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CROSS-EXAMINATION

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  1. CROSS-EXAMINATION MAKING PROSECUTION WITNESSES TELL OUR STORY OF INNOCENCE Cathleen Bennett October, 2004

  2. Cross-Examination: Science and Techniques Larry S. Pozner Roger J. Dodd The Michie Co.

  3. Why We Cross Examine • To Prove our Theory of the Case • Get Evidence/Facts To Argue In Closing • To Tell Defense Story Through Prosecutor’s Witnesses • Believability factor exponentially increased

  4. WHEN WE CROSS EXAMINE… • We Prove That We Are Trustworthy • Our word matters and we keep it • We who know facts cold • We send the PREPARATION subliminal message • Focused=respect jurors time and intelligence • Not hired gun with a bag of tricks

  5. DANGERS OF OFF -THEORY CROSS CONFUSING • RISK OF FILLING IN GAPS IN PROS CASE • BAD ANSWER • DISORGANIZED • REPETITIVE • NO CONTROL

  6. The HALLWAY & Control

  7. THE KEYS TO CONTROL & SUCCESS • PREPARATION • GOAL ORIENTED (Theory Centered/Driven Content) • "QUESTION" FORM • ORGANIZATION/SEQUENCE OF CONTENT

  8. COMMON CROSS TOPICS • GET GOOD FACTS • SHOW INCONSISTENCY – another witness; physical evidence; common sense • BIAS – for prosecution or against the client • MOTIVE TO LIE • IMPEACH W/CONVICTION (CREDIBILITY) • LACK OF CAPACITY

  9. COMMON CROSS TOPICS • To show important omission • Things not done/tested/investigated • Put a fact in context • Neutralize fact • Cast in different light

  10. THEORY CENTERED CROSS • Primary Purpose: to further the defense theory of the case • Theory = short statement that summarizes the factual, legal and emotional reasons for why the jury should acquit the defendant • The best theory will account for and/or adopt all facts beyond change

  11. THEORY CENTERED CROSS • NOT ALL WITNESSES NEED BE CROSS-EXAMINED • CROSS-EXAMINATION NEED NOT BE CROSS (HOSTILE)

  12. TYPES OF CROSS-EXAMINATION • CONSTRUCTIVE • DESTRUCTIVE • MIXED • CONSTRUCTIVE FIRST • REMEMBER-DON'T PISS OFF THE ALLEGATORS BEFORE YOU TRY TO CROSS THE SWAMP

  13. HOW DO YOU DECIDE? • HOW DOES WITNESS EFFECT MY THEORY? • CAN WITNESS HELP? • DOES WITNESS HURT? • CAST DIFF. LIGHT? • THEORY, THEORY,THEORY

  14. DEVELOP A THEORY OF THE WITNESS • Who is this person? • Walk in their shoes, see & hear thru their eyes, ears and heart • What is their stake in the case? • What is W’s relationship to the client, complainant, police, pros, other witnesses • Does w have a record? Admissible?-and • Does it MATTER? • How do we want the jury to feel about this person?

  15. Police Reports Witness Statements Crime Scene Physical Evidence Turret Tape Police Rules & Regs Transcripts: Bail Hrg Dangerousness Hearing Vtp Hearing Mot Supp Defense Investigation SOURCES OF CROSS INFO

  16. Outline Closing Id/index FACTS NECESSARY TO ARGUE Id Every Source of that Fact Charts Can Help Create Pros Slam Dunk Case & Compare It To Your Case Create Slam Dunk Police Investigation & Compare It To Your Case Identify things that should be there if client was guilty but are not in the case Did they even look for that evidence? HOW TO PREPARE

  17. ORGANIZE CROSS INTO CHAPTERS/POINTS/TOPICS • A chapter is a series of goal focused, leading questions designed and organized to establish a particular point, which may be to: • Prove a fact • Neutralize a fact • Undermine a fact • Weaken or Support the Witness’s (or another witness’s) Credibility

  18. CHAPTERS • Each chapter marshals together a group of facts that leads the jury to reach the desired conclusion, even if the witness does not agree with that conclusion. • Each chapter has its own theme that supports the theory of the case and witness, and its own conclusion • “Just like a book, there is a purpose to each chapter, and each chapter interlocks with the others”

