Difference between revisions of "Cross-Examination"

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Cross-examination, on the other hand, is a targeted attack on the prosecutor's theory of the case.  The focus should be on the attorney, leading the witness to answer the questions to support the defense's theory.  During cross-examination the defense attorney seeks to persuade the jury that the witness' testimony is:  
 
Cross-examination, on the other hand, is a targeted attack on the prosecutor's theory of the case.  The focus should be on the attorney, leading the witness to answer the questions to support the defense's theory.  During cross-examination the defense attorney seeks to persuade the jury that the witness' testimony is:  
a) inconsistent with other testimony or evidence
+
# inconsistent with other testimony or evidence
b) biased against the defendant
+
# biased against the defendant
c) the result of a witness' personal motive
+
# the result of a witness' personal motive
d) demonstrates that the witness (if a co-defendant) had the opportunity to commit the crime
+
# demonstrates that the witness (if a co-defendant) had the opportunity to commit the crime
e) illustrates the witness'lack of knowledge of the facts and the evidence, or
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# illustrates the witness'lack of knowledge of the facts and the evidence, or
f) shows the witness' inability to see, hear, perceive, and observe important parts of the incident   
+
# shows the witness' inability to see, hear, perceive, and observe important parts of the incident   
  
 
Regardless of whether the criminal defender is preparing for direct or cross, he should prep the case by answering the following questions:
 
Regardless of whether the criminal defender is preparing for direct or cross, he should prep the case by answering the following questions:

Revision as of 10:41, 17 June 2010

Background

Cross-examination is an opportunity for the defense attorney to question the prosecution's witnesses during a trial. Cross-examination is an effective way for the defense to present evidence by using government witnesses. On cross, the attorney should be asking questions that develop the defense's theory of the case theory of the case. Cross may be the defense's only opportunity to present important facts, inferences and impressions.

Direct examination and cross-examination have very different purposes and techniques. Direct examination is the opportunity for the witness to tell their story. The attorney should simply be helping the witness to tell the story by asking the witness open-ended questions.

Cross-examination, on the other hand, is a targeted attack on the prosecutor's theory of the case. The focus should be on the attorney, leading the witness to answer the questions to support the defense's theory. During cross-examination the defense attorney seeks to persuade the jury that the witness' testimony is:

  1. inconsistent with other testimony or evidence
  2. biased against the defendant
  3. the result of a witness' personal motive
  4. demonstrates that the witness (if a co-defendant) had the opportunity to commit the crime
  5. illustrates the witness'lack of knowledge of the facts and the evidence, or
  6. shows the witness' inability to see, hear, perceive, and observe important parts of the incident

Regardless of whether the criminal defender is preparing for direct or cross, he should prep the case by answering the following questions:

  1. What is the overall theory?
  2. How does this witness fit into that theory?
  3. Where does this witness' story fit in presenting the theory? Does this witness establish the theory or simply provide support?
  4. How will the witness's testimony help you to develop your client's story? To counter the prosecutor's story?
  5. What evidence do you need to introduce or rely on during direct examination? During cross-examination?
  6. What evidence will the prosecutor rely on during direct examination? During cross-examination? What questions can you ask or what evidence can you use to counter the prosecutor's evidence?

The Right to Cross-Examination

Justice Antonin Scalia of the United States Supreme Court has called cross-examination the crucible in which the reliability of evidence is tested . Because cross-examination is the only method by which the defendant may directly challenge the veracity of a government witnesses testimony, it is one of the most fundamental and important rights of the accused.

The right to cross-examination is typically found in a country's constitution or evidence code. Generally, the right guarantees a defense lawyer the opportunity to ask questions of government witnesses at trial. It may also preclude the introduction of written statements at trial when the defense had no opportunity to cross-examine the witness at the time of the statement. The logic behind this rule is very simple. If the right to confrontation did not extend to written statements, it would easily permit the prosecution to circumvent the right to confrontation at trial.

United States - In the United States the Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him."

China - In China, CPL Articles 47 and 156 give criminal defenders the right to conduct direct and cross-examination of witnesses in criminal cases. CPL Articles 156, 157 and 160 give criminal defense attorneys the right to use evidence to impeach the prosecution's witnesses.

