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Common Errors in Cross-Examination, or Five Bad Habits of Highly Ineffective Cross-Examiners

I got my first up close exposure to skilled cross-examination during a federal drug trial where my client was convicted - even though he was twenty-five miles away from the cocaine, and even though his co-defendant (who rented the car where the kilos were found, was driving the car when the kilos were found, and had cocaine in both his wallet and front pocket) was acquitted.

While working on the appeal, I kept asking myself, "How could that jury acquit the obviously guilty defendant and convict my obviously innocent (yeah, right) client?" As I reviewed the trial transcripts, the answer gradually began to emerge. The co-defendant's attorney, Ms. X, was very skilled. Although she handles mostly domestic relations cases, her first love is criminal law. In my opinion, she made her case, and won an acquittal, based entirely on skillful cross-examination.

As a result, I was motivated to attend some training on the art of effective cross-examination at out of state seminars. They were expensive and time consuming, but also very helpful. After each training, I would re-examine the transcripts of that federal drug trial. I noted how the excellent cross-examination conducted by Ms. X was really just an adept implementation of the techniques taught at these seminars and training sessions.

The following is a discussion of five mistakes lawyers commonly make that can result in less than effective cross-examination and, frequently, a devastating loss for the client.

1. Failure to read and study the techniques taught by Larry Pozner, Albert Kreiger, Terrance MacCarthy and the National Criminal Defense College.

I leave out the citations based on my feeling that anyone who cares enough to learn should and will find their own way.

2. Failure to set goals.

The lawyer should ask himself/herself some simple questions like, "Why am I here?" and "Why am I doing this?" If you know where you are going before you begin, you might end up with a couple of benefits. First, you are forced to prepare early for the eventuality of a real trial. Second, you can avoid a situation where you keep telling yourself, "Gee, I wish I had done that early in the case." In a felony criminal case, the first opportunity for cross-examination is the preliminary hearing. As the preliminary hearing date approaches and the above questions are asked, the lawyer might say something like, "I'm doing the preliminary hearing because I want to get sworn testimony that establishes facts I can use at the suppression hearing and/or trial."

For example, if you are fairly certain that your client only consented to the search following threats from the police that the children would be taken away by DCFS unless the client allowed a search, you might want to fashion a cross-examination that will set testimony relevant to voluntariness in concrete at the preliminary hearing. If you wait until the suppression hearing, you may not get what you want from the witnesses. After all, you have to file a motion and a memorandum in order to even get a suppression hearing, and chances are that the prosecutor will share your memorandum with the government witnesses - thereby either wittingly or unwittingly leading those government witnesses to tailor their testimony. Chances are that you can use surprise to your advantage early on before the issues become formulated. If you've already established the winning facts at the preliminary hearing (complete with a transcript) you know that you can elicit the winning facts at the suppression hearing or trial.

In order to cross-examine effectively at the preliminary hearing in anticipation of a trial, you better have a good idea about what the key issues will be at trial long before the preliminary hearing. A good way to narrow the issues and help you focus your efforts is to get the jury instructions (or at least a close approximation) ready within a couple of days of accepting your retainer. I know you're thinking, "That takes a lot of work and maybe the case won't even go to trial." A simple way to get a lot of instructions quickly is to get on the legal research computer and find an appellate decision on a recent similar case that went to trial in your area. Then go to the clerk's office and voila: you can get the defendant's proposed, the government's proposed and the court's instructions in about five minutes for a small copying fee. Now you've got fifty to eighty instructions. Read all of them and pull out those four or five instructions that cause you to say to yourself "Hey, this is going to be really important if this case goes to trial." Perhaps those are instructions on mere presence, lack of knowledge, nexus and the elements of the crime.

Now you've got a good idea of what is going to matter at trial because you've already done a thorough investigation, interviewed (and tape recorded) every witness and obtained photographs of the crime scene, right? And the preliminary hearing is still six weeks away.

Now you can prepare your cross-examination with a goal, i.e., getting the prosecution witnesses to admit, under oath, every fact you are going to need to win at trial, such as "Yes, there were nine illegal aliens at the residence at the time of the search"; "Yes, the drugs were found in a common area"; "Yes, your client never made an incriminating statement of any kind"; "Yes, your client denied any knowledge of the presence of the drugs"; "Yes, your client had pay check stubs showing full time employment"; "Yes, your client was totally cooperative and was not one of the people who fled out the back door at the first sign of the police"; "Yes, it's true we found nothing linking your client to the drugs"; and "Yes, it's true, the two people who ran out the back door had criminal convictions for prior drug crimes and both of their fingerprints were found on the baggie, and their location documents were found in a different bedroom from that occupied by your client."