  19. CHAPTERS BREAK CROSS INTO EASILY UNDERSTOOD PIECES • Goal of Cross • Must educate jurors & • Be memorable • In order to persuade • Just because you have said it doesn’t mean it has been heard by all • Just because you have said it doesn’t mean it will be remembered in deliberations • If not, it was a waste of breath

  20. WHY CHAPTERS ARE BEST • Allows you to tell the defense theory through the witness • Focused exam enhances your credibility • Can make important points in the most effective and persuasive order • YOU pick the battles knowing you will win them all • BULLET PROOF

  21. ORGANIZE BY TOPIC/POINT • SEPARATE PAGE FOR EACH TOPIC • EG: MIS ID CASE: • POOR CHANCE TO OBSERVE • INCIDENT HAPPENED FAST • VAGUE DESCRIPTION • SUGGESTIVE/UNRELIABLE ID OF D

  22. POOR CHANCE TO OBSERVE: SUBTOPIC-LIGHTING-IT WAS DARK MIDNIGHT CLOUDY NIGHT ALLEY NEAREST STREETLIGHT OUT NO LIGHTED WINDOWS OVER ALLEY NO LIGHTS IN ALLEY MARSHALL FACTS THAT SUPPORT TOPIC/POINT

  23. IT WAS DARK Po report p1 “ M/supp p 23 Photo # 2 & PO rep Photo #3 & D Inv p 2 Midnight Raining Street light out Alley No windows index

  24. THEORY CENTERED CHAPTERS • Each chapter should be tied to a sentence of your closing argument that you outlined at the start • She didn’t tell anyone she had been raped because there was nothing to tell. She had sex with Dick because she wanted to and didn’t want others to know that. It was only when she learned she was pregnant that she said rape out of desperation and fear of her father

  25. ORGANIZE BY TOPIC/POINT/CHAPTER • Separate page for each topic • EG: consent rape case: • She had no injuries • Semen just means sex • She finds out she is pregnant • Her father is very strict • She told no one for five weeks • She behaved normally that night and for the five weeks

  26. MARSHALL FACTS THAT SUPPORT SHE TOLD NO ONE • She had many opportunities • Friends at the party • Phone in the bedroom • Didn’t call police • Walked home past three stores and four payphones • Didn’t tell parents • Didn’t tell teacher • Didn’t tell nurse • Didn’t tell guidance counselor • Not that night • Not next day • Not that week

  27. BREAK GLOBAL CHAPTERS DOWN INTO SMALLER CHAPTERS • Each of the facts can become a separate chapter • These chapters get bundled together • They all support the Global Chapter of She Told No One

  28. EXAMPLE • You want to show no D fingerprints to connect crime… • First chapter on officer’s professionalism • First a chapter/topic on PO’s Training • Then training on value of evidence • Then trained to collect and preserve • Has the ability to do it or get someone who can • Then scene that night

  29. BRING OUT HELPFUL FACT • ER nurse in rape accusation • Trained to look for injuries • Bruises • Swelling • Redness • Cuts • Document it • Followed Training • Not here in Connie complainant

  30. NEUTRALIZE • ER nurse in rape accusation to fresh complainant: “rape” • Trained to treat patient • Treat everything patient says as true • Not there to investigate but to treat for stated symptom • Not know complainant • Not see what she does when upset • Etc

  31. CAST FACT IN DIFFERENT LIGHT • ER nurse in rape accusation says complainant crying and withdrawn • Mother in the room • Father in hall • Not know relationship • Not speak to complainant alone • Not know what mother may have said to comp before hospital • Not know what father said • All know is what complainant chose to tell you • And what you could see when you examined her

  32. SEQUENCE WITHIN EACH TOPIC AND SUBTOPICS • MOVE GENERAL TO THE SPECIFIC • LOGICAL PROGRESSION TO A SPECIFIC GOAL

  33. EXAMPLE • YOU WANT TO SHOW NO D FINGERPRINTS TO CONNECT CRIME… • FIRST A CHAPTER/TOPIC ON PO'S TRAINING • THEN TRAINING ON VALUE OF EVIDENCE • THEN TRAINED TO COLLECT & PRESERVE • THEN NO TESTING IN THIS CASE

