Robert McCulloch should be held responsible for using the grand jury to whitewash Darren Wilson

November 26, 2014

Wednesday, November 26, 2014

Good afternoon:

Prosecutor Robert McCulloch’s use of the grand jury to whitewash Officer Daren Wilson’s execution of Michael Brown behind a veil of secrecy is failing miserably and he deserves to bear the consequences for his perversion of justice.

One of the fundamental principles of our system of justice is the right to confront our accusers in a public trial by cross examining them vigorously.

Effective cross examination exposes biases, prejudices and the liars.

Witnesses who testify before a grand jury are rarely cross examined.

Prosecutors and grand juries go together like peanut butter and jelly. Prosecutors point and grand juries accuse.

Here is an example of the tough questions the assistant prosecutor asked Officer Darren Wilson.

Q: Okay, and you say something to them, did they say something to you first?

A: No. You want me to just go with the whole thing?

Q: Sure, go ahead. Let’s start there.

[GJ, Vol.V p. 207]

Go ahead and tell your story, what happened next, and then what did you do? are not are not cross examination.

Here is an example of cross examination.

You just told the members of the grand jury a few minutes ago at Volume V, page 202:

Q: Okay. Did you get any other calls between the time of the sick baby call and your interaction with Michael Brown and Dorian Johnson?

A: While on the sick case call, a call came out for a stealing in progress from the local market on West Florissant, that the suspects traveling toward QT. I didn’t hear the entire call, I was on my portable radio, which isn’t exactly the best. I did hear that a suspect was wearing a black shirt and that a box of Cigarillos was stolen.

Q: And this was your call or you just heard the call?

A: It was not my call. I heard the call.

A: Yes, that is what I said.

Q: And you were under oath when you said that, right?

A: Yes.

Q: And you are as certain about that as you are the rest of your testimony today, is that correct?

A: Yes.

Q: But you told your Sergeant, your direct supervisor, just a few minutes after the shooting that you were not aware of that call and you repeated that to him several times after that during the days after the shooting, didn’t you?

If he admits making the statement, you stare him down until he looks away and then cross your arms and turn your back to the witness for at least 2 minutes until the silence is screaming.

Then you commence the death by a thousand cuts that is the hallmark of every great cross examiner.

If he denies making the statement multiple times to his Sergeant, you put the sergeant on the stand to impeach him.

None of this happened.

And now everyone knows that Robert McCulloch used the grand jury to protect Darren Wilson.

They are marked men. Don’t ever let them forget it.

Gerrie Nel destroys a defense expert and gets him to implicate Oscar Pistorius

April 17, 2014

Thursday, April 17, 2014

Good evening:

In the following exchange regarding the position of the magazine rack in the toilet room where Reeva Steenkamp was shot to death, we are going to see an excellent example of a skilled prosecutor leading a very compliant defense expert witness into a trap and springing it shut.

The position of the magazine rack is important to the outcome of the trial because Oscar Pistorius testified that he fired his gun in response to hearing the magazine rack hitting or being hit by something and he was certain that it was not in the position in which the police claimed to have discovered it when they investigated and photographed the scene. The graphic photo showed the magazine rack next to the toilet bowl on the side opposite the door and positioned at an angle to the wall.

The defense contends that the magazine rack was close to the door when Reeva Steenkamp bumped it while reaching for the handle to open the door.

The prosecution contends that they were having an argument and she locked herself in the bathroom to get away from him. They argue that he fired through the door, killing her as she stood away from the door on the far side of the toilet bowl.

Roger Dixon is the compliant defense expert because Gerrie Nel so thoroughly humiliated him yesterday regarding his lack of integrity that today he was absolutely determined to defend his integrity no matter the cost to Pistorius by insisting that the magazine rack was positioned where the police said they found it. That is, on the other side of the toilet contrary to what Pistorius said.

The exchange begins around the 45 minute mark of Session 1 earlier today.

Nel: Now are you saying that after the wound to the back was sustained on your reconstruction, that the deceased got up again . . . you’re not saying that?

Dixon: The deceased was lifted, up my Lady, by Mr. Pistorius when he took her out of the bathroom. Other than that, I do not believe that she made any more voluntary movements after she fell to the floor.

Nel: On your reconstruction [with glasses twirling], having fallen on the magazine rack, the furthest point of the magazine rack from the toilet, that’s what you said, and that caused the bruise to the buttocks . . .

Dixon: The contusion as Mr. Simmonds said . . .

Nel: Good. And in the same movement, it caused the two contusions on the back, am I correct?

Dixon: That is correct, my Lady.

Nel: And from that position she must have fallen forward toward the toilet bowl . . .

Dixon: That is my interpretation, my Lady.

Nel: Then one would expect the magazine rack to be there?

Dixon: That is so, my Lady.

Nel: The accused said to this court that it definitely wasn’t there. Are you giving a version that is different than the accused version?

Dixon: My Lady, my reconstruction of the events in that toilet is based on the evidence that I can see and measure and has been recorded by other people.

Nel: So what you’re saying, let me just get that . . Whatever the accused is saying, you’re saying he’s wrong.

Dixon: My Lady, I am giving testimony on what I observe and interpret. I am not saying that anyone else is right or wrong.

Nel: Can the accused be right, if you’re right? He said the magazine rack was definitely not there. Then he must be wrong. You’re his witness. What are you saying about that?

Dixon then refers to a photograph of the blood on the floor next to the toilet and shows two marks — one of a dry spot where the blood congealed around one leg of the magazine rack, which was positioned in a pool of her blood next to the toilet bowl on the far side of the toilet from the door, and the second of a bloody smudge on the floor next to the wall after the magazine rack was moved. The photograph contradicts Pistorius’s testimony.

In other words, in a desperate move to salvage his honor, dignity and professional reputation, Dixon used the photograph to drive another nail into Pistorius’s coffin.

I have never seen that done before.

Nel is a master of his craft and if you are at all interested in the art of cross examination, you need to watch him in action.

The trial of Oscar Pistorius resumes on Monday, May 5th.

That is also the scheduled date for the beginning of Michael Dunn’s retrial, although I am still anticipating a defense continuance.

In the meantime, we will check in on the other cases we have been covering and take another look at the Boston Marathon Bomber case.

Please let us know if you have any other cases you would like to see us discuss.

Finally, if you have not already made a donation this month and can afford to make one, please do so.

