motion in cross examination is a viable part of the non-verbal techniques. Using or appearing angry or frustrated or indignant in the course of the examination will lose the jury’s confidence in your story. This results in the jury’s loss

Cross-Examination Tips Robbie Ward

I Organize and prepare. Go through the entire file and pull out information to use during cross-examination or to get out the information you want for your case. II Use cross-examination to help argue your case. You know the points you want to make from opening and closing. Do it with cross too. III Use leading questions. Keep it simple and short. IV Know when to stop. If you impeach a witness or gain the advantage, be quiet and sit down. V Control the witness. Don’t let them explain. VI Listen to direct questions and answers. VII Be polite. Don’t argue with the witness. VIII Know the answer before you ask the question. IX Don’t be repetitive. X Start strong and finish strong.

Ten Lessons Learned on Cross-Examination Robert H. Featherston

Introduction William Shakespeare wrote: “All the World’s a stage, and all the men and women merely players:…” The courtroom certainly has its theatrical element, always your professional demeanor matters! A good criminal defense attorney will always keep a cool head, using emotion and theater to their advantage. Anger, grief, courtesy, respect/disrespect are all tools of persuasion before the jury, to be wielded with a cool head. This is the first lesson to be learned in constructing a successful cross-examination. You will prevail by knowing your case better than opposing counsel, appearing more professional, polished and in control than the State. Getting ready for cross Lesson two, Sir Walter Raleigh, in his trial for treason, was denied the opportunity to test the veracity of the testimony of the witnesses against him. He was found guilty and ultimately lost his life to the executioner’s ax. BE PREPARED! Squandering your opportunity to persuade the jury that there is a reasonable doubt, places your client in the same box as Sir Raleigh. Always, at least outline the issues that you want to bring before the jury through the cross examination of a particular witness.

Lesson six, Sugar or vinegar. Courtesy and respect for the witness should be your watchwords, even when its evident the witness is hostile, arrogant, a lying SOB snitch and a prick. You are in control; your audience is the Jury. You are persuading the Jury that your story is worth listening to. Contrast your professional demeanor with that of the witnesses and maintain your upper hand with the jury. How not to appear to a Jury Lesson seven, Who’s talking here. You control the conversation. You can ask open-ended question for icebreakers, for issues that don’t orbit around the actual purpose of your cross. But, when you get into the purpose of your cross, you do the talking, you communicate with the Jury, not the witness. Ask questions that call for a yes, no or I don’t know answer. With experts you must be extremely careful as to how you frame your hypothetical. Build your hypothetical box then ask for a yes or no answer. Lesson eight, KISS. Keep it simple stupid! When you have met your objectives with the witness, get out. The Jury has been there all day and will appreciate your brevity.

Lesson three, Grooming. Good hair-cut/style, pressed suite, shined shoes, nice cologne/perfume that does not overwhelm, these are the keys to looking professional. Oh, and don’t forget your client! A nice long sleeved collard shirt does wonders to soften the blow of all those tats.

Lesson nine, Think before you act. This is especially true when dealing with experts. Do not enter a dialog with an expert! Do not give them an opening to pontificate. Remember, you can also object to their “sidebar comments” and “non-responsive” answers and you should do so early on.

Lesson four, Demonstrative aids. Most folks learn visually. Research on communication would indicate that 80% is visual! So use demonstrative aids. Yes, of course it requires prior planning, however well thought out aids will help you persuade the Jury. Aids are essential in establishing the hypothetical box you want to place the expert in. Plan this in advance! On the “fly” and you will “die!”

The tenth lesson, Objections. Don’t view objections as hurting your case. In fact, the exact opposite is true! You should view objections as encouragement that you are winning at your cross-examination! Maintain your communication with the jury; watch the impact your cross has on them and the response/feedback they give you when an objection is raised by the State. Turn the objection to your advantage!

OK, let's cross Conclusion Lesson five, Know your audience. It’s the most natural thing in the world to want to look at the person to whom you are talking, usually because they are your audience and the individual you are attempting to persuade. For a witness on cross, this works well for questions that are meant to break the ice and establish a dialog with the witness. However, your real audience is always the jury! Often, you will do more to persuade the jury by communicating with them during your cross of a witness. Certainly, for your main issues, communicate with the jury through speech and body language; persuade the jury, it’s the jury that matters, not the witness.

Cross-examination is the greatest tool in your arsenal of persuasion. Along with a professional demeanor, a positive attitude, knowing the case better than the State, these are the foundations upon which you build a successful cross. “Yes,” “no”, “I don’t know,” are the best possible outcomes for a witness to elucidate, while you communicate with the Jury and persuade them with your story. In keeping with the KISS principal, I hope this helps in your endeavors!

10 Tips for Cross-Examination Gerald Goldstein

In my experience, there are three basic goals of effective cross-examination. First is to expose a witness’s bias or motive for telling the story he or she has told on direct. The second, is to undermine that hostile witness’s credibility. And third, is to elicit favorable facts which even a hostile witness may be able or compelled to reveal. The following suggestions for achieving those goals have been stolen from much better advocates than I, and through the trial and error method passed on to me by my mentor and patron saint, Maury Maverick, Jr., who long ago gave me this sage advice. Cross-examination is much like the old hen pecking around the chicken yard. Every hundred pecks, she comes up with a kernel of corn. The other ninety-nine, she ends up with a beak full of shit! Hopefully, what follows will help minimize that foul mouth syndrome.

I Preparation. Effective cross-examination starts with mastery of the facts of your case. Controlling a hostile witness often depends upon the witness’s and the jury’s recognition that you know what his or her answer has to be, if that witness is to appear believable. Your superior command of the facts is the most powerful tool you can display in convincing the witness to give you the answer you want and are entitled to.

II Have a story you want to tell. Trial is theater, and just as the prosecution has an account of the events which their witnesses will portray on direct, your job is not only to undermine those witnesses’s credibility, but

also to elicit any fact which may help tell your side of the story, your theory of defense, which demonstrates why your client is not guilty of the charged offense.

III Plan the order of your questions. If you think that you can weasel favorable responses from a hostile witness that serve to tell your side of the story, extract those answers before you dump on that witness. It is only logical that a witness will more willingly provide information when asked in a non-confrontational fashion.

IV Be realistic about what you can get from the witness. Don’t try to win your case with every witness, particularly hostile witnesses such as law enforcement and victims or their family. They are spring loaded to eat your lunch! My experience is that if you don’t make a point in cross-examination forcefully, it may be lost on the jury. However, if you hammer your theme too hard or too often, you may simply educate that witness or opposing counsel, allowing them to undo all that you have so painstakingly accomplished.

V Fight for discovery. One of the most useful and effective tools in cross-examination, is impeachment with a prior inconsistent statement. See: Rule 613, F.R.Ev. and Tex.R.Ev. But in order to cross-examine a witness with their prior statements, you have to obtain those documents and/ recordings sufficiently in advance to study them and thoughtfully plan how best to utilize them. Make full use of the new Michael Morton Act

[Art. 39.14, Tex.C.Cr.P.] provisions and Rule 16, F.R.Cr.P. in federal court. You also want to push for discovery of witnesses’s prior statements and reports at pretrial hearings [See: Rule 26.2, F.R.Cr.P. and Rule 615, Tex.R.Ev., which no longer limit production to trial testimony, and See: Rule 12(h) of the federal rules which expressly provides that law enforcement officers are considered Government witnesses, even if called by the defendant].

VI Have a methodology. I like to divide each issue and important fact contained in a statement and/or transcript, into a separate file. But whether you use files or a notebook, or some other method for organizing your cross, it is critical to be able to instantaneously reach for a particular statement or phrase in a transcript, when the need arises. Organization does not mean sticking to a written script. It means having your ideas separated by issues that you anticipate, and being able to quickly gain access to that document in order to make effective use.