  34. PAINT A PICTURE • MAKE IT VISUAL • BREAK IMAGE DOWN • MEMORABLE

  35. HOW TO ORGANIZE CROSS • NOT BY CHRONOLOGY: • REPEAT DIRECT/BORING • FAILS TO TELL DEFENSE STORY • IGNORES POWER OF PRIMACY & RECENCY

  36. Sequence the topics What order works best for safety For story For sabotage

  37. JURY CENTERED CROSS • Have Mercy! • Before we can persuade • They must hear see and feel the fact • They must understand it • They must remember it TO USE IT IN DELIBERATIONS

  38. USE THE POWER OF PRIMACY & RECENCY • START STRONG • END STRONG • PLACE WEAKEST POINT IN THE MIDDLE

  39. USE TRANSITIONS • NOW I WANT TO ASK YOU ABOUT WHAT HAPPENED AFTER YOU PLACED MRS. RIVERA IN THE POLICE CAR… • HELP JURY FOLLOW • APPEARS THAT YOU ARE FAIR • LETS YOU JUMP AROUND IN THE CROSS • SILENCE & MOVEMENT CAN TRANSITION

  40. CONTROL=GREAT CROSSDON'T "just do it" • MAKE & STICK TO "GAME PLAN" • ASK Q'S YOU KNOW ANSWER TO & CAN PROVE • FORM = LEADING STATEMENTS QUESTIONS

  41. FORM/TECHNIQUE • THERE ARE ONLY THREE RULES: • YOU CAN PROVE IT • LEADING STATEMENTS ONLY • YOU ARE A LAWYER • ONE (NEW) FACT PER Q • YOU ARE A LAWYER • YOU ARE CRIMINAL DEFENSE LAWYER • THAT’S WHY YOU ARE HERE • TO BECOME A BETTER CRIMINAL DEFENSE LAWYER

  42. THE ANSWER IS "YES" • LEADING QUESTION=SUGGESTS THE ANSWER • SHORT • STATEMENT • WITNESS HAS ONE JOB=YES • THIS IS MY SHOW • NOT "DID YOU ETC" • START W/VERB?=NOT LEADING

  43. THE ANSWER IS "YES" • DO NOT MOVE ON UNTIL YOU GET YOUR "YES" • BE PERSISTENT • YOU WOULD NOT ASK IF COULD NOT PROVE IT

  44. Training the unruly witness • Repeat • Repeat, repeat, reverse • RCA dog • Perhaps you did not understand my Q • Give the finger • Give your back • Are you finished

  45. SAVE CLOSING FOR CLOSING • DON'T ASK THE Q TOO MANY • STOP IF YOU FEEL A "SO", "Therefore", "AHA" • CREATE THE PICTURE AND THEN STOP • WITNESS WILL NEVER AGREE WITH THE CONCLUSION

  46. ENEMY WORDS • WHO • WHAT • WHEN • WHERE • HOW • WHY • EXPLAIN • DESCRIBE • DID YOU/WERE YOU

  47. BORROW LEWIS’S BULLET PROOF VESTPRECISION = CONTROL • Avoid Characterizations/subjective Conclusions • “He Cooperated” Vs • “You Said Stop, He Stopped • Hands in air.. • Name, true name”, etc • Babystep So We See It • Avoid Adverbs • “He Immediately Stopped” • Exception: Where Witness Has Used That Word

  48. LOOP FOR EMPHASIS

  49. LANGUAGE OF PERSUASION • USE VIVID WORDS • USE ACTION WORDS • USE POWER WORDS • USE WORDS THAT WILL EVOKE AN EMOTIONAL RESPONSE • DO NOT BUY INTO THEIR LANGUAGE

  50. PERFORMANCE: LET THE STORY FLY • TONE • PACE • PAUSE • LANGUAGE • DEMONSTRATIONS-BODY • DEMONSTRATIVE EVIDENCE