Thank you, Fred

Zimmerman: Standard Objections on Direct and Cross Examination at Trial

September 24, 2012

Time for a change of pace.

In today’s post, I am going to provide you with a description of direct and cross examination during the prosecutor’s case in chief together with a list of the standard objections that you are likely to hear during the trial. I will cover the defense case in tomorrow’s post.

After opening statements, the prosecution will present its case in chief and rest when it’s done. To survive a defense motion to dismiss after it rests, the prosecution must have presented legally sufficient evidence to support its case.

The legal test for legally sufficient, or substantial evidence as it is called, requires the trial court to assume for purposes of the motion that all of the evidence presented by the prosecution is true.

The trial court must then decide whether that evidence would disprove each element of self-defense and establish each element of M2.

If the answer is yes, the trial court will deny the motion to dismiss.

If the answer is no, it will grant it.

These motions are rarely ever granted. They are routinely made without argument in order to preserve the argument for an appeal. Therefore, do not be surprised by such a defense motion or expect it to be granted.

The prosecution will present its case through the testimony of its witnesses. After a witness is sworn, the prosecutor will question the witness until finished. This is called direct examination.

With rare exceptions, the prosecutor will not be permitted to ask a leading question. A leading question seeks a yes or no answer. For example, the prosecutor might ask, “You saw the defendant straddling Trayvon, didn’t you?

Notice that, in effect, the prosecutor is testifying and the witness is agreeing or disagreeing as the case may be.

If this happens, the defense attorney will object on the ground that the prosecutor is leading the witness. The judge should sustain or grant objections to leading questions on direct examination.

Notice that I qualified the rule when I said, “With rare exceptions, the prosecutor will not be permitted to ask a leading question.” The rare exceptions are set-up questions. For example,

“Mr. Slade, I direct your attention to Sunday evening, February 26th, 2012, between the hours of 7 and 8 pm. You were at home at RATL during that period, weren’t you?

After the witness says, “Yes,” the prosecutor asks another leading question to set the scene.

“Did there come a time when you heard loud voices outside your home?”

After the witness answers “Yes,” the prosecutor switches to a non-leading question like this,

“Please tell the ladies and gentlemen of the jury what you heard.”

The witness then begins narrating his answer.

You may hear the defense attorney object stating,

“I object to the narrative form of the testimony.”

The judge should sustain the objection and ask the prosecutor to pose specific questions

Direct examination usually elicits answers to questions like, who, what, where, and when.

The goal of direct examination is to set the table with leading questions to focus the attention of the witness on a subject, event or document and have them tell their story in their own words with an occasional nudge to keep the testimony focused and on track.

You may hear an occasional objection to the relevancy of a question. Relevance is determined by the matters at issue in a case. The big issue in the case is whether the prosecution can disprove the elements of self-defense and prove the elements of murder 2.

Evidence is relevant if it tends to prove or disprove an element or issue in the case.

Relevant evidence is admissible subject to certain exceptions such as uncharged misconduct, character evidence, prior criminal convictions, and hearsay. I have covered those subjects in previous articles.

When the prosecution completes the direct examination of the witness, the defense attorney has an opportunity to cross examine the witness.

The major difference between direct and cross examination is that leading questions are permissible. In fact, they are not only permissible, they are the preferred way to cross examine a witness.

The ideal cross examination limits the witness to yes or no answers. The defense lawyer knows exactly what information he or she wants to elicit from the witness and if the answer is contrary to the expected answer, the lawyer is ready to impeach the witness to get the expected answer.

The usual way this is accomplished is to confront the witness with a prior inconsistent statement. Here is an example.

Q: Mr. Slade, you testified on direct that the traffic light was red when my client entered the intersection, didn’t you?

A: Yes, I did.

Q: Do you recall when I took your deposition in the prosecutor’s office on June 16th of this year?

A: Yes.

Q: You were under oath, weren’t you?

A: Yes.

Q: The prosecutor was present right?

A: Yes.

Q: Do you recall me asking the following question and you giving the following answer?

Q: You did not actually notice what color the light was when my client entered the intersection, did you?

You answered my question, Yes, didn’t you?

A: Yes.

A skilled cross examiner never asks the witness to explain his answer. Instead, he moves on to the next subject or ends the cross.

A skilled cross examiner never asks a question, if he does not know the answer and he never permits a witness to lapse into a narrative or retell their story.

The scope of cross examination is determined by the subject matter covered on direct. If the defense attorney asks a question regarding subject matter not covered on direct, you will probably hear the prosecutor object that the question exceeds the scope. The judge will sustain those objections.

The prosecutor may question the witness on redirect after the defense attorney is done. You might expect the prosecutor to attempt to rehabilitate his witness in the example just provided. Should he attempt to do so, he will have to do it by asking non-leading questions.

The scope of redirect is determined by the subject matter covered on cross.

Redirect can lead to recross and so on until both parties are finished with the witness.

Tomorrow, we will take a look at the defense case.

The Art of Cross Examination (Part 7) The Killer Cross That Never Happened

December 26, 2011

Author’s Note: This is the final part of the Killer Cross. After the conclusion, I will discuss the real reasons why we believe Chris McNeill refused to use it.

120. Q: Deputy McGuire, I presume you do know the difference between 1 gram and 0.1 grams, don’t you?

A: Yes.

121. Q: When you booked the controlled substance into evidence, you wrote in your report that it weighed 1 gram, didn’t you?

A: Yes.

122. Stricken

123. Q: But the substance weighed by the lab analyst at the Kentucky State Crime Laboratory was only one tenth of a gram, right?

A: Yes.

124. Q: You sent the blood sample to the crime lab for analysis before the preliminary hearing, didn’t you?

A: Yes.

Lab report

125. Q: But you didn’t send the substance that you knew all along was gonna be crack until after the preliminary hearing, right?

A: Yes.

Transcript Preliminary Hearing, page 5, lines 1-5

126. Q: That’s because you knew what it was going to be all along, even though you didn’t know how much it was going to weigh, correct?.

Answer: Yes.

127. Now, I know I’m not your lawyer, so you may want to consult a lawyer, if you don’t already have one and tell her what happened here today. I’m sure she will tell you that the only way to avoid a perjury indictment is to recant your lies and finally tell the truth, but we’ll leave that for another day and another jury.

Author’s Note: I doubt any lawyer would have made the last statement because it is improper. It is not a question and it is argumentative.

What is the significance of the weight difference?

