Difference between revisions of "Cross-Examination"

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== Witness Control ==
 
== 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:
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Being in control of the questioning is extremely important.  As the attorney you want to be assertive, but not aggressive. However, if a witness is adversarial and non-responsive, maintaining control is crucial.  Phrase questions as narrowly as possible and try not to give them any wiggle room.  However, you should try not to become visibly flustered by the witness.  While it is important to repeat questions that are not being answered, your tone should remain even, unless the witness is hostile.  Very rarely should you ever allow exasperation or impatience to color your tone; you run the risk of seeming like a bully to an innocent witness, instead of damaging the witness' credibility as you intended.  Be very careful when acting aggressively.  
#Evasive questions
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Watch out for these type of responses:
 
#Quibbling over facts
 
#Quibbling over facts
 
#Rambling speeches
 
#Rambling speeches
 
#Answering different questions.
 
#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.
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In addition, the defense attorney may impeach the witness by confronting them with a prior written or oral statement if it contradicts their current testimony.
  
The more a witness resists giving straight answers, the more he or she will damage their credibility in front of the judge or jury.
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The more a witness resists giving straight answers, the more he or she will damage their credibility in front of the judge or jury.  However, explaining an answer is not the same as resisting; make sure to look for the difference.  
  
 
== Preparing for Cross-Examination ==
 
== 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.
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Cross-examination is a real, live event. Therefore, your ability to anticipate, plan, prepare, and practice in advance is crucial to a persuasive presentation. A good trial attorney prepares extensively for cross-examination in advance. By the trial, you should know the government's basic theory and have a sense of what a witness or co-defendant is going to say. Generally, there should not be any surprises about the witness' story.  The witness should have given a statement to the police or the prosecutor. As the defense attorney, you should go through the statement and identify what points are helpful or harmful to the client.  
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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 circumstances, the co-defendant may actually be helpful at trial. On the other hand, the co-defendant may have a motive to shift blame onto your client. Or the co-defendant's statement may be the product of coercion or abuse by the police.  
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Regardless, a good defense attorney thoroughly investigates all pre-trial statements. 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
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Consider these questions when preparing for cross-examination:
 
* What are the facts beyond dispute?
 
* What are the facts beyond dispute?
 
* What is the context for the facts beyond dispute?
 
* What is the context for the facts beyond dispute?
 
* Is the fact important to the judge?
 
* Is the fact important to the judge?
 
* Is the fact necessary to your theory of the case?
 
* Is the fact necessary to your theory of the case?
* To which witness do we address these facts?
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* Which witness are able to corroborate or deny these facts?
 
* What is believable?
 
* What is believable?
 
* What is expected?
 
* 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.  
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A successful cross-examination requires preparation by the attorney both prior to and during trial. You should try to interview all witnesses as soon as possible after the crime.  Beware of interviewing the victim or any party represented by a lawyer.  Certain jurisdiction do not permit formal depositions of victims or witnesses before trial. However, if you are able to obtain a deposition, it may prove useful at trial.  Depositions can be presented as direct evidence if the witness in unavailable. Or depositions can be used to impeach a witness.
 
 
 
Now that the evidence has been gathered, the criminal defense attorney should determine whether potential witnesses help or hurt the defendant's case.  
 
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:
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Following is a sample grid to prepare for cross-examination:
  
 
[[File:samplecrosschart.jpg]]
 
[[File: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:
 
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.
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* Do not take notes of facts you agree with -- you are just wasting time.
* Take notes of the theme
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* Take note of the theme
* Take notes of facts that are new or unknown to you
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* Note facts that are new or unknown to you
* Take notes of facts that you differ with
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* Note facts that differ from your own
* Take notes of facts that you doubt can be proven
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* Note facts that you doubt can be proven
* Take notes of facts that are overstated
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* Note facts that are overstated
* Take notes of the specific words that are uttered -- for later use in your cross-examination.
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* Take note of the specific words that are uttered -- for later use in your cross.
  
 
== Impeachment ==
 
== Impeachment ==

Revision as of 16:59, 17 June 2010