India - In India, Section 138 of the Indian Evidence Act provides the criminally accused the right to confront witnesses.

Scope of Cross-Examination

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. In some jurisdictions cross-examination may limited to the scope of the government's direct examination. Finally, the collateral facts rule allows the government to object when a defense attorney is cross-examining or impeaching a witness on issues that are collateral or irrelevant to the question of law or fact at issue in the case.

Elements of a Successful Cross-Examination

Every question in cross-examination should appeal to three aspects of the case: substantive, technical, and emotional. The criminal defense attorney must understand and use all three aspects in harmony if they 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 the substantive nature of the question and the method of presentation. The criminal defense lawyer should know the feelings they want to create in the judge, using impact words, labels, metaphors, proverbs or nicknames to increase the emotional impact of the question. The defense attorney should consider whether their 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

What is the theory of the case? Here is how three public defenders have defined theory of the case:

"That combination of facts and law which in a common sense and emotional way leads the judge to conclude a fellow citizen is wrongfully accused" - Tony Natale, Federal Defender
"The central theory that organizes all facts, reasons, arguments and furnishes the basic position from which one determines every action in the trial" - Mario Conte
"A paragraph of one to three sentences which summarizes the facts, emotions and legal basis for the citizen accused's acquittal or conviction on lesser charge while telling the defenses story of innocence or reduced culpability" - Vince Aprile

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. Think of the theme as the headline to a newspaper article. You want it to be snappy and to the point.

Closed-Ended Questions

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 defense attorneys 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.

Closed-ended questions require the witness to answer yes, no or as briefly as possible; therefore, the criminal defender should always ask these types of questions on cross-examination. Open-ended questions are typically used during direct examination, because these allow the witness to tell their story without interruption. Following are examples of closed-ended questions:

  • Was the bar crowded the night that the fight occurred?
  • Were you still there when the fight ended?

Pitfalls of Cross-Examination

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?"

Transitions and Looping Techniques

It is often difficult to ask a closed-ended question that smoothly transitions a witness from one subject area to another. In such cases, it may be helpful to change the subject by using a transition or headline question. Although these are not questions, transition statements are generally permissible because they notify the witness and the fact finder that the subject area has been changed.

For instance during cross examination, the defense attorney might say, "Now I'd like to talk about the night of October 2, 2009" or "Let's talk about the lighting conditions at the market on the evening of July 29, 2009"

There are many ways of structuring a cross-examination that has multiple parts. The defense attorney should always keep in mind that the fact finder is most likely to remember the first and the last facts established at cross examination. Therefore, the defense attorney should develop a strategy that emphasizes strong points at the beginning and end of the cross-examination. Following is a sample outline for a multi-part cross-examination.

  1. Introduction / set up /transition
  2. 1st Subject
  3. Transition
  4. 2nd Subject
  5. Transition
  6. 3rd Subject
  7. Transition
  8. Closing Subject

"Looping" is a term that describes a method of sequencing questions in order to put emphasis on certain facts you wish to highlight to the finder of fact. When a defense attorney loops questions, he uses the answer to the prior question in order to start additional questions. Looping has three stages:

  1. Establish fact through closed-ended question.
  2. Reuse fact in second question, thus re-emphasizing fact.
  3. Continue to build in a continuous loop.

Witness Control

It is normal for an adversarial witness to be unresponsive to questioning. Therefore, it is crucial that the questions are phrased narrowly and in such a way that only permit the witness to answer in a yes or no fashion. Watch out for these four types of unresponsive questions:

  1. Evasive questions
  2. Quibbling over facts
  3. Rambling speeches
  4. Answering different questions.

One mistake defense attorneys often make is permitting the witness to control the questioning. If a witness does not answer the question, the question should be repeated or rephrased until the witness concedes. One method of doing this is to repeat the question a second or even third time by adding inflection and exasperation to the tone of the question. This notifies the jury that the witness is not answering the question and damages the witness' credibility.

In addition, the defense attorney may confront the witness with a prior written or oral statement if it contradicts their current statement at trial.

The more a witness resists giving straight answers, the more he or she will damage their credibility in front of the judge or jury.