We believe the deputy did not recover a controlled substance from underneath his back seat when he pulled the seat back to search for her watch. Recall that, when they arrived at Lourdes Hospital, she told him that her watch had fallen off her wrist during the ride and she asked him to please retrieve it. I find it impossible to imagine that she would have asked him to retrieve her watch, if it had fallen off her wrist while she was attempting to slough a rock of crack behind the back seat. That would be like asking the deputy to retrieve my watch and, while you’re at it, please pickup my dope. That does not make any sense.

A few months after the arrest, the police officer in charge of the McCracken County Evidence Unit was arrested at a flea market in an adjoining county for attempting to sell a handgun that he had removed from the evidence unit without proper authority. The gun was loaded and the person to whom he was trying to sell it accidentally shot himself. The wound was not serious, however, and he survived.

As I recall, the newly elected sheriff, arranged for an inventory to be made of all of the items in the Evidence Unit by an independent auditor. The final report was disquieting to put it mildly. The unit was not secure. In fact, it was not exclusively used to store evidence with access limited to the people who worked in the unit. That is standard procedure for police departments all over the country. I believe the auditor also reported that a room within the unit was used as a lunchroom by civilian employees and police personnel at the Sheriff’s office. In other words, it was basically an open-air pharmacy with guns, drugs, and money available to anyone who worked at the Sheriff’s office at anytime. The auditor found evidence missing as well as evidence stored in lockers that was not even listed as evidence on the inventory sheets and logs maintained by the unit.

One would have expected a thorough investigation of everyone who worked at the Sheriff’s Department and prosecutions of people who stole stuff, but the only person prosecuted was the boss who attempted to sell the loaded gun. He pled guilty to some relatively minor offense and that was it. The story disappeared.

I googled the story today looking for the name of the officer in charge of the evidence unit and verification of what I recall, but could find no reference to the story, which has apparently been scrubbed. I find that troubling.

We believe Deputy McGuire wanted a notch on his gun, figuratively speaking, and he planned to obtain some heroin in the Evidence Unit by raiding a drug exhibit, but he could not find any and had to settle for crack, which would account for the weight discrepancy (0.1 grams versus 1 gram) and for his delay in sending the rock to the Kentucky State Crime Laboratory for analysis.

We believe he formed this plan on the way to the hospital after the roadside searches failed to turn up any drugs, paraphernalia, or drug residue. He likely seized something like a bread crust, perhaps from something he ate earlier in the front seat of his vehicle before the stop, which occurred at approximately 8:20 PM. Or, maybe he found it under the back seat when he retrieved her watch. Wherever he found it and whatever it was, he probably discarded it after he booked her into jail.

He filled out his narrative report and entered 1 gram as the approximate weight of the suspected controlled substance, intending to later obtain a small amount of heroin in the unit and send it on for analysis to the crime lab. We think it significant that he charged her with possession of a controlled substance without ever specifying what he thought it was in the Uniform Citation or his narrative report.

When I called the court the next day after Crane Station’s arrest, I was told by a court official named Kimberley Thornton that Crane was charged with possession of heroin, tampering with evidence, and DUI. Someone must have told her that Crane was charged with possession of heroin because the drug was not mentioned in the deputy’s paperwork.

I went to the preliminary hearing a week later believing Crane was charged with possession of heroin only to discover that she was charged with possession of crack cocaine.

Deputy McGuire testified at the hearing that the substance was still in the Evidence Unit; that he had field tested it for heroin sometime after the arrest and obtained a negative result; and that he had not field tested it for cocaine because he “knew all along it was gonna be crack.”

How did he know that, unless he already knew for certain what it was because he obtained it from the Evidence Unit after he could not find any heroin?

If he did this, he would have done it several months before the scandal broke about the evidence unit. That did not happen until after the new sheriff was elected and he was elected in November 2006. Crane Station was arrested in late June, 2006.

The purpose of the cross examination was to so utterly destroy Deputy McGuire’s credibility that the jury would believe him capable of almost any misdeed, including perjury and planting evidence. Whether I would have made that argument had I represented Crane Station, which I could not do because I was not admitted to the Kentucky Bar, would have depended on some investigation that had not been done, and receipt of additional discovery that had not been requested, despite my recommendation that it be requested. I may have elected to leave out the specific theory and rely on reasonable doubt based on Deputy McGuire’s shredded credibility.

Whether I would have argued that the deputy was a perjurer who planted evidence or a confused young man with an extremely poor memory such that he was incapable of establishing anything beyond a reasonable doubt is unclear, although I would have been sorely tempted to go for the hard approach.

Finally, in the spirit of fairness, I must point out that I neglected to include a series of questions in the cross about the deputy’s testimony at the preliminary hearing when he said the watch and the controlled substance were not in plain view. He testified at the suppression hearing and later aqt the trial that they were in plain view in the seatbelt crack next to where she was sitting. Both statements cannot be true.

I drafted this set of questions by hand over a period of two to three hours and simply forgot to include them, but I do recall telling McNeill that they should be included.

Now, why did Chris McNeill throw the case by refusing to use this devastating cross?

We do not believe he was telling us the truth when he said the jury would get angry if he used the cross examination since Deputy McGuire was young and innocent. We have come up with three possible reasons.

1. He is the regional chief of the public defenders office for a multi-county area in western Kentucky. In order to protect his budget, he has to assist in keeping the railroad running on time. Therefore, he has a strong interest in not ruffling anyone’s feathers and that means not fighting too hard in some cases. This is a built-in conflict of interest and I don’t think any lawyer in his position should be trying cases. Besides, running the office is a full time job.

2. He wanted to be appointed by the governor to replace a retiring circuit court judge, so taking on the corrupt legal system in western Kentucky was the last thing on his agenda. He didn’t get the job, btw. The chief prosecutor did.

3. He doesn’t have the stones to go to war. He is too timid to take on corrupt cops, prosecutors, and judges. He also lacks integrity. He is not a stand-up guy. Anyone who is too timid and dishonest to fight for his client does not have the right stuff to be a criminal defense attorney.

McNeill did not order the preliminary hearing to be a part of the record on appeal and this delayed action by the Court of Appeals for one year. We believe he did that deliberately because that is when Deputy McGuire testified that the watch and the controlled substance were not in plain view and he had to pull back the seat where he found them after she asked him to look under the seat for her watch. We believe he did not want the Court of Appeals to see that transcript, as it would show that he provided ineffective assistance of counsel in violation of her Sixth Amendment right to counsel.