VII Make full use of Rule 611(c) [Leading Questions]. You gain power and advantage over a hostile witness through the use of leading questions [Rule 611(c), F.R.Ev. and Tex.R.Ev.]. While a witness is always more effective and believable when they get to tell their own story, their own way, adverse witnesses are not called by the prosecution because they are trying to help your client. Try to develop and weave your story around “truths,” that is, facts that the jury knows must be true from all that they’ve heard, seen and common sense tells them must

be true. Turn that “truth” into a rhetorical question that the hostile witness will have to agree with in order to be believed. Make your point by way of a leading question: “Isn’t it true officer, that...” then sit down. Save your argument for closing.

portant fact (one that is helpful to your client) from his or her report, don’t simply ask that as a question. I like to dwell on same. It sure beats discussing your client’s unfortunate familiarity with the facts of the case. My preference is to ask the following:

Then, in that same determined voice, rise to your feet and ask, “Your Honor, may I approach the witness?”

VIII Train witnesses with a Pavlovian mantra.

“Officer, much of your time and training have focused on report writing?”

“Isn’t it a fact that on _____, in a courtroom much like this one, you swore under oath that...?”

The rules for utilizing a prior statement on cross-examination vary slightly from federal to state court. See: Rule 613, F.R.Ev. and Tex.R.Ev. Regardless, I like to set a question up with the prior statement at the ready. Ask the witness: “Isn’t it true that on...” If the witness gives the appropriate response, move quickly to the next question. If the witness denies same, rise to your feet and request: “Your Honor, may I approach the witness?” At the witness’ side you proceed: “I call your attention to what has been marked as Defendant’s Exhibit _____” “Calling your attention to the highlighted portion of Defendant’s Exhibit _____”

“It is an important part of your professional duties, is it not?” “You understand the importance of report writing, do you not?” “It permits you to memorialize facts at or about the time they actually occurred?” “That allows you to refresh your memory weeks, months, sometimes years later, when you are called to testify?” “That allows you to be more accurate and more truthful when you come to testify under oath before a jury like this?” “And that serves to protect both you and citizens like my client _____,”

Figuratively, stick their nose in it and ask that they read the portion to the jury.

“Now officer, would you point out for the jury where in your 3-page report you mention anything about _____?”

Then inquire: “Is this your signature?” “Was that the truth, when you wrote _____?”

X Prior testimony.

The next time the witness sees you rise to your feet and ask “Your Honor, may I approach the witness,” with your statement file in hand, the witness will know what’s coming.

Obtain transcripts of any prior testimony by the prosecution’s witness (order transcription from prior hearings where the witness has testified). I have found that any piece of paper with those little numbers down the left hand margin, may as well have been chiseled in stone and brought down from the mountain by Moses himself.

IX Omitted Information. If an officer has omitted a particularly im-

“I call your attention to what has been marked as Defendant’s Exhibit _____.”

“Did you take that same oath, that you took here before this jury today, to tell the truth, the whole truth, and nothing but the truth?” “Was that the truth when you swore that _____, on _____, in a courtroom much like this?” “Is it still true today?”

XI The hardest decision. If you don’t’ think you’re going to get anything favorable from the witness, consider keeping your seat. Paraphrasing Winston Churchill, “It is better to remain seated and be thought a fool, than to rise to your feet and remove all doubt.”

Cross-Examination Tips Gammon Guinn

Develop your own style. If you are not comfortable with your style it will show and lessen your confidence. A lack of personal confidence is interpreted by jurors as a lack of confidence in the case. Don’t be afraid, however, to try new techniques; you won’t improve without practice. Stay focused on the goal. Don’t be distracted by instant gratification. While the client may be impressed by a good attack, the goal is a not guilty verdict, not “My attorney really tore up the witness.” Clients first, egos second. Finesse rather than street fighting will help the jury identify with the defense. A lawyer who appears argumentative, boring or arrogant alienates the jury. Don’t fight with anyone in the courtroom, especially witnesses. The jury resents it and becomes protective of your opponent. A not guilty verdict is what matters, not winning collateral strikes. Play nice. Asking questions or making objections that are mean spirited or unnecessary, really upsets the jury and makes them think information is being hidden. Staying on point and letting the facts flow smoothly with a logical progression intrigues the jury and keeps the case interesting. If the prosecutor seems nice, be nicer. Never attack the witness, including police officers. Juries become offended. People want to believe officers. We give them guns, uniforms, a badge and much authority. We send them out to protect us. Juries do not want to think of the police as liars. It is better, for them, to believe they are tired, overworked and therefore, make mistakes. Be careful, as well, with the elderly, the pregnant or any other witness the jury may see as vulnerable. Slow down. Carefully formulate questions with purpose. This leads to better questions. Develop a plan for each witness. Rushing a witness makes them obstinate and interested in sabotaging the attorney and the client. Deliberate questions will minimize the chance a witness will “accidentally” blurt out damaging information. In addition to advance preparation for a witness, be sure to repair any damage the opposing counsel has caused. Before passing the witness, politely ask the court for a moment to look over notes. Always ask, on the record, to reserve the right to recall witnesses. If a witness has been excused the Judge may refuse to bring them back, particularly if you did not subpoena the witness yourself. Preserve the record. Always remain cognizant of the record. It may be a matter of life or death.

Cross-Examination Tips Albert M. Gutierrez

It is has always amazed me that in a civil case I can take pretrial depositions of important witnesses for up to 6 hours per witness before I ever get into a courtroom, but not in a criminal case. It seems to me that life and liberty would require just as much or more. Although we should have the opportunity to confront witnesses before trial under oath, the next best thing is to just confront them before trial. My number one rule is to ask every witness, within the rules and always with a witness, to speak with me before trial â&#x20AC;&#x201C; especially law enforcement. One of two things will happen: (1) the witness will say yes and you get information that will help you evaluate the case, or (2) the witness will refuse to speak with you. The second answer can be very valuable during trial once pointed out to the jury. It is a simple point made quickly. Lawyer: Did I introduce myself to you before trial? Witness: Yes Lawyer: I asked you if you would speak with me and answer some questions I had about your testimony but you refused, correct? Witness: Yes, I donâ&#x20AC;&#x2122;t have to talk with you. Lawyer: Agreed. Did you speak with the DA before the trial? Witness: Yes Lawyer: How many times? This is just a sample of how things might go but you make a simple point that all is not fair in the world of criminal justice.

Cross-Examination Hints Bernard Campion

As with all other facets of a trial, a good cross examination starts with thorough preparation. Other than the basic do’s and don’ts that you have all heard many times, cross examination, for me at least, has never been a one size fits all. No matter how many trials we have, when it comes to preparing for cross, it always seems like reinventing the wheel. You know what your defense strategy is before you start voir dire. How that strategy is carried into your cross examinations, though, will often require tailoring your game plan to fit each witness individually. If every case is different, then every witness is unique in so many different ways. The witness’s age, demeanor, temperament, intelligence, occupation, and court room experience are just a few of the factors that weigh in on how a witness is best handled. It is impossible to know in advance all that is necessary to plan your cross. You prepare the best you can, but never follow a script. You must maintain the flexibility to adjust at trial to the individuals in front of you. Some suggestions regarding the more common witnesses we encounter are: Fact witness

never admit it. Any jury can understand that it is hard to put a dollar figure on one’s freedom. The notion that the government can buy witnesses with their freedom doesn’t sit well with many. It has all the makings of textbook impeachment that can actually be not just effective, but fun, at least for the first few. By the time the third, fourth and more snitch takes the stand, stick a fork in it, you’re done. Law enforcement Know the scene they are testifying about as well as they do or better. Often times the trial of a matter is years after the fact and the officers are testifying more from their reports than from memory. An up close study of the scene as part of your trial prep can do wonders for your cross of the officers. Secondly, know their policies and training manuals. Detectives and officers are like the rest of us, they get tired, bored, distracted or can just be having a bad day. The inevitable result is for them to get a little sloppy. Since the burden is on the State, juries do not look favorably on law enforcement shortcuts or otherwise departing from accepted standards and policies.