Preparing for Cross-Examination

Cross-examination is a real live event. Therefore, our ability to anticipate, plan, prepare, and practice in advance is crucial to a persuasive presentation. A good trial attorney always prepares extensively for cross-examination in advance of trial. By the time trial arrives you should know the government's theory of the case and have a sense of what a witness or co-defendant will testify about generally. At this point there should be no surprises because usually a testifying witness has already given a statement to the police or prosecutor. Therefore, it is important for the criminal defense attorney to go through this statement to identify what is helpful or harmful to the client. For instance, a co-defendant story may contradict other evidence in the prosecutor's case or the co-defendant testimony may identify his own involvement, but not the client's. In these instances, the co-defendant may actually be helpful at trial. On the other hand, the co-defendant may have a motive to shift blame onto the client to mitigate his role in the alleged crime. Or the co-defendant's statement may be the product of coercion or abuse by the police. Whatever the case, the criminal defense attorney must go through any pre-trial statements of all witnesses. If the witness deviates from the script of his prior statement, the defense attorney will have ample grounds to argue that he is inconsistent or unreliable.

Consider these questions when preparing for cross-examination

  • What are the facts beyond dispute?
  • What is the context for the facts beyond dispute?
  • Is the fact important to the judge?
  • Is the fact necessary to your theory of the case?
  • To which witness do we address these facts?
  • What is believable?
  • What is expected?

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. 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.

Now that the evidence has been gathered, the criminal defense attorney should determine whether potential witnesses help or hurt the defendant's case.

Following is a sample grid that a lawyer may use to prepare for cross-examination:

Samplecrosschart.jpg

Although significant preparation can be done before the trial itself, the prosecutor's opening statement will also provide valuable information. While listening to the prosecutor's opening statements:

  • Do not take notes of facts you agree with -- you just wasting time.
  • Take notes of the theme
  • Take notes of facts that are new or unknown to you
  • Take notes of facts that you differ with
  • Take notes of facts that you doubt can be proven
  • Take notes of facts that are overstated
  • Take notes of the specific words that are uttered -- for later use in your cross-examination.

Impeachment

Impeachment is an allegation, supported by proof, that a witness who has been examined is unworthy of credit. Impeachment may be indirect, as through a second witness or presentation of other physical evidence or direct, typically in cross-examination or even direct examination (if permissible.) Cross-Examination is one of the primary places that a defense attorney can impeach a witness. Generally, a defense attorney may impeach prosecution witnesses subject to limitations of the evidence code. Under certain circumstances, an attorney may even impeach their own witnesses.

When preparing for a case, imagine how any one of these areas might impact the witness's credibility:

Bias, interest, motive, prejudice, corruption, plea deal etc.

The most common method of impeaching the credibility of a witness is bias, particularly when a witness has a personal relationship with the victim. Similarly, a witness who has been given a special deal by the prosecution has a strong incentive to lie.

Prior convictions and bad acts

The admissibility of prior convictions and bad acts varies from country to country. However, a defense attorney should always keep these in mind. In the United States the rules regarding the admissibility of prior convictions as impeachment evidence is complex. However, as a general rule convictions that go directly to honesty of a witness are the most powerful. Prior bad acts are also great fodder for cross-examination if they are admissible in court. In the United States, prior bad acts are not admissible to show conformity with conduct on a certain occasion. Thus, evidence of prior burglaries cannot be used to prove a defendant is guilty of burglary on a certain occasion. However, prior bad acts may be admissible in the United States for other, so-called "non propensity" reasons: motive, opportunity, intent, preparation, plan knowledge, identity or absence of mistake. The rules of evidence surrounding prior bad acts will vary greatly from jurisdiction and the defense attorney should study these carefully if the client has any history of bad acts that could be an issue at trial.

Prior dishonest conduct

Prior dishonest conduct, like prior convictions for tax evasion or perjury, may be admissible so that the fact finder can evaluate the credibility of a particular witness.

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.

Capacity to perceive, recollect and communicate

A powerful method of impeachment during cross-examination is to attack a witness's ability to perceive, recollect, and communicate. For instance, in a case of eyewitness misidentification, the defense attorney may attack wht witness's vision by showing that the witness was not wearing her glasses at the time of the incident.

