Cross Examination Judges’ Briefing Guide. So, you want to be a Cross Examination Debate Judge?
CROSS-EXAMINATION
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Transcript of CROSS-EXAMINATION
CROSS-EXAMINATION
MAKING PROSECUTION WITNESSES TELL OUR STORY OF
INNOCENCE
Cathleen Bennett
October, 2004
Cross-Examination: Science and Techniques
Larry S. Pozner
Roger J. Dodd
The Michie Co.
Why We Cross Examine
To Prove our Theory of the Case Get Evidence/Facts To Argue In Closing To Tell Defense Story Through Prosecutor’s
Witnesses Believability factor exponentially increased
WHEN WE CROSS EXAMINE…
We Prove That We Are Trustworthy Our word matters and we keep it We who know facts cold We send the PREPARATIONPREPARATION subliminal
message Focused=respect jurors time and intelligence Not hired gun with a bag of tricks
DANGERS OF OFF -THEORY CROSS
CONFUSING RISK OF FILLING IN
GAPS IN PROS CASE BAD ANSWER DISORGANIZED REPETITIVE NO CONTROL
The HALLWAY & Control
THE KEYS TO CONTROL & SUCCESS
PREPARATION GOAL ORIENTED (Theory
Centered/Driven Content) "QUESTION" FORM ORGANIZATION/SEQUENCE OF
CONTENT
COMMON CROSS TOPICS
GET GOOD FACTS SHOW INCONSISTENCY – another witness;
physical evidence; common sense BIAS – for prosecution or against the client MOTIVE TO LIE IMPEACH W/CONVICTION (CREDIBILITY) LACK OF CAPACITY
COMMON CROSS TOPICS
To show important omission Things not done/tested/investigated Put a fact in context Neutralize fact Cast in different light
THEORY CENTERED CROSS
Primary Purpose: to further the defense theory of the case
Theory = short statement that summarizes the factual, legal and emotional reasons for why the jury should acquit the defendant
The best theory will account for and/or adopt all facts beyond change
THEORY CENTERED CROSS
NOT ALL WITNESSES NEED BE CROSS-EXAMINED
CROSS-EXAMINATION NEED NOT BE CROSS (HOSTILE)
TYPES OF CROSS-EXAMINATION
CONSTRUCTIVE DESTRUCTIVE MIXED CONSTRUCTIVE FIRST REMEMBER-DON'T PISS OFF THE
ALLEGATORS BEFORE YOU TRY TO CROSS THE SWAMP
HOW DO YOU DECIDE?
HOW DOES WITNESS EFFECT MY THEORY?
CAN WITNESS HELP? DOES WITNESS HURT? CAST DIFF. LIGHT? THEORY,
THEORY,THEORY
DEVELOP A THEORY OF THE WITNESS
Who is this person? Walk in their shoes, see & hear thru their eyes, ears
and heart What is their stake in the case? What is W’s relationship to the client, complainant,
police, pros, other witnesses Does w have a record? Admissible?-and
Does it MATTER? How do we want the jury to feel about this person?
SOURCES OF CROSS INFO
Police Reports Witness Statements Crime Scene Physical Evidence Turret Tape Police Rules & Regs
Transcripts: Bail Hrg Dangerousness
Hearing Vtp Hearing Mot Supp
Defense Investigation
HOW TO PREPARE
Outline Closing Id/index FACTS
NECESSARY TO ARGUE
Id Every Source of that Fact
Charts Can Help
Create Pros Slam Dunk Case & Compare It To Your Case
Create Slam Dunk Police Investigation & Compare It To Your Case
Identify things that should be there if client was guilty but are not in the case
Did they even look for that evidence?
ORGANIZE CROSS INTO CHAPTERS/POINTS/TOPICS
A chapter is a series of goal focused, leading questions designed and organized to establish a particular point, which may be to:
Prove a fact Neutralize a fact Undermine a fact Weaken or Support the Witness’s (or another
witness’s) Credibility
CHAPTERS
Each chapter marshals together a group of facts that leads the jury to reach the desired conclusion, even if the witness does not agree with that conclusion.