To impeach the devastating fact witness who testifies to each material element of the charge, we need to dig up every shred of documentation on them that can be found. Their statements to law enforcement are just the beginning. Search for depositions in civil cases, transcripts of administrative hearings, and if applicable, CPS statements or reports. Subpoena school and counseling records. Sometimes employers keep files that contain information that could be of value. Additionally, if you spend the time discussing it with your client, or if you have the money for an investigator, you will likely find a neighbor, business associate or relative who has a poor view of the witness’s credibility. Knowledge is power. If enough effort is put into it, you will almost always find something to work with. The only thing better than a prior inconsistent statement are two prior inconsistent statements.

Child witness

Expert witness

Finally, even though the generally accepted theory is that if an adverse witness has not hurt you, you don’t need to cross them at all, my preference has always been to find at least one thing to extract out of every witness called by the State or the Government that helps my case or fits into my trial strategy. The only exception would be the witness that could torpedo your case. If they haven’t hurt you, get them out of the courtroom as quickly as possible. Otherwise, even the lowly custodian of records can sometimes provide a tidbit of info that puts your client in a better light and with any luck, a seemingly uneventful witness called by the opposing party can be molded into a defense witness. In most trials, the prosecution calls many more witnesses than the defense. Thus, cross examination is the biggest part of our job. I am convinced that trials are won or lost on jury selection and cross examination, not on eloquent arguments. Effort and preparation in those two areas is time well spent.

Takes one to know one. We must become as much of an expert as the witness, at least in the confined area of their testimony. In the old days, that was not easy. Today, however, thanks to the internet, we have libraries of every sort at our fingertips. Don’t overlook researching the expert’s papers, articles and publications. Nothing is more effective than impeaching an expert with his own work. With enough effort and study, we can be armed to do battle with even the best of them. If you have your own expert who is going to testify, work with them on preparing your cross of the adverse expert. If you are not calling your own expert, try to at least consult with an expert if the finances are available. Informants They are always getting a sweetheart deal to testify and they will

It totally depends on the age and mental maturity of the child. A teenager is capable of being every bit as conniving and manipulative as any adult. It may be OK to bear down on them about motive or whatever else would be justified under the facts and circumstances of the case. A younger child, however, must be treated quite differently. Beating them up can only turn the jury against you to the point that it is worse than counterproductive. It is far better to find an evil adult in their life who may be manipulating them for ulterior motives and develop that connection and influence. Sometimes, if money permits, a forensic psychiatrist can help explain the emotional dynamics and unravel the mystery of why the child may actually believe something that is not true or never happened.

Cross Examination Tips Don Flanary

Follow the fundamentals! It’s easy. There is nothing new under the sun. Unless your some badass that has been doin it for years just keep it simple.

That’s so easy. If it’s not a leading question keep your mouth shut!

portance, it catches the attention of people who missed it the first time and if it draws and objection, great! Then the prosecutor just helped you draw attention to it. Then ask the question again and get another objection. This way the Jury knows, and more importantly, remembers what is important about your case. In a trial that goes a week or more you really need to have some fireworks that the Jury will remember during deliberation.

II. Who gives a S*#% what the answer is.

VI. Use your voice and presence.

You're in charge! You’re the one talking to the Jury, not the witness, not the judge and not the stupid prosecutor. If you did a great job in Jury selection like you were supposed to and they trust and love you then they will listen to you all day. (But please don't talk all day, See #7 below). Don't fight with the witness or get mired in their nonsense. Stay in control by not giving up control. Act like you are in charge and you don't care what the answer is and a tough witness will eventually give up.

That is all you have. That is your stock and trade. If you mean to make a point about something... pause (for a long time if necessary) speak soft then loud. A dynamic voice keeps the Jury's attention and tells them when an important issue is about to arise. It just like the sound track to a great movie. Use your voice to create drama, and, move around. Its your court room, dammit. Go to where you need to be to get your point across. Use space as a prop.

I. Only leading questions!

VII. Don't ask too many questions. III. What’s your theme? If you know your theme you will know what you want from the witness. Boil the case down to a theme, then boil the witness down to points of information that support your theme. Then your leading questions should make it clear what those points of information are. Make it mother goose. Make it obvious what issues you are talking about. You already made it clear in your opening about your theme and now you are drawing the Jury's attention to what you said in opening. IV. Its ok not to ask any questions at all. What the hell is this witness for? What is he gonna say to help you? If you can't get anything good out of him, tell the Jury "I ain't got no questions for this guy."

Don't bury your important issue amongst a litany of superfluous questions. Again, make it obvious what the issues are and how they work in your theme. VIII. Prepare, prepare, prepare. If you know everything about your witness then you are more likely to know every possible piece of nonsense that will come out of that lying sack o' shit's mouth. Prior to trial, put yourself in the witnesses’s shoes. Get into their skin. Figure out what motivates them. What their fears are. If you can find a way to understand the witnesses’s perspectives then you can know why they are saying the things they do. This allows you to either at least build a rapport and get more out of them or head them off before the say something that hurts you. One of the best ways to do this if you are new at it (or old) is by using psychodramatic techniques!

V. Use primacy and recency. Juries are composed of people and people have short attention spans so you have to hook them and re-hook them. This is the only time it’s cool to beat a dead horse. If you say something enough people may start to believe you but either way they won't forget it. By asking the same question again and again it reinforces its im-

If you want to learn more about psychodramatic techniques in cross examination, attend TCDLA's Round Top IV, Advanced Skills Training: Cross-Examination course being held October 22-26, 2014. Contact TCDLA for details.

Ten Personal Rules of Cross Examination Brian Powers

Aside from the basic rules of cross-examination (always lead, know your enemy, there’s no substitution for preparation, and have an objective before cross), these are some of my personal rules that act more like mantras in the months preceding trial. They help to keep my neurosis to a simmer and not a rolling boil. Rule 1 Know more about your subject than the witness (if it’s an expert, at least try). If it’s a lay witness, have their prior statements transcribed and in your head. Master what the other witnesses attested to. If it’s an expert, learn as much about the subject as you can through their own materials and their peers. Get transcripts of prior testimony whenever they’re available. This knowledge could undermine valuable State’s testimony. In some expert cases, it could show the preposterous nature of the science itself. For example: only in a Dr. Seuss book could the absence of medical evidence from a sexual assault nurse examination be considered evidence of assault in a trial. However, such evidence, or lack thereof, is elicited in nearly every sexual assault trial. Rule 2 Have a skeleton and not a script. The State has the blessing of playing offense. The nature of our job as defense attorneys is to be reactive. Cross-examination is the essence of that reflexive action. If you have a script of the exact questions you intend to ask, you limit yourself from reacting to what arises on direct examination. You rob your client the benefit of your intuition and flexibility. Consider using strategic points rather than a script to allow yourself the fluidity of altering your plan. This will allow you to attack the mistakes and inconsistencies by the witness on direct. Rule 3 Know where all the trapdoors are. Beware the urge to ask questions that elicit devastating answers to your case. This may

be as simple as not eliciting from the habitual offender the answer that he would “never do anything illegal.” Know where the trapdoors to all inadmissible 404(b) evidence are at all times. The trapdoors can be everywhere, and they could demolish a fantastic defense with a single question. Rule 4 Don’t be afraid to pass a witness without questions. If they serve no purpose with your defensive strategy, pass them. If you’re spending half an hour on every non-essential witness the jury is not going to retain your valid points. Also, asking unnecessary questions on cross opens you to attack on redirect. Rule 5 Have your predicate questions and their corresponding case law and rules at the ready. No evidence comes in without a few hurdles. Every piece of evidence has its required predicates before it’s introduced. Having a quick reference of the necessary questions and case law is invaluable. The best evidence in the world is useless to you if you don’t know how to get it on the record. Rule 6 Get permission from the jury before showing your teeth. Just because you can tear into a witness, doesn’t mean you should. It’s a matter of restraint to not attack when there’s blood in the water. However, make sure you have permission from the jury before you do so. Attacking without the green light will give the appearance of bullying the witness rather than scoring points. Sympathy from the jury is a silent killer.

simple and your points will resonate in the jury’s minds to summation. Rule 8 Don’t say “okay” after each answer. This goes to both direct and cross-examination, but I see it constantly. I believe it is a weakness related to stage fright, and it steals from your effectiveness. It serves no purpose, provides no progression in the narrative, and on cross-examination it appears to affirm the witness’s answer. Rule 9 Struggle for sincerity in every question. The first time a jury told me after the verdict that I acted cocky (this is putting it nicely), I learned my lesson. There is a mile of difference between an aggressive defense and acting aggressively. It’s possible and more effective to take the polite approach in your cross-examination. By making your questions sound more like fact-finding queries (I call it the Columbo technique) rather than pointed attacks, you invite the jury to follow you. They will appreciate you in the long run. Rule 10 Quit while you’re ahead. The answers to the meaning of life and the existence of God are not just around the bend with the next question. More likely, the next question will lead to an answer that will rob you of your recent progress. Score your points, show the jury where the holes are, and pass the witness. Save those earthshattering moments for summation when the opposition can’t steal your wind.