Most people do not realize this, but criminal defense lawyers are our last line of defense and only hope for keeping the system honest. Honest and knowledgeable judges and prosecutors know this to be true and will openly acknowledge it. Corrupt judges and prosecutors hate honest and tough criminal defense attorneys. Ever since Reagan was elected president in 1980 and commenced an undeclared and ever escalating war against them, corruption has been increasing. Now it has reached the point where the criminal justice system is an openly corrupt and stinking sewer in many parts of the country.

The Art of Cross Examination (Part 6) The Killer Cross That Never Happened

December 25, 2011

Author’s note: Welcome back to the Killer Cross. If you are a new reader, or you would like to review the previous three portions of this cross examination, go here for:

Part 1,
Part 2
Part 3

I did not know the answers to questions 106-108, so I left them blank and recommended Mr. McNeill check it out. Crane’s first lawyer, Will Kautz, had asked Deputy McGuire if he would be willing to submit the plastic baggie containing the rock to the crime lab for fingerprint analysis, which he agreed to do. These questions were designed to elicit answers relative to his handling the bag. Crane and I knew her fingerprints would not be on the bag and we figured his fingerprints would be.

We found out at trial that no request was made by McGuire or a prosecutor to check for prints on the bag.

Questions 75-81 were supplied by Crane-Station

75. Q: You previously testified under oath in Mrs. Leatherman’s case that the seatbelt crack where Mrs. Leatherman was seated in the back of your cruiser for transport did not have a seatbelt pulled through, is that correct?

A: Yes.

Transcript Suppression, page 25, lines 22-25

76. Q: So, in your thorough, routine weekend maintenance, you forgot to pull the seatbelt through?

A: Yes.

77. Q: So, Mrs. Leatherman was cuffed behind the back for transport without the benefit of even seatbelt safety, correct?

A: Yes.

78. Q:Are you aware that Kentucky has a seatbelt law?

A: Yes.

79. Q: And, as a trained police officer who has seen any number of traumatic injury accidents, you can surmise that the seatbelt law is in place to prevent injury, permanent disability, or death, correct?

A: Yes.

80. Q: But the benefit of added safety does not apply to your suspects that you handcuff and place in the back seat for transport, correct?

A: Yes.

81. Q: And this ‘oversight’ on your part could place not only you but your entire department, in jeopardy for carrying liability for injuries or deaths that could have been prevented, correct?

A: Yes.

82. Stricken.

83. Q: When you filled out the Uniform Citation, you charged Mrs. Leatherman with possession of a controlled substance, but you did not specify or identify the substance, did you?

A: No, I didn’t.

84. Q: Even though you immediately recognized it as crack, correct?

A: Yes.

Transcript Grand Jury, page 7, line 12

85. Q: Crack is a form of cocaine, isn’t it?

A: Yes.

86. Q: Cocaine comes in another form called powder, right?

A: Yes.

87. Q: And isn’t it generally true that white folks prefer powder cocaine while African Americans prefer crack?

A: Yes.

88. Q: Isn’t it also true that crack is smoked?

A: Yes.

89. Q: Crack is a highly addictive drug, isn’t it?

A: Yes.

90. Q: That’s because crack produces an intense high that only lasts a few minutes, correct?

A: Yes.

91. Q: Coming down from that high is so unpleasant that users refer to it as crashing, isn’t that right?

A: Yes.

92. Q: And one reason why crack is so addictive is that users want to feel good again so they’ll smoke another rock, if it’s available, won’t they?

A: Yes.

93. Q: Most users will smoke up all the crack they have and go look for more as soon as they run out, right?

A: Yes.

94. Q: They will keep smoking it sometimes for several days until they run out and then they might sleep for several days, right?

A: Yes.

95. Q: Crack smokers usually carry a glass pipe and a torch with them so they can smoke crack as soon as they purchase it from their dealer, right?

A: Yes.

96. Q: You and Deputy Walters and Officer Dawes did not find a glass pipe in Mrs. Leatherman’s car or on her person, correct?

A: Yes, you’re right.

97. Q: You, Deputy Walters and Officer Dawes did not find a crack torch in her vehicle or on her person, correct?

A: Yes, you’re correct.

98. Q: And the three of you did not find any residue of smoke crack in her vehicle or on her person, right?

A: Correct.

99. Q: It’s not unusual for crack users to have burned lips, right?

A: Correct.

100. Q: It’s not unusual for crack users to have burned fingertips, correct?

A: Correct.

101. Q: And crack users, or people under the influence of crack will have dilated pupils, right?

A: Yes.

102. Q: Since you didn’t document that Mrs. Leatherman had dilated pupils, the ladies and gentlemen of the jury can conclude that she did not have dilated pupils, right?

A: Yes.

103. Q: You picked up the suspected controlled substance with your fingers, didn’t you?

A: Yes.

104. Q: You were not wearing gloves, correct?

A: Correct.

105. Q: You wouldn’t want to risk catching a serious life threatening disease such as AIDS or Hepatitis C by coming in contact with a foreign object or substance that might be infected, right?

A: Of course.

106. Q: I noticed on the video that Deputy Walters wore rubber gloves when he searched the trunk of Mrs. Leatherman’s car. Do all deputies carry rubber gloves with them on patrol?


107. Q: Did you have rubber gloves available in your vehicle?


108. What hand did you use to pickup the suspected controlled substance?


109. When you showed it to Mrs. Leatherman, you said, “It sure looks like heroin to me,” didn’t you?

A: Yes.

in dash audio/video

110. Q: She responded that she didn’t know what it was although it looked like some kind of bread crumb, correct?

A: Yes.

in dash audio/video

111. Q: Then she told you to find out what it was by field testing it and sending it to the crime lab for a confirmatory test, right?

A: Yes.

in dash audio/video

112. Q: After you took her to jail, you field tested substance for heroin, right?

A: Yes.

113. Q: Even though you believed it was crack?

A: Yes.

114. Q: The substance tested negative for heroin, right?

A: Yes.

115. Q: But you didn’t field test it to determine if it was crack, did you?

A: No, I did not.

116. Q: And the reason you didn’t is you knew all along it was crack cocaine, right?

A: Yes.

117. Q: If you had any doubt that it was crack, you could have field tested the substance, correct?

A: Yes.

