Difference between revisions of "Cross-Examination"
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Cross-examination is a real live event. Therefore, our ability to anticipate, plan, prepare and practice in advance is crucial to a persuasive presentation. | Cross-examination is a real live event. Therefore, our ability to anticipate, plan, prepare and practice in advance is crucial to a persuasive presentation. | ||
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Cross-examination is the moment in a trial when the defense attorney is permitted to ask questions of the prosecution's witnesses. Through cross-examination, a defense attorney can present their own evidence and develop a theory of the case using government witnesses. Cross-examination is important because it may be the only time/means for you to get before the judge facts, inferences and impressions which are necessary to your theory of the case. | Cross-examination is the moment in a trial when the defense attorney is permitted to ask questions of the prosecution's witnesses. Through cross-examination, a defense attorney can present their own evidence and develop a theory of the case using government witnesses. Cross-examination is important because it may be the only time/means for you to get before the judge facts, inferences and impressions which are necessary to your theory of the case. | ||
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In India, Section 138 of the Indian Evidence Act provides the criminally accused the right to confront witnesses. | In India, Section 138 of the Indian Evidence Act provides the criminally accused the right to confront witnesses. | ||
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== Goals of Cross-Examination == | == Goals of Cross-Examination == | ||
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The criminal defender should be aware that direct and cross-examinations have very different purposes and techniques. | The criminal defender should be aware that direct and cross-examinations have very different purposes and techniques. | ||
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Cross-examination, on the other hand, is a selective, targeted attack on the prosecutor's theory of the case. It is not simply rehashing the testimony that was developed during the direct examination of the witness. The criminal defender seeks to develop points that will show that the witness's testimony is inconsistent with other testimony or evidence; that the witness is biased against the defendant; that the witness has a motive to testify against the defendant; that the witness (if he is a co-defendant) had the opportunity to commit the crime; that the witness lacks knowledge of the facts and the evidence in the case; and that the witness was unable to see, hear, perceive, and observe the major events in the case. | Cross-examination, on the other hand, is a selective, targeted attack on the prosecutor's theory of the case. It is not simply rehashing the testimony that was developed during the direct examination of the witness. The criminal defender seeks to develop points that will show that the witness's testimony is inconsistent with other testimony or evidence; that the witness is biased against the defendant; that the witness has a motive to testify against the defendant; that the witness (if he is a co-defendant) had the opportunity to commit the crime; that the witness lacks knowledge of the facts and the evidence in the case; and that the witness was unable to see, hear, perceive, and observe the major events in the case. | ||
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Regardless of whether the criminal defender is preparing for direct or cross-examination, he should prepare his inquiry by answering the following questions: | Regardless of whether the criminal defender is preparing for direct or cross-examination, he should prepare his inquiry by answering the following questions: | ||
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== Scope of Cross-Examination and Collateral Facts Rule == | == Scope of Cross-Examination and Collateral Facts Rule == | ||
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Generally, a defense attorney may ask questions which are relevant to facts and/or biases that relate directly to the testimony of a particular witness. | Generally, a defense attorney may ask questions which are relevant to facts and/or biases that relate directly to the testimony of a particular witness. | ||
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| − | == | + | == Elements of a Successful Cross-Examination == |
| + | Every question in cross-examination should appeal to three facets: substantive, technical and emotional. We must understand and use all three aspects in harmony if we are to be persuasive. Cross-examination must be substantive in that it results in testimony or facts that are related to the crime the defendant is charged with. Cross-examination questions must be technically legal under the country's rules of evidence and phrased in such a way that produce the desired answer. | ||
| − | + | Finally, cross-examination questions should have an emotional impact on all three parties: the defense attorney, the witness and the judge or jury. The emotional impact of a question flows from both what you are talking about and how you are talking about it. Know the feelings you want to create in a judge. Use impact words, labels, metaphors, proverbs or nicknames to increase the emotional impact of a question. Consider whether your demeanor would be appropriate or accepted by the fact finder. Be tuned in to what is going on in the courtroom and be aware of the sensibilities of the fact finder. | |
| + | Cross-examination can be confrontational as when the defense attorney attacks the witness credibility by challenging the veracity of witness testimony or cross-examination may be informational as when the defense attorney presents facts, through cross-examination, that support a defense theory of the case. | ||
== Cross-Examination and the Theory of the Case == | == Cross-Examination and the Theory of the Case == | ||
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What is the theory of the case? Here is how three public defenders have defined theory of the case: | What is the theory of the case? Here is how three public defenders have defined theory of the case: | ||