Rule 7 Brevity and simplicity are your best friends. Droning on with unnecessary questions only waters down your point. Large words and convoluted queries only serve to confuse and alienate your panel. Keep it short and

Cross-Examination Ben Sifuentes

Scope of article Not all cross-examination is about destroying a witness’ credibility because there are times the truth is hiding in plain sight. An opportunity to build the credibility of an adversary’s witness to prove defensive theories is a gift, and when presented, must be exploited. I discuss an actual case and the cross-examination of a single witness which illustrates the power of such opportunity. The case concerns an arbitration of a police officer. While the testimony was in the course of labor arbitration, the example should prove useful in any DWI, Intoxication Assault, Intoxication Manslaughter, or other criminal case heavily dependent upon police communications. The transcript of the arbitration is posted on the SACDLA website.1 The witness was a custodian of records for the Communications Unit for the San Antonio Police Department.

Background Although I will give an extremely brief summary, I trust the reader will read the opening statements to become familiar with the facts of the arbitration.2 On February 2, 2012, an off-duty sergeant from SAPD’s HIDTA unit accidentally keyedup his radio, on the South Channel, at approximately 5:30 A:m. The transmission was unintelligible. Thereafter, the dogwatch communications unit sought to communicate with the off-duty sergeant but was unsuccessful and could not locate him For a few hours, the A-shift patrol supervisors, communication personnel, and members of HIDTA attempted to locate the missing sergeant. Later, A-shift patrol found the missing sergeant as a pedestrian, near a business. Much later, the sergeant’s wrecked lease vehicle was found over a mile away on the highway. The DA’s office and SAPD were never able to place the sergeant

behind the wheel of the wrecked vehicle. The Chief of Police suspended my client, the HIDTA Lieutenant, for 45-days even though the lieutenant was not present when the sergeant was found; the letter of suspension contained 26 sentences which supposedly justified the discipline.

Preparation and Trial Strategy I sought all evidence to show the 26 sentences were false. I obtained 18 CDs and DVDs of audio and video [COBAN, witness interviews, private security surveillance, 911 calls, telephone calls, and radio transmissions (35 mp3 files)]. After obtaining these items, I created an event time-line.3 I also listened to all the recordings several times. I then transcribed the SARIC4 interviews of the communications clerks. I obtained the time and date stamp of my client’s telephone calls from his office phone and his mobile phone. The date and time stamps were verified with the Communications Unit’s recordings of his incoming calls to Communications as well as his telephone billing detail and the telephone billing details of the people he called. I transcribed several of the interviews, telephone calls, and radio transmissions. Often, investigators and prosecutors zero in on one item listed in the prosecution guide.5 One might be tempted to rely upon a summary or prosecution guide; however, doing so is fatal. When I made my transcription, I was able to list the times of transmission for several relevant events. This is an important practice tip: SAPD Communications has software that can locate all communications associated with a case number. Thus, if your defense depends upon radio communications, 911 calls, and other communications, request all calls and radio transmission and electronic data associated with your case number.

An even more important tip: SAPD Communications has software that enables it to export data to an Excel spreadsheet called a “Dispatch Key Up Log”: that shows the radio transmissions, and it identifies who each officer is as they key up or if it’s the dispatcher and the [start] time and the talk group that they’re talking. [See transcript at VI, 97:4-11. Note: the spreadsheet also lists the duration of the call.] I also obtained a copy of the SAPD Communications SOP and studied it so that I could question witnesses about the reasons and meaning of various communications. Every practitioner should either be well versed in using electronic media to cross examine a custodian or have an assistant who can play or display the media.6 After completing my case preparation, I knew I would be able to show that each of the 26 sentences were false. The time sequence in the electronic media corroborated my client’s version of events and showed that the City’s version was factually impossible. The time sequence in the City’s version was also incorrect. Moreover, the City’s version placed my client on the road when he was in his office. They placed him on US Highway 281 when he was on Broadway. The City’s version also erred in what my client substantively stated in recorded telephone conversations and radio transmissions. Since I knew that the electronic records would prove the truth which was hiding in plain sight, I knew the custodian of records would prove each of the 26 sentences in the Chief’s letter were false. Thus, I planned a very detailed opening statement focusing on these 26 sentences knowing that my crossexamination would prove the 26 statements were false.7

The Cross-Examination The City’s first witness was the Communications Unit custodian of records for the San Antonio Police Department. The City introduced the missing sergeant’s recording of a radio transmission sent at 5:30 A.M. The City also introduced three 911 calls. Perhaps the City did not expect that I would cross examine the custodian of records. However, I knew under Tex. Rules Evidence 106, 107, and 1003 that I would be able to introduce copies all of my client’s recorded telephone calls to the Communications Unit and his radio transmissions. I also knew that I would be able to introduce other supervisors’ recorded telephone calls proving my defensive theories. I was also well versed in the Communications Unit SOP and was prepared to prove the custodian was an expert if need be under Rule 702, and have him render opinions under Rules 703, 704. A witness eager to show his command of the facts and his competence in his field of expertise will always cooperate. Such crossexamination is friendly. When done properly, the result is devastating.8 Consequently, my goal was to have the custodian introduce all the favorable recordings, explain the substance, meaning, and sequence of the communications, thereby proving all 26 sentences in the suspension letter were false. The custodian stated the IA investigator instructed him to gather all the radio transmissions and phone calls related to the case at hand. He also testified that he catalogued the files in an Excel spreadsheet that indicated which officer made which transmission by timestamp.9 He readily authenticated each audio file I played. I then began playing phone call after phone call of police supervisors calling communications asking the communications clerk questions about the radio transmission the City introduced. I asked the custodian non-leading questions

asking what he did or did not hear on the tapes.10 I asked him about communications personnel replaying the tape because they could not understand what was being said. I asked what certain phrases meant, given his experience as a 911 call taker, dispatch clerk, supervisor, and custodian of records [See Tex. Rule of Evid. 702, 703, 704].

2. Vol. 1:27-72.

The custodian of records explained what an all-route or E-tone for the missing officer meant and when it was sent out. This was a crucial event because no one informed Communications that the reason for the E-tone no longer existed after the sergeant was found.

5. The SAPD Communication Unit custodian of records had produced several audio CD’s for the Internal Affairs investigator. I made sure by using both discovery and the Public Information Act that I had everything. Some spreadsheets and other electronic “documents” were missing from the physical IA file. The same types of items are always missing from e-discovery packets. So make sure to look for and find them.

The custodian was able to establish that when Central Patrol found the missing sergeant, no one told the Communications Unit that he had been found and that my client was in fact in the dark. Indeed, the custodian authenticated a telephone call of my client calling Communications seeking an update of the sergeant’s location almost an hour after he was found; yet no one in Communications knew the sergeant had been found. Thus, the custodian established that in real time, the Department as an institution failed to connect the dots and failed to disseminate information to my client.

Effect of the Cross-Examination The reader who reviews the transcript will see how the cross-examination of the custodian of records proved my opening statement. Moreover, it set the stage for crossexamination of the witnesses that followed. Had the Chief of Police decided to continue the hearing, he would have had to admit that his own records and his custodian of records refuted each of his 26 assertions in his letter of suspension.

3. There are several software programs that permit sorting events by time-line, with the ability to notate the source of information; i.e., Timeline Maker, and the like. 4. SAPD’s new acronym for their intelligence unit.