118. Q: You were trained to field test supected controlled substances to eliminate the possibility that a suspected controlled substance is not a controlled substance, right?

A: Yes.

119. Q: Yet, even though you knew it was crack all along, you did not specify in the Uniform Citation that the controlled substance was crack cocaine, correct?

A: Yes.

To be continued . . .

The Art of Cross Examination (Part 5) The Killer Cross That Never Happened

December 24, 2011

Author’s Note: This is a continuation of the Killer Cross that never happened because Crane Station’s lawyer, Chris McNeill, refused to use it. If you have missed the first two parts of the cross, which are in Part 3 and Part 4 of this series, follow the links. I recommend reading them before reading this post, for the sake of continuity.

All rise. Court is again in session.

Good morning, ladies and gentlemen. You may be seated.

Deputy McGuire, you may return to the witness stand. I remind you that you are still under oath.

Counsel, you may proceed with your cross examination.

Thank you, your Honor.

40. Q: On the way to the hospital, you never detected any movement in the back seat that caused you to believe that Mrs. Leatherman was attempting to hide anything, did you?

A: No.

Transcript Suppression, page 24, lines 15-18

41. Q: But you testified under oath to the grand jury that on the way to Lourdes Hospital “Of course, she’s cuffed behind her back, and she is trying to work it — work it down into the seat, and she dropped her watch with it,” didn’t you?

A: Yes.

Transcript Grand Jury, pages 4-5, lines 23-1

42. Q: You didn’t see anything that would suggest she did that, did you?

A: No.

43. You told another lie, didn’t you?

A: Yes.

44. Q: You also testified to the grand jury that the Kentucky State Crime Laboratory result of the alcohol content in Mrs. Leatherman’s blood wasn’t back yet, didn’t you?

A: Yes.

Transcript Grand Jury, page 5, lines 17-18.

45. Q: Please take a look at Defendant’s Exhibit A. It has been identified as a copy of the laboratory analysis of the alcohol content in Mrs. Leatherman’s blood by Examiner Neil K. Vowels. Do you recognize it?

A: Yes.

46. Q: He did not detect any alcohol in her blood, did he?

A: No, he didn’t.

47. Q: Please take a look at the bottom left corner of the exhibit. There is a notation that reads, “Date Completed.” What date appears next to these words?

A: 7/14/2006.

48. Q: You testified before the grand jury on July 28, 2006, didn’t you?

A: Yes.

49. Q: So, you testified 14 days after Examiner Vowels completed his report, correct?

A: Yes.

50. Q: Now take a look at the top line. It indicates that the report was faxed to the prosecutor’s office at 12:32 PM on July 24, 2006, doesn’t it?

A: Yes.

51. Q: That was 4 days before you testified before the grand jury, correct?

A: Yes.

52. Q: Now at the grand jury when the Commonwealth’s Attorney said, “We don’t have the blood results back?” and you answered, “I don’t believe so, blood or lab, yeah,” can you explain why you and the Commonwealth Attorney did not know the result of the alcohol analysis of Mrs. Leatherman’s blood sample — a test completed two weeks before and faxed to the Commonwealth’s Attorney four days before you testified before the grand jury?

A: No.

53. Q: You have testified that Mrs. Leatherman failed all six clues on the HGN test. You did not document the basis for your conclusion in your narrative report, did you?

A: No.

54. Q: We only have your word for that, don’t we? Just as only have your word that she told you that she was on all of her prescription medication?

A: Yes.

55. Q: For the sake of argument, let’s assume you did tell the truth when you testified that she failed all six clues. As a police officer certified to give the HGN test, you must know that NHTSA, the National Highway Traffic and Safety Administration, recommends that the test be administered to a suspect facing away from the police cruiser because the strobing lights will cause a false nystagmus, don’t you?

A: Yes.


Q: Yet, you positioned her facing your strobing police cruiser when you administered the HGN, didn’t you?

A: Yes.

in-dash video

56. Q: Metoprolol is one of the prescription drugs that Mrs. Leatherman had in her car when you pulled her over, correct?

A: Yes.

57. Q: Metoprolol is a drug used to control hypertension, or high blood pressure, correct?

A: Yes.

58. Q: As a police officer certified to administer the HGN test, you know that hypertension can cause nystagmus, don’t you?

A: Yes.

59. Q: You, Deputy Walters, and Officer Dawes thoroughly searched Mrs. Leatherman’s vehicle, including the trunk, her purse, and her personal belongings, correct?

A: Yes.

60. Q: Other than the three prescription drugs, you didn’t find any drugs, drug residue, or paraphernalia, did you?

A: No.

61. And Officer Dawes thoroughly searched Mrs. Leatherman by the side of the road before you placed her in the back seat of your police cruiser, didn’t she?

A: Yes.

62. Q: The search included a visual examination of her genital area, correct?

A: Yes.

63. Q: She also reached into Mrs. Leatherman’s back pockets, correct?

A: Yes.

64. Q: And before the search, you ordered Mrs. Leatherman to empty her front pockets by turning them inside out, didn’t you?

A: Yes.

65. Q: And Officer Dawes checked Mrs. Leatherman’s breasts to see if she might have hidden something in her bra, didn’t she?

A: Yes.

66. Q: She also checked around Mrs. Leatherman’s waist to see if she might have hidden something there, correct? And shoes?

A: Yes.

67. Q: No drugs, drug residue, or paraphernalia were found, right?

A: Correct.

The answers to questions 59-67 can be verified by the in-dash video.

68. Q: You didn’t arrest her for DUI Alcohol, did you?

A: No, I did not arrest her for DUI alcohol.

69. Q: You didn’t arrest her for possession of a controlled substance at that point either, correct?

A: Yes.

70. Q: You arrested her for DUI Drugs, didn’t you?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 4-6.

71. Q: You didn’t advise Mrs. Leatherman that she was under arrest, did you?

A: No, I didn’t.

72. Q: You told her that you were taking her to Lourdes Hospital for a blood test, didn’t you?

A: Yes.

73. Q: A blood test that she offered to take, correct?

A: Yes.

74. Q: You didn’t tell her you were taking her to jail, did you?

A: Correct, I didn’t tell her I was taking her to jail.

Author’s Note: Questions 71-74 set up a point to be made during final argument; namely, that Crane-Station had no reason to attempt to slough a rock of crack behind his seat during the ride to the hospital. Assuming for the sake of argument that she had somehow hidden it so well that Officer Dawes could not find it and, given that we know that Crane-Station knew her blood test would come back negative for alcohol and drugs, we can reasonably conclude that she would have had no reason to think she would be searched again. Therefore, why risk attracting attention attempting to slough drug?