Each chapter has its own theme that supports the theory of the case and witness, and its own conclusion
“Just like a book, there is a purpose to each chapter, and each chapter interlocks with the others”
CHAPTERS BREAK CROSS INTO EASILY UNDERSTOOD
PIECES Goal of Cross Must educate jurors & Be memorable In order to persuade Just because you have said it doesn’t mean it has
been heard by all Just because you have said it doesn’t mean it will
be remembered in deliberations If not, it was a waste of breath
WHY CHAPTERS ARE BEST
Allows you to tell the defense theory through the witness
Focused exam enhances your credibility Can make important points in the most effective
and persuasive order YOU pick the battles knowing you will win them
all BULLET PROOF
ORGANIZE BY TOPIC/POINT
SEPARATE PAGE FOR EACH TOPIC EG: MIS ID CASE: POOR CHANCE TO OBSERVE INCIDENT HAPPENED FAST VAGUE DESCRIPTION SUGGESTIVE/UNRELIABLE ID OF D
MARSHALL FACTS THAT SUPPORT TOPIC/POINT
POOR CHANCE TO OBSERVE:
SUBTOPIC-LIGHTING-IT WAS DARK
MIDNIGHT CLOUDY NIGHT ALLEY NEAREST
STREETLIGHT OUT NO LIGHTED
WINDOWS OVER ALLEY
NO LIGHTS IN ALLEY
index
IT WAS DARK Po report p1 “ M/supp p 23 Photo # 2 & PO rep Photo #3 & D Inv p
2
Midnight Raining Street light out Alley No windows
THEORY CENTERED CHAPTERS
Each chapter should be tied to a sentence of your closing argument that you outlined at the start
She didn’t tell anyone she had been raped because there was nothing to tell. She had sex with Dick because she wanted to and didn’t want others to know that. It was only when she learned she was pregnant that she said rape out of desperation and fear of her father
ORGANIZE BY TOPIC/POINT/CHAPTER
Separate page for each topic EG: consent rape case: She had no injuries Semen just means sex She finds out she is pregnant Her father is very strict She told no one for five weeks She behaved normally that night and for the five
weeks
MARSHALL FACTS THAT SUPPORT SHE TOLD NO ONE
She had many opportunities Friends at the party Phone in the bedroom Didn’t call police Walked home past three stores and four payphones Didn’t tell parents Didn’t tell teacher Didn’t tell nurse Didn’t tell guidance counselor Not that night Not next day Not that week
BREAK GLOBAL CHAPTERS DOWN INTO SMALLER
CHAPTERS
Each of the facts can become a separate chapter
These chapters get bundled together They all support the Global Chapter of She
Told No One
EXAMPLE
You want to show no D fingerprints to connect crime…
First chapter on officer’s professionalism First a chapter/topic on PO’s Training Then training on value of evidence Then trained to collect and preserve Has the ability to do it or get someone who can Then scene that night
BRING OUT HELPFUL FACT
ER nurse in rape accusation Trained to look for injuries Bruises Swelling Redness Cuts Document it Followed Training Not here in Connie complainant
NEUTRALIZE
ER nurse in rape accusation to fresh complainant: “rape” Trained to treat patient Treat everything patient says as true Not there to investigate but to treat for stated symptom Not know complainant Not see what she does when upset Etc
CAST FACT IN DIFFERENT LIGHT