6. I copied the contents to a specific folder on an external hard drive that I connected to my laptop. I also had a large portable Bluetooth speaker to play each of the files. I highly recommend this set up. I saved each CD in a folder named the same as the name on the CD so the custodian could see the file name in the folders as if it were a CD. Thus, we could play each file with a mouse click. Thus, I was able to avoid fumbling with CDs. 7. V-I., 39:72 8. The hearing was scheduled for three days; based upon the first day’s testimony, the city chose to rescind the suspension based upon the posted transcript. 9. The “Dispatch Key Up Log.” 10. I had no doubt the words were missing. Prior to the hearing, I had several people listen to the recordings with different high quality headphones and over stereo speakers.

1. In the matter of the Arbitration of Steve Velasquez v. City of San Antonio, 45-days suspension, FC- 2012-019. I thank Bud Ritenour for posting the transcript on SACDLA’s website and my client for allowing me to discuss his case.

Quick Tips for Cross-examination Stephanie Stevens

I Make a list of the points you want to elicit from the witness.

IV The ultimate point that you did not ask during should cross-examination be made in closing argument using all the answers you elicited on cross to support it.

II Place each point on the top of a separate piece of paper. Then write out your questions underneath it. Make sure that you stop short of the ultimate question. If you are not sure what one question too many is, then think of the following story of Abraham Lincoln: Lincoln: You didn’t see my client bite off the victim’s nose. Witness: No, I didn’t. Lincoln: Then how do you know he did it?

V When you impeach a witness do it with some drama to make sure the jury understands that the witness is lying, confused, or mistaken. For example, if your witness testifies to something not in her written statement, approach and hand her a red pen and ask to circle on that statement where the non-existent addendum can be found. It should probably go without saying, but make sure that the information is truly not present anywhere in the report before you go this route.

Witness: Because I saw him spit it out.

VI III Next to each question place a citation demonstrating where you can find an impeaching statement. Too often we ask a question and the witness gives an unexpected answer. You know that the witness said something different at one time, but cannot seem to place your hands on where in the police report, or witness statement, or transcript, the contradictory statement was made. As a result, the witness gets away with a lie. But not if next to the original question, you write the document, page, and line number of the source of the statement. This helps you impeach the witness faster and smoother.

Even though you have written out your questions, make sure that you do not look down at your paper and read the question out loud. It’s better to read the question to yourself first, and maintain eye contact while then asking it out loud to the witness. Control of the witness is key to a good cross and looking a person in the eye generally provides better control.

VII Watch good lawyers whenever you can and steal ideas and techniques from them!

Cross Examination Hints Warren Wolf

Decide first whether to cross or not. Is there

anything to advance your theme of the case?

II.

If you decide to cross exam:

Keep your goal in sight;

Get a fact in evidence;

Discredit the witness.

III.

Be prepared; thoroughly research the witness.

IV.

Control, control, control.

Only leading questions. Basically, you

are testifying through the witness.

VI.

Know when to stop. When you have

accomplished your goal, quit!

VII. Donâ&#x20AC;&#x2122;t ask the one question too many.

You will know when you asked it as

soon as it comes out of your mouth.

Some Thoughts on Cross Examination Michael McCrum

I have been asked to provide input on what I believe is important in the art of Cross Examination. I do believe that most trials are won through effective cross examination, followed by effective corroboration of the themes developed in Cross through presentation of the defense’s affirmative evidence, because in most cases Cross Examination brings out the entire truth about what happened. Basically, I believe that effective Cross, followed by physical and testimonial evidence supporting and advancing my theme (through the government’s evidence and/or the defense’ affirmative evidence), is the primary way to win cases. I know there are those who disagree, but I do believe Cross Examination is the foundation for getting the truth out about the entire situation. That being said, here are the things I think about and do in planning for Cross Examination of the government’s witnesses.

Second, I think about what I have not been given that will add understanding of the story. I first request the government to give me more documents than they usually have through discovery, but which I know they have in their possession or control.

First and foremost, it is essential that I know everything about all aspects of the case situation. I cannot underscore this enough. Not just what the government has in its discovery; not just what the government prosecutor or media thinks is involved in the case; and not just what my client thinks is relevant to the case. I mean, I want to know everything. To that end, I think about what documents I need to obtain and read, what things I need to see, and who I need to talk to. In sum, I obsess about knowing everything there is to know, even if it requires me reading through hundreds, if not thousands, of documents. I make sure I get copies of everything the government has and everything my client has. And I read everything several times and understand it as best as I can. I really want to be the most knowledgeable person in the courtroom, and certainly more knowledgeable than the government witnesses I will Cross.

In another case that focused on about 10 narcotics cases my client/deputy worked, I asked the government to provide me with copies of all of the cases filed by my client when he was a deputy; all of the cases filed by any officer using the snitch-turned-State’s witness; and all of the payments made to this snitch by any officer (not just my client-defendant). As you can imagine, all of this data and documents were not in the State’s discovery; nevertheless, these ultimately proved extremely effective in painting an accurate picture of my client’s innocence and the snitch/witness’ lies and exaggerations.

For example, in one health care fraud case, I asked the government to provide me with a CD of all of the thousands of billings my doctor had submitted to Medicare/Medicaid during the past 10 years (not just the hundreds they say are fraudulent). This data wasn’t in the discovery, but I wanted to see what patterns had developed as to the identity of the doctor’s personnel filing the billings, and the types of billings they were filing. The data painted a critically important feature of the defense, and brought out the truth.

In another case, I asked the government to give me access to investigative reports of their cooperating former employee, who herself had been investigated on another case. In yet

another case, I asked the government to provide the intercepted jail letters of their witnesses, which ultimately demonstrated that the witness was frustrated that the government repeatedly would not accept her version as true, and kept pressuring her to tell the version they thought was true. The government will usually fight me on the production of all of this type of “non-related” information, but I typically can prove relevance and materiality via Brady. In every single case, the information was critically important in winning the battle of Cross Examination and trial, because it brought out the truth of the entire story. As we know, many prosecutors don’t bring out the entire story, or don’t know it. I believe Cross Examination is key to doing just that. Third, as to those documents that the government does not have, I consider and use subpoenas. Assuming I can meet the appropriate standard to use a subpoena, I have found that this is essential in being prepared to effectively Cross Examine most witnesses (even in non white collar crime cases). Again, the information I have been able to obtain through subpoena has been critical in painting an accurate picture of the true story, and extremely useful in Cross Examination. Once armed with information and documents, I prepare how I will be able to use it in developing my theme through Cross Examination. So, as a fourth “tip”, I find it’s much more important to focus on the theme I want to develop (whether it be my theme to demonstrate innocence, to show the frailty of the government’s theory, etc.), rather than focusing on how to “destroy” the credibility or reliability of the witness. To that end, I focus intently on how I think each of the government’s witnesses have

knowledge (or lack of knowledge) that will be able to advance my theme. I write down each topic I should go into with a witness to advance my theme, then organize it in a way that would most advance the theme in an understandable way. I use the documents and information I have obtained to know what to question the witnesses about. Very often, the witnesses will sink themselves, and I let them do so before I begin to question them about information I have learned through review of documents. I don’t write out questions; I think this is a huge mistake. But I do, however, get very organized in themes that I want to develop with a particular witness, and methodically go through those themes briefly, concisely, forcefully, yet humbly. It helps me focus on advancing my theme. A brief note on humility: I have found that “attacking” government witnesses with disdain in my voice, does not help advance the ball down the field. If I were to do so, the issue becomes whether I am more forceful or aggressive than the witness, rather than advancing my theme. I don’t think juries find it particularly persuasive. So, I resist what lawyers and movie watchers historically have come to believe Cross Examination should be: i.e., “going at the witness to rip him apart with a vengeance.” I have found that I can be much more effective by being very forceful, yet polite, humble and professional at the same time. As a result, you will almost never see me “hammering” a witness with disdain evident in my voice. Using the data and information I’ve obtained, I develop spreadsheets, charts and other items of physical evidence, capsulizing complex data into persuasive pages that tell a story. Simply, I believe there are patterns in almost everything we see in almost every case and life situation. The challenge for me