This illustrates another important point about cross examining effectively. Use it to set-up your final arguments during summation.

Judge: Excuse me Counsel. Let’s break for the day. Court will be in recess.

To be continued . . .

The Art of Cross Examination (Part 4) The Killer Cross That Never Happened

December 23, 2011

Author’s Note: This is a continuation of the Killer Cross. If you have not read the first part, please go here to read it, as it is important for the sake of continuity.

Notice that each question is a leading question. That is, the questioner, in this case the defense attorney, makes a statement and asks the witness, Deputy Eddie McGuire of the McCracken County Sheriff’s Department, to agree or disagree with it. With the exception of a few questions to which the answer is common knowledge or otherwise apparent, the statement in each question is a prior statement that the witness made in his report or a prior statement that he made under oath while testifying at the preliminary hearing, grand jury, or suppression hearing.

After the question that contains the witness’s prior statement, I provide an answer that confirms the prior statement that he made. Below the answer in italics, I provide the source for the statement.

For example, in the first question below (#25 in the sequence that started yesterday), Deputy McGuire testified at the preliminary hearing that he pulled Crane Station over because he thought she possibly had some heroin. If he had answered the question below with a “No,” the lawyer would have impeached him with his prior inconsistent statement under oath by following the formula that I presented in Part 2 of this series. Please review that procedure, if you have not read it or are uncertain about it.

As I have said previously, impeachment by prior inconsistent statement is one of the most powerful and effective tools to cross examine and destroy the credibility of a witness and your opponent’s case.

Unfortunately, Crane Station’s lawyer, Chris McNeill, refused to use this cross examination and he lost the case. However, in the strange manner that the universe works, his refusal ended up giving me this opportunity to educate all of you about something only a few of you know anything about, which is the art of cross examination.

In a subsequent post, I will discuss why I think he declined to use it.

I love teaching! and I hope you enjoy reading the Killer Cross that never happened.

All rise. Court is back in session. You may be seated.

25. Deputy McGuire, you pulled Mrs. Leatherman over because you thought she possibly had some heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 14-15

26. Q: You have testified that you thought she possibly had some heroin on her because Mr. Wilkey called 911 and reported that she asked him if he knew where she could purchase some tar heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 7 lines 1-3

27. Q: That’s what you told the members of the grand jury on July 28, 2006, isn’t it?

A: Yes.

Transcript Grand Jury, page 1, lines 17-23

28. Q: The grand jury is a group of citizens who decide whether to indict a suspect whom a law enforcement officer, such as yourself, has arrested for a felony crime, right?

A: Yes.

29. Q: The grand jury decides whether there is probable cause, or reasonable grounds to believe that a suspect has committed a felony crime, correct?

A: Yes.

30. Q: You would agree with me that it is extremely important for a witness testifying before the grand jury to tell the truth, isn’t it?

A: Yes

31. Q: You promised to tell the truth, the whole truth, and nothing but the truth when you testified, didn’t you?

A: Yes.

32. And that is the same promise that you made to this court and this jury today, isn’t it?

A: Yes.

33. Q: Mr. Wilkey told the 911 operator that Mrs. Leatherman had a conversation with his neighbor in the neighbor’s yard in which she “mentioned something about tar heroin and all that stuff,” isn’t that correct?

A: Yes.

Transcript 911 Call, page 2, lines 8-9

34. Mr. Wilkey did not tell the 911 Operator that Mrs. Leatherman asked him if he knew where she could purchase some heroin, did he?

A: No he didn’t.

35. Q: And the 911 Dispatcher did not tell you that Mr. Wilkey had reported that Mrs. Leatherman had asked him if he knew where she could purchase some heroin, did he?

A: No, he didn’t.

Transcript of Dispatcher Tape, page 1. This transcript was first made available by the prosecution during the trial. I did not have it or include a reference to it in my proposed cross. Nevertheless, I included this question because I believed the dispatcher never would have said what the deputy claimed he said in view of what the 911 caller had said. I also knew we could request and obtain a copy of the dispatcher tape and transcribe it before the deputy testified. Both the 911 call and the 911 dispatch could have been played to complete the impeachment.

36. Q: Despite promising to tell the truth to the grand jury, you did not tell the truth when you told the grand jury that Mr. Wilkey called 911 and reported that she asked him where she could buy heroin, correct?

A: Yes.

37. Q: You also told the grand jury under oath that Mrs. Leatherman was “very unsteady on her feet,” when she got out of her vehicle after you stopped her, didn’t you?

A: Yes.

Transcript Grand Jury, page 3, lines 6-7

38. Q: That was a lie too, wasn’t it?

A: Yes.

39. Q: Lying under oath to a grand jury is a felony called perjury that is punishable by up to 5 years in prison, isn’t it?

A: Yes.

Author’s Note: If the deputy said he did not know that what he did was perjury, the lawyer could simply hand him the statute and have him read it out loud. I did not put this in the document that I prepared for Chris McNeill because any lawyer should know this.

This is called playing hardball. I designed this part of the cross to provoke the judge into interrupting and advising the deputy of his Fifth Amendment right to remain silent and refuse to answer on the ground that his answer might have incriminated him. An honest judge also would have offered to recess the trial long enough for the deputy to consult with a lawyer and decide whether to continue answering questions.

At this point, an honorable prosecutor would have, in effect, tossed a white handkerchief over counsel table into the middle of the courtroom as a symbolic gesture of surrender.

None of this happened, however, because Chris McNeill refused to do the cross because, as he put it, “the deputy was a nice young man and the jury would have been offended,” if he used my proposed cross examination.

But, let us continue. Now that we have established that the deputy is a perjurer, let’s take him all the way down. Until tomorrow, Court will be in recess.

To be continued . . .

Cross posted from my law blog.

The Art of Cross Examination (Part 3): The Killer Cross That Never Happened

December 22, 2011

Author’s Note: I have reproduced below the cross examination that I prepared for Crane-Station’s public defender, Chris McNeill. He told me that he decided not to use it because the jury “would be offended.” He said the deputy was “young and innocent and just doing his job.” I will leave it to you to decide if that explanation is credible and reasonable.