Prior inconsistent statements

A defense attorney can also impeach a witness by prior inconsistent statement during cross-examination. This can be one of the most powerful methods of cross-examination because it simultaneously undermines the witness's credibility and establishes a question of fact for the jury. There are at least two ways of looking at prior inconsistent statements. In some cases, the lawyer will want to argue that the first statement is the most accurate of the two statements. In other cases, the lawyer may argue that it was the second statement that is more reliable. Finally, in some cases, the lawyer may simply want to show that the witness is totally unreliable

Following is a three-step guide to impeachment by prior inconsistent statement when the goal of impeachment is to bolster the credibility of the witness's first statement:

  • Step 1: Commit the witness to the statement by asking leading questions.
  • Step 2: Commit the witness to the circumstances surrounding the statement that increases chances the statement was accurate.
  • Step 3: Confront the witness with the contradiction.

Refreshing Recollection

By the time a case goes to trial several months may have passed since the alleged incident occurred. Therefore, it is common that witnesses no longer remember certain facts. Sometimes, a witness may have provided testimony to police officers or investigators early in a case. In some jurisdictions the court may permit the defense attorney to "refresh" the recollection of the witness by providing them with a copy of their own statements. If refreshing recollection is permissible in your jurisdiction, you should be familiar with the steps necessary to establish the foundation for the procedure in court.

Browne v. Dunne: Limits on Impeachment

In some jurisdictions the special rule of Browne v. Dunne may apply. Dunne is a "fairness" rule that guarantees that a witness that subject to cross-examination has the opportunity to agree or contradict evidence introduced in contradiction of the witness's testimony. If this rule applies, the criminal defense attorney must ask the witness for an opportunity to explain the contradiction.

Cross-Examination Hypothetical

CASE FILE: Sahil Kumar was shocked when police came to his home and arrested him for robbery. He was taken to the police station, where a 76-year-old man identified him as having stolen his wallet at the Chawri market that morning. Kumar admitted he was at the market that morning, but insists that he is innocent. He has visible bruises on his face, and claims the police forced him to confess to the crime by torturing him for two days, before producing him in front of the magistrate. As a result of your investigation you have identified four potential witnesses who may appear at trial: A pickpocket who identified Sahil Kumar as the thief, the victim, the victim's doctor, and the police officer who arrested Kumar.

Your investigator has discovered the following important facts:

  1. The pickpocket was arrested on the same morning as your client and was subsequently released from custody after he identified Sahil Kumar as the thief,
  2. After the incident the victim told the police that the thief was 1.8 meters tall and weighed 118 kilograms.
  3. The victim has glaucoma, a degenerative eye condition, which was first diagnosed by his doctor in 2002.
  4. Your client is actually 1.7 meters tall and weighs only 80 kilograms.

Sahilkumarcrosschart.jpg

Sample Cross-Examination of Victim

Q: I'd like to talk about your vision. You were diagnosed with glaucoma in 2002?

A: Yes.

Q: The doctor said you've lost most of your peripheral vision, isn't that right?

A: Yes.

Q: That means you can't see as well as you used to, can you?

A: No.

Q: Now I want to talk about what happened after you were robbed at the market.

A: OK.

Q: You called the police, right?

A: Yes.

Q: The police came?

A: Yes.

Q: And then they took you back to the police station, correct?

A: Yes.

Q: They brought the defendant to you in the station, right?

A: Yes.

Q: And then the police asked you if this man robbed you at the market, right?

A: Yes.

Q: And you said that he did.

A: Yes.

Q: I'd like to go back to the market for a second. When the police arrived they interviewed you there, didn't they?

A: Yes.

Q: And at that point you had just been robbed an hour before.

A: Yes.

Q: So your memory was fresh.


Q: Fresher than it is now?

A: I suppose so. Q: You gave a description of the thief to the police?

A: Yes.

Q: And you wanted the description to be as complete as possible?so the police would have the best chance of catching the thief?

A: Yes.

Q: And you told them the thief was 1.8 meters tall.

A: Yes.

Q: And you also told them that the thief was at least 127 kilograms?

A: Yes

Q: Thank You.