ER nurse in rape accusation says complainant crying and withdrawn
Mother in the room Father in hall Not know relationship Not speak to complainant alone Not know what mother may have said to comp before hospital Not know what father said All know is what complainant chose to tell you And what you could see when you examined her
SEQUENCE WITHIN EACH TOPIC AND SUBTOPICS
MOVE GENERAL TO THE SPECIFIC LOGICAL PROGRESSION TO A
SPECIFIC GOAL
EXAMPLE
YOU WANT TO SHOW NO D FINGERPRINTS TO CONNECT CRIME…
FIRST A CHAPTER/TOPIC ON PO'S TRAINING THEN TRAINING ON VALUE OF EVIDENCE THEN TRAINED TO COLLECT & PRESERVE THEN NO TESTING IN THIS CASE
PAINT A PICTURE
MAKE IT VISUAL BREAK IMAGE DOWN MEMORABLE
HOW TO ORGANIZE CROSS
NOT BY CHRONOLOGY: REPEAT DIRECT/BORING FAILS TO TELL DEFENSE STORY IGNORES POWER OF PRIMACY &
RECENCY
Sequence the topics
What order works best
for safety
For story
For sabotage
JURY CENTERED CROSS
Have Mercy! Before we can persuade They must hear see and feel the fact They must understand it They must remember it
TO USE IT IN DELIBERATIONS
USE THE POWER OF PRIMACY & RECENCY
START STRONG END STRONG PLACE WEAKEST POINT IN THE
MIDDLE
USE TRANSITIONS
NOW I WANT TO ASK YOU ABOUT WHAT HAPPENED AFTER YOU PLACED MRS. RIVERA IN THE POLICE CAR…
HELP JURY FOLLOW APPEARS THAT YOU ARE FAIR LETS YOU JUMP AROUND IN THE CROSS SILENCE & MOVEMENT CAN TRANSITION
CONTROL=GREAT CROSSDON'T "just do it"
MAKE & STICK TO "GAME PLAN" ASK Q'S YOU KNOW ANSWER TO &
CAN PROVE FORM = LEADING STATEMENTS
FORM/TECHNIQUE
THERE ARE ONLY THREE RULES: YOU CAN PROVE IT LEADING STATEMENTS ONLY
YOU ARE A LAWYER ONE (NEW) FACT PER Q
YOU ARE A LAWYER YOU ARE CRIMINAL DEFENSE LAWYER THAT’S WHY YOU ARE HERE TO BECOME A BETTER CRIMINAL DEFENSE
LAWYER
THE ANSWER IS "YES"
LEADING QUESTION=SUGGESTS THE ANSWER
SHORT STATEMENT WITNESS HAS ONE JOB=YES THIS IS MY SHOW NOT "DID YOU ETC" START W/VERB?=NOT LEADING
THE ANSWER IS "YES"
DO NOT MOVE ON UNTIL YOU GET YOUR "YES"
BE PERSISTENT YOU WOULD NOT ASK IF COULD NOT
PROVE IT
Training the unruly witness
Repeat Repeat, repeat, reverse RCA dog Perhaps you did not understand my Q Give the finger Give your back Are you finished
SAVE CLOSING FOR CLOSING
DON'T ASK THE Q TOO MANY STOP IF YOU FEEL A "SO", "Therefore",
"AHA" CREATE THE PICTURE AND THEN
STOP WITNESS WILL NEVER AGREE WITH
THE CONCLUSION
ENEMY WORDS
WHO WHAT WHEN WHERE HOW WHY EXPLAIN DESCRIBE DID YOU/WERE YOU
BORROW LEWIS’S BULLET PROOF VEST
PRECISION = CONTROL Avoid Characterizations/subjective ConclusionsAvoid Characterizations/subjective Conclusions
“He Cooperated” Vs “You Said Stop, He Stopped Hands in air.. Name, true name”, etc Babystep So We See It
Avoid AdverbsAvoid Adverbs “He Immediately Stopped”
Exception: Where Witness Has Used That WordException: Where Witness Has Used That Word
LOOP FOR EMPHASIS
LANGUAGE OF PERSUASION
USE VIVID WORDS USE ACTION WORDS USE POWER WORDS USE WORDS THAT WILL EVOKE AN
EMOTIONAL RESPONSE DO NOT BUY INTO THEIR LANGUAGE
PERFORMANCE: LET THE STORY FLY
TONE PACE PAUSE LANGUAGE DEMONSTRATIONS-BODY DEMONSTRATIVE EVIDENCE
THE MOST IMPORTANT FACT BEYOND CHANGE?
YOU ARE!
THAT’S WHY WE SOMETIMES WIN HOPELESS CASES