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. 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 involvements, but not the clients. 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. | 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 involvements, but not the clients. 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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| + | Consider these questions when preparing for 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? | ||
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. | 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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* Take notes of facts that are overstated | * Take notes of facts that are overstated | ||
* Take notes of the specific words that are uttered -- for later use in your cross-examination.\ | * Take notes of the specific words that are uttered -- for later use in your cross-examination.\ | ||
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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. | 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. | ||