is to root out the patterns, obtain the necessary documents or video clips or reports or whatever to compile and describe that pattern, and tell that story. I believe physical compilations and other physical exhibits are extremely helpful in convincing the jury of my theme and seeing the entire picture. In fact; I believe it’s a must. I don’t delude myself into thinking that the artfulness of my style of questioning is sufficient to convince a jury of my theme. I believe they get inspired and extremely interested in seeing that my physical evidence, particularly spreadsheets and other compilations, bring out the entire picture about what happened. So, I set the witness up with whatever story he will want to tell (which I know is inconsistent with the data and history of documents), and I then cross him on the information I’ve learned. Sometimes, I may not bring out the truth of what I’ve learned, and wait until I put on my investigator, forensic analyst, defendant or other defense witness. I cannot underscore enough the importance of using this information in Cross Examination, where it is later followed up via introduction through my witnesses. Almost always, I do not think it is advantageous to pick at inconsistencies in witness reports. Obviously, an inconsistency on an extremely important fact would be too important to not cover. But that doesn’t happen too often. More often is the situation where we see relatively unimportant inconsistencies. I just don’t think it helps me to go over and over with a witness each inconsistency in reports with the desire to show the witness is telling lies, or cannot remember, or whatever. I do not believe it is effective with the jury at all. I feel the same way about the language of a plea agreement (i.e., the fact that he’s promised a reduction for substantial assistance to the government), or the fact that the snitch is getting a break

on his case. Most often, people expect the government’s to use snitches as witnesses. I just don’t feel it’s that effective a Cross. Rather, I look to the witness statements to identify concepts that either advance my theme, or detract from it. As to those areas that detract from my theme, I think about how to approach them logically, using all of the information I’ve come to know to offer a different interpretation of what happened. For example, cross examination of an officer who saw a couple of “indicators” of intoxication will focus on the many that he did not see. But instead of just pointing out the many indicators he did not see, by delving into his desire to see as many as possible, that they are all important. And if they are important when seen, they would be important when not seen. Or, crossing the flipped co-conspirator about the illogic of his story and inconsistency with physical evidence. On non-responsive or evasive witnesses, I will never ask a judge to instruct the witness to be responsive. I think it poses three likely problems: it gives the distinct impression to the jury that I cannot control the witness; it gives the witness confidence that I cannot control him/her; and it leaves open the possibility for the judge to say, “he’s being responsive counsel, you just don’t like the answer.” Rather, I remain humble, telling the witness I must have asked a confusing question (the jury hopefully knowing I didn’t), and re-word the question; or tell the witness that I’ll “break down” the question into parts, because perhaps I’m not being clear. This relates to my general approach to cross, which is remain humble, yet strong (as much as I can swing it), while offering the impression that I want to make several very important points and leave this witness alone. I try to appear very affirmative and focused on my approach, yet polite and humble with the witness.

Thoughts About Cross-Examination Christine & Mario Del Prado

I. Prepare

Rule 3

Prepare for Cross Examination by knowing the Rules of Evidence. But, more importantly, understand your client’s 6th Amendment Right to Confront the witnesses against him and his "Right of Compulsory Process," which means much more than just subpoena power. See Mark Mahoney’s article (you can find it on Google) The Right to Present a Defense.

Questions go from general to specific in logical order – leading to a goal.

Most DAs, even the really smart ones, are simply not as familiar with these concepts as you will be. They will, generally, just rely on the Rules of Evidence. But, remember, the Rules of Evidence can be trumped by your client’s U.S. and Texas Constitutional rights, among others. See Texas Rules of Evidence 101(c):

In Dynamic Cross, James McComas advocates using non-Leading questions in four situations:

Hierarchical Governance in Criminal Proceedings Hierarchical governance shall be in the following order: the Constitution of the United States, those federal statutes that control states under the supremacy clause, the Constitution of Texas, the Code of Criminal Procedure and the Penal Code, civil statutes, these rules, and the Common Law. Where possible, inconsistency is to be removed by reasonable construction.

II. Must Reads Must reads: Cross Examination: Science and Techniques (Pozner & Dodd); On Cross Exam (Terance MacCarthy) and Dynamic Cross (James McComas). Pozner & Dodd suggest that there are only 3 Rules of Cross Examination: Rule 1 Leading Questions Only (short, declarative Qs). Rule 2 Only one new fact per Question.

However, know that sometimes you have to break the rules. To paraphrase Frances Wellman, the author of The Art of Cross Examination, you have to know the Rules of Your Art and you have to know when to break them.

1. Areas that are highly leveraged, like where testimony we want already contained in W prior statement. Leverage Points not only include what a W has previously said but also biases, motives and interests in case; conflicting reports of other Ws; physical settings and evidence. [CLIPS: Credibility, Lack of knowledge, Implausible statements, Prior Inconsistent statements, Support your case.] 2. Such Qs can be exploratory – use them when we need to know what W claims about something but has not previously addressed. Using non-leading Qs, we lose nothing if answer is not helpful because our questions did not assert a fact that the W rejected. 3. Such Qs can be helpful in developing areas where we do not want the W to know what answers we are hoping for; they don’t 'cue' W. 4. Create opportunities for something significant to happen; i.e. by asking a well set up why question.

III. Prepare Your Jury for Tough/Aggressive Cross Discuss with the jury panel how you intend to cross-examine Witnesses and get their permission to do so during trial. Tell them it’s an adversarial system and that it’s your job to present a tough, in-depth cross, when it’s called for. You don’t want them to be surprised when you get tough on a Witness and

feel sympathy for the Witness. You want them to expect it and not be offended by it and, more importantly, not hold it against you or your client. Bearing the presumption of innocence in mind, would you expect or want an attorney representing a loved one to ask tough, penetrating questions if their liberty were at stake? Would you want, or expect, anything less? Do I have your permission to do so here?

III. Before You Ask a Question of a Witness, Ask Yourself Some Questions 1. WHO is this Witness? 2. WHAT is this Witness’ motivation? 3. HOW much can this Witness help/hurt me? 4. WHAT must I get from this Witness? 5. WHAT must the jury not see, not hear or not accept from this Witness. 1. Who is this witness? and 2. What is their motivation? As an example, a Homicide Detective may well give you the answer that you want on a particular point or issue if his alternative would be to admit that he did a lousy investigation, or did or did not do something. Remember, everyone will sell themselves out last. 3. How much can this Witness help/hurt me? You don’t need to destroy every Witness. You may not need to cross the Witness at all, especially if the Witness’s testimony is with regard to an issue that is insignificant to you, or you want to adopt their testimony for your defense. But, there will be some Witnesses that you must destroy, if possible. Sometimes, you have to come out swinging, especially if the Witness has hurt you. You must communicate to the jury that this Witness is totally unbelievable and you must broadcast this to the jury in every way possible.

4. What must I get from this Witness? Sometimes you have to use a State’s Witness to get your theory of the case out, especially when you don’t have your own Witnesses who can do it. This is when you tell your story by leading questions even when you know the Witness will not give you the desired answer. This method comes in handy when the testifying Witness sees you as the enemy and will never agree with you, even about the most minor things, often to their detriment. Q: “You didn’t like your stepfather, did you?” A: “I liked him okay.” Q: “In fact, you hated your stepfather, didn’t you?” A: “I didn’t hate him.” Q: “You hated him because you blamed him for the breakup of your parent’s marriage.” A: “No” Q: “You hated him because you blamed him for the breakup of your parents’s marriage and you wanted him out of the house, didn’t you?” You get the idea. In a few questions, you have laid out your theory of the case. It doesn’t really matter what the Witness says, necessarily, since all you want to do is say out loud, so that the jury hears it, your theory of the case. 5. What must the jury not see, not hear or not accept from this Witness? Sometimes you have a dangerous Witness that you must examine. The overriding idea is to control the dangerous Witness. One way to control the witness is to restrict your cross to one, single subject at a time. You use headlines to broadcast what you want to question the Witness about: “Officer, I now want to question you about my client’s mental faculties, when you first approached him, do you understand?”This method of control-

ling the witness also sets the Witness up for your objection that they are being non-responsive if they try and pivot away from the topic. And, jurors will notice when a Witness is trying to avoid answering a fair question.