Keep in mind, as you read this proposed cross examination, that Rule 3.130(1.1) of the Kentucky Rules of Professional Conduct provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.130(1.3) of the Kentucky Rules of Professional Conduct provides:

(1) A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and
dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the
means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

When a defense lawyer impeaches a critical prosecution witness with a prior inconsistent statement, he can take the soft approach and argue that the prosecution failed to prove its case beyond a reasonable doubt because its witness is not credible.

He can say, for example, “I don’t know whether the witness lied to you under oath or innocently forgot, but there is absolutely no question that his inconsistencies and contradictions add up to a reasonable doubt.”

The hard approach would be to use the dreaded ‘L’ word and argue that there is a reasonable doubt because the deputy is a liar. This approach, particularly when it involves attacking the police, can anger a jury and backfire unless the inconsistencies were egregious.

I have tried it both ways successfully. I opted for the hard approach in my proposed cross, but it easily could have been adapted to the soft approach.

When McNeill made the comment to me about the deputy being young and innocent, I assumed he meant that he would opt for the soft approach. I did not consider the possibility that he was opting for no approach.

When I began to type the proposed cross to reproduce it here, I discovered that it is much too long to enter in one post, so I am going to present it in a series of posts. Each post will deal with a separate topic or set of topics. This post will cover what the deputy witnessed prior to the investigatory stop.

The cross examination is organized in a question-answer format. A reference to the document or transcript containing the deputy’s previous statement is incorporated in a leading question asking for a ‘yes’ or ‘no’ answer with the source of the statement provided below the answer. If the deputy were to give an answer that was inconsistent with his previous statement in the document or transcript, the lawyer would then proceed to impeach him with that statement. I illustrated how to do that in Part 2.

I hope you enjoy the Killer Cross.

1. Q: Whenever you are considering whether to charge a suspect with DUI, you document everything you observe that would be consistent with drug or alcohol impairment, isn’t that correct?

A: Yes.

Source: Transcript Suppression lines 2-6, page 19

2. Q: Staggering or stumbling would be signs of alcohol or drug intoxication, right?

A: Yes.

Q: You did not document any staggering or stumbling in your report, did you?

A: No.

Transcript Suppression, lines 14-17, page 17

3. Q: In fact, you previously testified under oath in this case that Mrs. Leatherman had no problem getting out of her car, didn’t you?

A: Yes.

Transcript Suppression, lines 11-13, page 17.

4. Q: Difficulty producing identification and proof of insurance are signs of alcohol or drug intoxication, aren’t they?

A: Yes.

Q: You did not document in your report in the Uniform Citation that you filled out the night that you arrested her that she had any difficulty producing her identification and proof of insurance, when you asked her to produce them, did you?

A: No.

Uniform Citation

5. Q: In fact, you previously testified under oath in this case that she had no problem producing her identification and proof of insurance, didn’t you?

A: Yes.

Transcript Suppression, lines 18-22, page 15.

6. Q: You did not document that she had any difficulty speaking, did you?

A: No.

Uniform Citation

7. Q: At no time during your encounter with Mrs. Leatherman did she exhibit slurred speech, did she?

A: No.

Q: Slurred speech is another sign of alcohol or drug intoxication, isn’t it?

A: Yes

Transcript Suppression, lines 18-19, page 17.

8. Q: You did not document in your report that Mrs. Leatherman exhibited any sign of mental confusion or disorientation, did you?

A: No.

Uniform Citation

9. Q: In fact, you did not notice any signs of mental confusion or disorientation, did you?

A: No.

Uniform Citation

10. Q: Mental confusion or disorientation is another sign of alcohol or drug intoxication, isn’t it?

A: Yes.

11. Q: An odor of alcohol is another sign of intoxication, isn’t it?

A: Yes.

12. Q: You did not document in your report that you noticed an odor of alcohol emanating from Mrs. Leatherman, did you?

A: No.

13. But you did document that she passed the portable breath test (PBT) ruling out alcohol intoxication at the roadside after you stopped her, didn’t you?

A: Yes.

14. Q: Yet, two weeks later when you testified before the grand jury in this matter, you told them that she stumbled getting out of her car, was very unsteady on her feet, and was smelling of alcohol, didn’t you?

A: Yes

Transcript Grand Jury

15. Q: Inattentive driving is another sign of drug or alcohol intoxication, isn’t it?

A: Yes.

16. Q: You have previously testified under oath in Mrs. Leatherman’s case that you first noticed that her left turn signal was blinking as you passed her, isn’t that correct?

A: Yes.

Transcript Suppression, lines 4-6, page 5.

17. Q: Both of you were approaching the Cairo Road intersection, weren’t you?

A: Yes.

18. Q: The Cairo Road intersection is a traffic light controlled intersection where motorists can turn left or right, isn’t it?

A: Yes.

19. Q: If Mrs. Leatherman had moved into the left lane as you started to pass her, she would have collided with your vehicle, wouldn’t she?

A: Yes.

Transcript Suppression, lines 21-25, page 12.

20. Q: The fact that she did not move into the left lane and collide with your vehicle indicates that she was attentive, doesn’t it?

A: Yes.

Transcript Suppression, lines 21-25, page 12

21. Q: You slowed down and fell in directly behind her as soon as you realized that her vehicle, Washington plates, and the blonde hair matched the description provided by the 911 caller, didn’t you?

A: Yes.

Uniform Citation, Transcript Grand Jury, Suppression Transcript

22. Q: As soon as you fell in behind her, she activated her right-turn signal, moved over onto the shoulder of the road, and slowed down to a stop, correct?

A: Yes.

Transcript Suppression, lines 3-5, page 15.

23. Q: That would be another example of attentive rather than inattentive driving, wouldn’t it?

A: Yes.

24. Q: In conclusion, she was driving appropriately, she wasn’t weaving, and her speed wasn’t a factor when you decided to pull her over, isn’t that correct?

A: Yes.

To be continued . . .

The Art of Cross Examination (Part 2): Impeachment By Prior Inconsistent Statement

December 21, 2011

Please watch the attached clip from Witness For The Prosecution (1957), starring the incomparable Charles Laughton, Marlene Dietrich, and Tyrone Power. Billy Wilder directed the film and wrote the screenplay from a novel by Agatha Christie.

Now back to the real world.

