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