V. Dealing With Difficult Witnesses Again, the overriding idea is control. You may need to repeat the question: “Did you understand my question?” “What was my question?” Use subtle physical cues that we all recognize to stop a rambling, nonresponsive answer: (ex: Holding up hand) “Excuse me, but that was not my question.” Only as a last resort do you want to object that the Witness is being nonresponsive – often the Court will instruct the Witness before you even ask. But, use these techniques only if you have first utilized the only 3 Rules (See 2., above).

VI. Dealing with Objections During Cross Prosecutors for the State oftentimes don’t make legal objections, but rather drone on in front of the jury, in a speaking objection, about how unfair everything is, for the State. Be prepared with a few good cases on Right of Confrontation and Right to Present a Defense. As mentioned above, read Mark Mahoney’s article on 6th Amendment Right to Present a Defense. He was a speaker at this year’s Rusty Duncan Seminar and his ideas give you great insight and case law for Right to Present a Defense, which often only occurs via our cross examination.

VII. Don't Take the Witness Chronologically Back Through His Direct Testimony If you haven’t planned on what a Witness brings to the case, and how you are going to deal with their testimony, you may end up just rehashing and reinforcing damaging, direct testimony. Don’t do this. And, resist the urge to go over what happened in chronological order. When you ask questions, chronologically, the Witness anticipates what your questions are going to be and you give up any element of surprise, let alone your power to control the direction of

your cross-examination. If you get a great opportunity to jump a witness because of something they said or did on direct – jump on that and start with a bang. Remember Primacy and Recency. You always want to start strong, if possible, and end strong. If you are surprised by an answer and need a little time, you may want to say something like, “We’ll get to that.”

VIII. Transitions and Looping Use Transitions for getting to a Safe Zone. If you need to get out of an area quickly, or just ratchet down for a bit, you can transition to another area because you are in control: “OK, now I want to ask you about the layout of the house, do you understand?” Looping is a method where you seek out a good fact, from the Witness, then you get affirmation from the Witness, and then you use it in the next question. “You lied?” “You lie when it’s to your advantage to lie?” “When you lied...” Double Loops are similar, except you get admissions to two good facts and then loop them into your following questions: “Officer, John was steady on his feet, wasn’t he?” “John’s speech was normal, wasn’t it?” “As you began your DWI investigation of this steady, normal speaking individual?”

IX. Scout Your Opponent If you have a trial coming up, watch for trials in that court and watch the DAs select a jury. Know their proclivities. We are all creatures of habit. There are some DAs who will object incessantly because they know it often works to throw you off of your game. By the same token, many DAs just tell the Court, “I’ll move along”, when you object to their cross. Watch (or read) as many cross exams as possible.

X. Be Confident, Concise, Accurate and Fair

Tips for Cross Examination Alex Scharff

It goes without saying that an attorney should be fully prepared for the trial. The theory of the case, whether it is based on self-defense, alibi, entrapment, or simply, reasonable doubt, should be developed in jury selection, opening statement, cross-examination, and closing arguments. Here are my personal tips for cross-examination: I

Do not simply repeat the direct examination by the prosecutor, e.g. "So, you're saying my client did what?" By having the answers repeated, the more likely the jury to remember them.

Try to get the information from the witness that helps your client's case first. You get more flies from honey, right? Then you can try to make the witness look biased or unreliable.

Always know the points you are going to question the witness about before you start. Focus your questioning as to the relevant issues.

Do not argue with the witness or become a bully.

III

Know your enemy – be careful going overboard with a sympathetic witness or you will risk alienating the jury.

Be professional at all times. Always project an air of fairness. IV Try to get the witness to be "in the moment," with you – fully engaged. In an attempted capital murder trial, a narcotics officer admitted he shot at the defendant's head, two times, while the defendant was laying on the floor face down. In that particular case, I asked the officer to describe step-by-step how the entire scenario occurred – it was very tense, but the jury could see his reactions to every question. If the witness is in "in the moment," the jury will be able to tell when he is lying.

VII

VIII Only impeach a witness with his prior conviction if he hurts your client's case. IX Make your points and then get out. X Formulate your questions to be answered with a "Yes" or "No." Do not hesitate to cut off the witness if he fails to answer your question, or goes beyond the scope of your question.

Watch as many trials as you can. Read as many appellate records as you can. In either situation, you will be able to learn what succeeds and what fails.

Cross Examination Kristen L. Mulliner

Effective execution of a cross-examination begins pre-trial. Filing and securing rulings on appropriate motions can and will greatly reduce surprise and increase efficiency when questioning lay witnesses, law enforcement personnel and expert witnesses alike. First, absolutely identify who potential witnesses will be, by filing a request for the State to produce a witness list. Knowing who you will be crossing allows you to pursue invaluable avenues of inquiry regarding each and every personâ&#x20AC;&#x2122;s history and potential motive. The type of preparation and subject of pretrial motions are entirely dependent on the case fact scenario. Some generic motions that will allow you to determine what other avenues you may wish to pursue in order to prepare for an effective cross of your witness include a motion requesting the arrest and conviction reports of any potential witnesses, a motion for production of witness statements used to refresh the recollection of a witness and a motion to reveal any agreement that the State may have entered into with their witnesses. Motions tailored

to gain as much information regarding any potential expert is also critical if applicable. The information gathered from discovery provided as a result of motions filed and ruled upon should give you some insight on what direction your cross may take. Beyond pre-trial motions, it is beneficial to do an independent inquiry into the history of law enforcement witnessesâ&#x20AC;&#x2122; employment history and to make an attempt to obtain independent statements from potential lay witnesses. A sworn statement given to an investigator employed by you can be an invaluable tool for impeachment or corroboration that the State is not privy to. Once you know who you will be questioning and have a better idea of what they will say, you can prepare and organize information on each witness so that your cross examination is as well thought out as possible under the circumstances. Ultimately, the more you know about a witness before they take the stand, the better prepared you will be to cross examine them.

Ten Tips for Cross Examination Carl Robin Teague

I Each question should be a short statement with a question mark on the end of it: You were someplace else at the time of the incident? (I stole this tip from Terence MacCarthy. He has been the Executive Director of the Federal Defender Program in the United States District Court for the Northern District of Illinois for over forty years. You, too, should steal this tip.)

II Be careful about double negatives: You weren't at the scene of the incident when it happened? Witness: No. Lawyer: Is that no you weren't? Or no you were? The double negative can be avoided: Were you at the scene of the incident when it happened? But asking a non leading question makes some lawyers nervous. If you prefer, see example 1: You were someplace else at the time of the incident?

III Listen to yourself: Alright, I want to ask you this question: Who do you work for? SAPD. Okay, how long have you worked for SAPD? 15 years. Alright, what is your assignment? DWI. Okay, thanks. Now, let me ask you this: You were assigned to DWI at the time of the incident? Correct? Yes. And this case involves a murder, not a DWI? Right? Eliminate the tags at the beginning and end of questions which annoy jurors after you've added them to enough questions.

IV Listen to, and watch the witness: You were involved in the DWI Task Force only two

days before the incident? Witness nods head. And you hadn't even finished your training? Witness shakes head. You still had two weeks left to go? Witness: Uh huh. And there was still a lot for you to learn before the incident? Witness: Huh uh. The lawyer finally begins to listen: Was that a yes or a no?

V The unresponsive witness and the rookie lawyer: You don' t have any personal knowledge about the incident? Witness: You've got a lot to learn, rookie. Rookie lawyer: Your honor, would you please instruct the witness to answer the question? Judge: Let's move along.