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Cross-examination should be client-centered and driven by the law and the facts. The strategy for the cross-examination must fit within the larger strategy developed for the case. Thus, the goals of cross-examination are often to emphasize facts that support your theory of the case and deemphasize or diminish facts that do not support your theory of the case. | Cross-examination should be client-centered and driven by the law and the facts. The strategy for the cross-examination must fit within the larger strategy developed for the case. Thus, the goals of cross-examination are often to emphasize facts that support your theory of the case and deemphasize or diminish facts that do not support your theory of the case. | ||
| − | A theory of the case is a common-sense articulation of the case that combines both the law and the facts in such a way that is favorable to the client. | + | A theory of the case is a common-sense articulation of the case that combines both the law and the facts in such a way that is favorable to the client. Think of the theme as the headline to a newspaper article. You want it to be snappy and to the point. |
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== Substantive Impact == | == Substantive Impact == | ||
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* Points of Choice | * Points of Choice | ||
* Perfect Video Analysis (expected v. proven) | * Perfect Video Analysis (expected v. proven) | ||
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== Formatting the Question: Closed-Ended Questions == | == Formatting the Question: Closed-Ended Questions == | ||
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Criminal defenders should NEVER ask who, what, where, when, why, how, describe and explain during cross-examination. These are words requiring explanation that you do not want to elicit during cross-examination. The goal of cross-examination is to target the prosecutor's case and to advance the defendant's theory of the case without giving the witness an opportunity to explain their answers. You want the witness to agree with your version of events, not to develop their own. | Criminal defenders should NEVER ask who, what, where, when, why, how, describe and explain during cross-examination. These are words requiring explanation that you do not want to elicit during cross-examination. The goal of cross-examination is to target the prosecutor's case and to advance the defendant's theory of the case without giving the witness an opportunity to explain their answers. You want the witness to agree with your version of events, not to develop their own. | ||
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== Pitfalls of Cross-Examination == | == Pitfalls of Cross-Examination == | ||
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| − | Do not | + | Do not repeat good questions that receive good answers. Defense attorneys will often want to do this to emphasize a surprising answer that is beneficial to their case. However, repeating the question only gives the witness an opportunity to change or explain their answer. |
| − | + | As a general rule, a defense attorney should never ask a question when he or she doesn't already know the answer. However, under certain circumstances, a defense attorney may ask a closed ended question that the attorney does not know the answer to. Such questions are sometimes called "No Lose Questions" because it doesn't matter what the answer is. For example, when cross-examining a police officer about the report he made at the scene, you might ask "You wanted to get the most accurate information you could?" | |
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| − | As a general rule, a defense attorney should never ask a question when he or she doesn't already know the answer. However, under certain circumstances, a defense attorney may ask a closed ended question that the attorney does not know the answer to. Such questions are sometimes called "No Lose Questions" because it doesn't matter what the answer is. | ||
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| − | A successful cross-examination requires preparation by the attorney both at the investigation stage and the trial stage. | + | A successful cross-examination requires preparation by the attorney both at the investigation stage and the trial stage. Defense lawyers through their investigators should attempt to interview witnesses as soon as possible after the incident. This may be the only manner of determining the scope and content of a particular witness's testimony before trial. Beware of interviewing the victim or any party that is represented by a lawyer as this may be impermissible in your jurisdiction. |
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| − | Defense lawyers through their investigators should attempt to interview witnesses as soon as possible after the incident. This may be the only manner of determining the scope and content of a particular witness's testimony before trial. | ||
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In certain jurisdictions a defense lawyer may be permitted to conduct a formal deposition of a witness before trial. This deposition may prove useful at trial either as impeaching material or as direct evidence if the witness is unavailable because of death, mental illness or absence from the jurisdiction. | In certain jurisdictions a defense lawyer may be permitted to conduct a formal deposition of a witness before trial. This deposition may prove useful at trial either as impeaching material or as direct evidence if the witness is unavailable because of death, mental illness or absence from the jurisdiction. | ||
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*Prior inconsistent statements | *Prior inconsistent statements | ||
| − | == Bias, interest, motive, prejudice, corruption, plea deal etc. == | + | === Bias, interest, motive, prejudice, corruption, plea deal etc. === |
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| − | == Prior convictions and bad acts == | + | === Prior convictions and bad acts === |
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| − | == Prior dishonest Conduct == | + | === Prior dishonest Conduct === |
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| − | == Specific Contradictions / reality == | + | === Specific Contradictions / reality === |
A witness's statement may assert a fact that is contradicted by reality. For instance, a witness may claim it was raining when in fact it was sunny. | A witness's statement may assert a fact that is contradicted by reality. For instance, a witness may claim it was raining when in fact it was sunny. | ||
| − | == Capacity to perceive, recollect and communicate == | + | === Capacity to perceive, recollect and communicate === |
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| − | == Prior inconsistent statements == | + | === Prior inconsistent statements === |
