Cross-Examination

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Background

The goal of this section is to provide a conceptual frame work for the trial attorney to consult regarding development and delivery of a persuasive cross-examination. The materials which follow are a compilation of training materials collected from various sources over time.

Cross-examination is a real live event. Therefore, our ability to anticipate, plan, prepare and practice in advance is crucial to a persuasive presentation.


What is Cross-Examination?

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.

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.


The Right to Cross-Examination

The right to cross-examination is typically grounded in a country's constitution or evidence code and my be either express or implied. 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 has no opportunity to cross-examine a witness at the time of the statement.

The logic behind this rule is quit 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.

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."

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.

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


Goals of Cross-Examination

The criminal defender should be aware that direct and cross-examinations have very different purposes and techniques.

Direct examination requires the witness to tell a story. The goal of direct examination is for the criminal defender to elicit the witness's story in the witness's own words in a manner that will advance the overall theory of 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.


Questions to Consider

Regardless of whether the criminal defender is preparing for direct or cross-examination, he should prepare his inquiry by answering the following questions:

1. What is the overall theory of the case? 2. How does this witness fit into the overall theory of the case? 3. How can you fit this witness's story into the story that has already been told and the story that will be told after this witness testifies? 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?


Scope of Cross-Examination and Collateral Facts Rule

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.


Types of Cross-Examination

Cross-examination can be confrontational as when the defense attorney attacks the witness credibility by challenging the veracity of witness testimony. 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.


Three Facets of Cross-Examination: Substantive, Technical and Emotional

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 emotional impact on the fact finder.


Substantive Impact

Here are some facts or subject areas that should be addressed during cross-examination.

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

Thematically, the defense attorney can use the following thematic tools to focus the subject of the cross-examination

  • Physical Re-Enactment
  • Psychological Re-Enactment
  • Legal Re-Enactment
  • Points of Choice
  • Perfect Video Analysis (expected v. proven)


Emotional Impact

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.

Formatting the Question: Closed-Ended Questions

Closed-ended questions: 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. Examples:

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

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.


Pitfalls of Cross-Examination

Do not use compound or long questions which are confusing to both the witness and the jury. Short questions will focus the attention of the witness on one fact at a time.

Do not simply repeat the direct testimony of the witness. This only reinforces the prosecution's case.


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.

Exceptions to the Rule

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.

Example, when cross-examining a police officer about the report he made at the scene you ask "You wanted to get the most accurate information you could"


Transitions and Headline Questions

It is often difficult to phrase a leading question that can result in smooth transitions between subject areas for questioning a witness. In such cases, it may be helpful to change the subject by using a transition or headline question. Transitional statements can 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 2nd October, 2009", "Let's talk about the lighting conditions at the market on the evening of July 29, 2009" or "Your vision isn't what it used to be, is it?"

Although there is no question, this transitional statement is permissible. It sends a que to both the witness and the fact finder that the subject area of questioning is about to change.


Looping

"Looping" is a term that describes a method of sequences 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 permits 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's 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

A successful cross-examination requires preparation by the attorney both at the investigation stage and the trial stage.

Investigatory 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.

Format for multi-part Cross-Examination

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

Impeachment Generally

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.


Who may Impeach?

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.


Areas of impeachment?

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.
  • Prior convictions and bad acts
  • Prior dishonest conduct
  • Specific contradictions / reality
  • Capacity to perceive, recollect and communication (i.e. vision, memory, etc.)
  • Despoliation of evidence
  • Prior inconsistent statements

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,


Prior inconsistent statements

A defense attorney can 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 their credibility and establishes an a question of fact for the jury. Impeachment by prior inconsistent statement can be achieved in three steps:

  • 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. Some jurisdictions may permit the defense attorney to "refresh" the recollection of the witness by providing them with a copy of their own statements.


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.