VI The unresponsive question and the seasoned lawyer: Do you have any personal, first hand knowledge about the incident? Witness: Your client murdered the deceased. Seasoned lawyer: Objection. Unresponsive. Request that the jury be instructed to disregard. Judge: Sustained. The jury will disregard that unresponsive answer. Seasoned lawyer: Did you hear my question? Witness: No. Lawyer: I'll ask it again: Do you have any personal, first hand knowledge about the incident? Witness: I still say your client murdered the deceased. Lawyer: Objection and request, etc., followed by ruling. Did you understand my question? Witness: Yes. Lawyer: I know you want to answer the question about who done it, but I want you to answer my question. What was my question? Witness: I don't know. P.S. In theory, I love unresponsive witnesses, the "artful dodgers." (With respect to the Charles Dickens novel, Oliver Twist.) In theory, I like to let them hang themselves. Jurors, and judges, don't like witnesses who

don't answer good questions. Eventually, the judge will get impatient and instruct the witness, without your having to request help from the judge: Judge: Mr. X, just answer the question.

VII Managing the rambling witness: Mr. X, where were you at the time of the incident? Witness: Well, you see, I was at the station. I was getting ready to clock in. It was about time for me to go on patrol. So my partner and I got into our patrol car and…. Lawyer. Excuse me, Mr. X. Or: Thank you, Mr. X! You have answered my question. Now for my next question: You weren't at the scene of the incident when it happened, were you? Witness: No.

VIII Avoid interruptions by the witness, who likes to distract you: Lawyer: You weren't at the scene…. Witness, interrupting: Alright, alright. Where are you going with this? Lawyer: (Don't argue with the witness.) If you will let me finish. You weren't at the scene because you were drinking coffee with your partner, as indicated by the time sheets for the investigative report?

IX Avoid interrupting the witness, unless you suspect the witness is going to be unresponsive: Lawyer: You were drinking coffee at the time of the incident? Witness: I'll admit I was drinking coffee, but…. Lawyer, interrupting, rudely: That's all, Mr. X. Witness: I haven't finished my answer. I was drinking coffee, but we were listening to dispatch radios which reported the murder. Lawyer: I apologize for interrupting you.

X I once watched and listened to Ronnie Krist cross examine a defense witness in a product liability suit which we tried in Brownsville years ago. He is naturally talented, and is one of the most skilled I have ever seen at cross examination. He did not use a single note during a one hour cross. And he made the witness look like a fool. Krist: How much are they paying you for this testimony? Answer: $$$ Krist: How much? And on and on. I am not as naturally talented, or as skilled, in part because I have not tried as many cases as lots of other trial lawyers have, and I have never been involved for long in pattern or repetitive litigation, almost always trying "one off" cases. Essentially, I have had a low volume trial practice. So, as a result, I plan for cross examination by preparing questions ahead of time, after thinking about the subjects I want to cover with a witness on cross. (Tip 11: And I use headings in direct and cross examination.) In preparing questions in advance, during cross I don't try to think of my next question while I am asking the first question, and while the witness is answering. I can and do actually listen to the answer watch as the witness answers. And I can follow up, if I want to. I have notes to rely upon when I have finished with the follow up to an answer.

XI Oops. Here's one more: Read and watch Terence MacCarthy: http://www.youtube.com/ watch?v=QcOkG9-TpEo I think there are six videos of his advice on YouTubeTM about cross examination. He is a master.)

Cross Examination Tips John “Bud” Ritenour

Cross examination is hard work for me. Nothing can make an effective cross easy, but there are two things that make it less stressful for me – preparation and flexibility. Preparation is a never-ending three-act grind. The first act is learning the basics. We were all introduced to Irving Younger’s basic guidelines of The Ten Commandments of Cross-Examination in law school. I follow a slightly different set of guidelines – leading questions only; only one new fact per question; use a goal-oriented approach. Two great sources for this approach are Pozner and Dodd’s Cross-Examination: Science and Techniques (I spend hours with this book), or watching six hours of Terry MacCarthy’s lecture on Cross Examination on YouTube (I attended a seminar taught by him at The Center for American and International Law in Plano). Each use slightly different terminology, but teach the same approach. Only three simple rules, but it takes work to understand and properly use them. The second act is to prepare yourself to execute the cross. Do not try to copy someone else’s style of delivery, or even another’s organization. Cross examination is a very personal endeavor. If you get the opportunity to attend a seminar in which you are video recorded, and critiqued, doing cross or another aspect of an advocacy effort, take it. It can be uncomfortable, but you will learn much about preparing yourself for cross, or other oral advocacy. The second best way is to ask a spouse, significant other, or trusted friend who will be brutally honest. I have done both the video critique, and worked that exercise with my wife. Through that effort, I learned that I have a tendency to be “aggressively assertive” when I press too hard (my wife calls it being a bull-headed horse’s ass, but I like my term better). Once you understand who you are, you can prepare yourself to execute the basics within the framework of your case. I have to consciously remind myself not to press too hard on a point, and to avoid even the appearance of intimidating a witness. In my case, that includes how I approach a witness on the stand. At 6'4" and 230 pounds, I have to be careful not to hover over a dainty or scared witness on the stand. I also keep reminding myself not to

get closer than 10 feet of the jury box when I do opening or summation. Each of us has personal quirks that we need to take into account in preparing for cross. You need to know and understand those. The final and third act of preparation is understanding how the specific witness fits into your theory of the case. You simply must know what you can expect to get from each witness that will help your case. That must start with a firm grasp of where you are going with your defense. I always start with a draft jury charge. Identifying the defensive theory, and the specific defense if there is one, lets you know what you need, and from whom, to both get the jury charge you want, and to preserve the error if you don’t. Once you know how the witness fits into what you are doing, you apply the basics to get there, but within your own personal limitations. Again, don’t try to imitate someone else. Pozner and Dodd suggest that the proper technique for getting what you want is to write out your goals for each witness, and then write an organized question outline for reaching each goal. In combining my personal preparation with my witness preparation, I learned that I can only do part of that – define the goals for each witness. Another of my personal quirks is that writing out “chapters,” in Pozner and Dodd terminology, or goal sheets with structured examination points in my terminology – just doesn’t work for me. I tried it for years, until I accepted that my mind simply doesn’t work that way. I drive second chairs – and first chairs when I am second – crazy, because I just can’t write all that out. I will define goals for each witness. Beyond that, I only confuse myself if I try to write out an examination. I do a basic outline of points, and the rest I work out in my head. This sounds crazy, and I’ve been told it is, but it is how I have to apply the basics to the witness within my personal limitations. My final step is flexibility. In my mind, flexibility is the result of a careful and thoughtful preparation, and concentrated listening. If the witness gives you what you want when the state does its direct, don’t mess it up. If you don’t need anything else, pass the witness. If you do need to do a cross, for

heaven’s sake listen to the answers you get – and keep an eye on the jury. Two examples – sorry about the war stories, but they illustrate the point. Many years ago I was cross examining a police officer who was one of several who allegedly chased my client half way across San Antonio, and pulled him out of his car when he finally stopped in his driveway, to arrest him for DWI. The chase allegedly included a helicopter, and was in the dark. I had many things I wanted to ask to challenge the story of the officer, but early on I asked if the helicopter had illuminated the scene with its search light. The response was a very sarcastic “I didn’t look up, counselor.” (Do they have a special class to learn how to say “counselor” that way?) I immediately passed the witness. (Who has to look up to see if a helicopter is directly overhead?) My client was found not guilty, and the jurors said that answer blew any credibility that witness had. More recently, I had a complainant who my client was accused of shooting in the back without provocation. I got nearly everything I needed out of the direct, but wanted to mount a credibility challenge on some points. Early on I got a response that was exactly correct, but I did not expect the witness to admit. I could have lived with whatever response I got from my question, and had to control my excitement when I got what I did. My approach immediately changed from a direct credibility attack, to essentially making him a hero, and proud of it. Using the Sun Tzu (another book I highly recommend) indirect attack approach, I challenged his credibility in one important area by making him a hero in another. I understood my limitations, consciously did not become “aggressively assertive” in my initial approach, and was able to pivot my examination. I knew what I needed from that witness and how it fit into my theory of the case. I used the basics to structure my examination. With all the preparation in hand, when I got an admission I knew was possible, but not expected, I had the flexibility to change my approach and continue to advance my theory of the case. Cross examination is hard work for me. If I have any success, it comes only through preparation and flexibility. Maybe that will work for you as well.

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