Every fact that you would like to set forth in your closing argument to the jury at trial can and should, if possible, be elicited from the witnesses at the preliminary hearing. I can hear you saying, "But the prosecutor only calls one or two witnesses at the preliminary hearing." My only response is, "You've got subpoena power and, after all, your client paid you a $5000 retainer. Get out there and do the job."

3. Failure to write out questions.

You can tell a really ineffective lawyer because he spends his time during direct examination writing down the questions asked by the prosecutor, and maybe some lame cross-examination questions, instead of listening and observing. Shouldn't the defense lawyer already know exactly what the prosecutor is going to ask each witness months before the proceeding? Shouldn't he already have the full interrogation in his file when he gets to court? I mean, prosecutors can be dumb, right? Don't they ask the same questions every time they go to court? "What happened next?" and "Then what happened?"

Writing out your cross-examination questions in advance helps you in a number of ways. First, it forces you to think about the issues, look at the law closely and focus your thoughts. Secondly, we are all human and can make mistakes. How many times have you walked out of court and said to yourself, "Oh no, I should have asked this and I should have asked that; I was going to, but then it slipped my mind"? I have heard a lot of excuses for not writing out the questions, but they all come down to the same thing: excuses for laziness. Equally important is to note the location of the impeachment material right next to the question in bold face so that you can read it. You do have impeachment material for each question, right? When the witness balks, you can march right over to your file box and immediately obtain the impeachment material. "You know a police report is an official record"; "You know that it is a crime to falsify official records"; "You would never falsify an police report, isn't that true?"; "When you wrote this police report you were complete?"; "Thorough?"; "Accurate?"; "Officer, showing you your own police report, isn't it true that you stated you were not present when Officer Jones was interviewing my client?"; "Now asking you again, isn't it true that you were not present when my client was interviewed?"

Nothing looks worse or is more embarrassing than a lawyer who has to fish around in the file for five minutes looking for an impeachment document (which he may or may not find) while everyone sits around twiddling their thumbs - except of course, the judge, who just keeps getting madder and madder, spending the whole time thinking about ways she can harm your client. You are aware that some jurors will convict or acquit based upon whether they like or dislike defense counsel. Don't make the jurors hate you. Don't waste their time. Yes, I know. You are an important person and you graduated from law school. But the jurors don't care and they probably started off the trial hating you just because the judge called you, "Defense counsel."

4. Failure to narrowly tailor questions.

Another benefit of writing out your questions in advance is that you have the ability and the time to formulate the verbiage to your client's best advantage. Trying to wing it just doesn't fly. If you prepare in advance, you can take as much time as needed to formulate the perfect questions and the perfect order. Trying to come up with the perfect question in two seconds does not usually work. Another reason to write out the questions is to avoid the possibility that you might blow it and ask an open-ended question. Observe two variations of the same general question which result in two totally different responses and results for the client. "Q: You went to the home because you were dispatched to that location, right? A: Yes" versus "Q: Why did you go to the home? A: Because your client had raped the daughter, stabbed the grandmother and kicked the pregnant mother down the stairs and they needed my help."

Narrowly tailoring the question is just another way of saying that the question must be formulated in such a manner and through such a technique that there is only one possible answer. If you read the authorities cited in paragraph one you will learn that answer.

5. Failure to force the correct response.

If the witness waffles, you must impeach. After all, you wouldn't have even bothered to even ask the question unless you had the impeachment material at your finger tips, right? You do have impeachment material right? Indexed? Impeachment is witness control. After you have effectively controlled most witnesses once or twice, they will almost always respond like well-trained animals (although young, aggressive police officers may have to be impeached five or six times before they learn the lesson). After all, if the witness only has two options, "say what you want him to say" or "be exposed and degraded as a liar in public," chances are the witness will choose the former. For more on this read Posner.

In any event, once the witness is sufficiently well-trained you must not leave the icing off the cake. Proceed to make him answer correctly. Letting witnesses off the hook creates bad habits. They will think they can mess with you. The proper sequence is: cop tells lie, defense counsel impeaches, defense counsel forces the correct answer, then move on to the next question. Impeachment is nice, but the real purpose is to get the correct answer. So, don't give up until you've got it.

I don't claim to be great at cross-examination, but I do claim to be much better than I was before I learned some technique. Cross-examination is an art that can be developed only through study, hard work and repeated practice. Study the experts, work hard preparing, and you and your client will enjoy the benefits of your effort.

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This page contains a single entry from the blog posted on October 7, 2002 2:54 AM.

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