Here is an example of how to effectively impeach a witness with a prior inconsistent statement. This is one of the most effective ways to cross examine a witness. More than once, I have demolished an opponent’s case using this method. It is relative easy to do after you have assembled all of a witnesses’s prior statements, sorted them by topic, and prepared your cross examination. As usual, there is no substitute for hard work and preparation. The end product in court is extremely dramatic, deeply humiliating and disorienting to the dishonest witness, frightening to opposing counsel, and immensely satisfying to the lawyer who pulls it off.

Author’s Note: I never got a witness to say, “Damn you. Damn you,” but I did get a witness to say, “As God is my witness, I am telling the truth,” which is almost as good. She was not as beautiful, elegant, and aristocratic as Marlene Dietrich, but hey, nobody is.

Here, I illustrate the method by using the first question of a lengthy proposed cross examination of Deputy Eddie McGuire of the McCracken County Sheriff’s Department. He arrested Crane-Station and I have previously mentioned him in several posts relative to her case.

I prepared the cross examination for Chris McNeill, the lawyer who represented Crane-Station and I delivered it to him in person the week before the trial. I respectfully asked him to please consider using it.

I said, “I respect you. I am not trying to tell you how to do your job. I love my wife and I am just trying to help out any way that I can. This is one area where I can help because I have a lot of experience in these matters. Please review it and consider using it, or some of it, as you deem appropriate.”

He never used any of it.

He later told me that the deputy was a nice young man and the jury would have been offended, if he used my proposed cross examination. I will leave it for you to decide whether that makes any sense.

Each proposed question is followed by the correct answer with a reference below the answer to the document or transcript in which the deputy made the original statement.

If the deputy gave the wrong answer to any question, the proper way to impeach him would have been to direct his attention to the source document or transcript and confront him with his prior inconsistent statement.

In tomorrow’s post, I will present the entire cross examination that did not happen. It is an engaging and easy-to-follow-story that I believe you will enjoy.

In today’s post, I will present the first question, answer, and reference to the source in order to illustrate how to effectively cross examine a witness by impeaching the witness with a prior inconsistent statement. The procedure is formulaic and would be repeated whenever the deputy gave an answer that was inconsistent with an earlier statement.

Okay, students. With that introduction, let us begin.

Q: Deputy McGuire, whenever you are considering whether to charge a suspect with DUI, you document everything you observe that would be consistent with drug or alcohol impairment, isn’t that correct?

A: Yes.

The proper answer is “yes” because that is the answer that he gave under oath at the suppression hearing. Now, let us suppose that he answered, “No.” This is how you impeach him with his prior inconsistent statement.

May I approach the witness, your Honor?

You may.

You now approach the witness and hand him a copy of the transcript of the suppression hearing that you will use to impeach him and you also hand two copies to the clerk. One is for the court file and the other is a courtesy copy for the judge. On your way back to the podium, you hand the prosecutor a courtesy copy. Resuming your position at the podium, you proceed as follows:

Q: Deputy McGuire, please take a moment to review the document that I just handed to you and let me know when you are ready to answer some questions about it.

A: Okay, I’m ready.

Q: What is the document you are holding, which Madame Clerk has marked as Defendant’s Exhibit 1?

A: It looks like a transcript of the suppression hearing in this case.

Q: Did you testify at that hearing?

A: Yes, I did.

Q: Did you swear to tell the truth, the whole truth, and nothing but the truth, before you testified?

A: Yes.

Q: Did you tell the truth?

A: Of course I did.

Q: Does that document appear to be a true and correct copy of your testimony at the suppression hearing?

A: Appears to be.

Q: Please answer the question “Yes” or “No.” Take all the time you need.

A: Yes, it’s correct.

Q: Thank you. Your Honor, I move Defendant’s Exhibit 1 into evidence for illustrative purposes.

This is the proper way to identify and authenticate an exhibit prior to moving it into evidence. Judges and lawyers call it “laying the foundation.”

Notice how the lawyer firmly, but respectfully refuses to accept the equivocal answer. This is how a lawyer asserts control over a waffling witness.

Exhibits admitted into evidence for illustrative purposes become a part of the official record of the case. They can be used by counsel to illustrate a point, but they do not go into the jury room with the rest of the exhibits during deliberations.

Should a question come up during deliberations, the foreperson can send out a note asking to see a particular exhibit that was admitted for illustrative purposes. If the judge grants the request after conferring with counsel, court will reconvene with counsel and the defendant present. The jury returns to the box and the Clerk shows the exhibit to the jury. The jury then returns to the jury room to continue deliberations and the judge declares a recess pending further notice from the jury that it has another question, or it has reached a verdict.

No talking is permitted while the jury views the exhibit. If the jurors have any questions about the exhibit after viewing it, the foreman has to submit the question(s) in writing after the jury returns to the jury room.

Judge: Mr. Prosecutor, do you have any objection to admitting the exhibit for illustrative purposes?

Prosecutor: No objection, your Honor.

Judge: Very well. Defendant’s Exhibit 1 is admitted for illustrative purposes.

Q: Deputy McGuire, directing your attention to page 19, lines 2-6 of the transcript of the suppression hearing on November 26, 2006, were you asked the following question by defense counsel and did you give the following answer under oath?

Question by defense counsel:

“So, pretty much it’s your practice, if considering DUI, is to document all of those things that would be consistent with drug or alcohol impairment?”

You answered: “Yes.”

A: Uhm, well, Yes, I guess I did.

Q: You answered “Yes,” didn’t you?

A: Yes.

Q: Thank you.

When faced with an equivocating witness, and cops and experts do like to equivocate at times, I often used the technique, which I illustrated here, of repeating the question until the witness answered it. Defensive prosecutors often rise to the bait and attempt to defend their witness by objecting on the basis that the question was “asked and answered.”

I would respond to the objection by stating, “The witness is being evasive. The question calls for a simple “yes,” or “no,” and I intend to keep asking it until he answers it.”

Usually, the judge would turn to the witness and ask him, if he could answer the question “yes,” or “no.” Every time I used this technique and got the judge to intercede, the witness answered “Yes.” Then the judge overruled the prosecutor’s improper objection and allowed me to continue and cement the answer in the jury’s collective memory accompanied by the impression that the cop or the expert was attempting to hide something and the prosecutor was attempting to assist the witness to do it.

Sharp and experienced trial lawyers can devastate their opponent’s case by impeaching their witnesses with prior inconsistent statements.

Until tomorrow then . . .

The Art of Cross-Examination

December 20, 2011

Every good trial lawyer knows how to effectively cross-examine a witness. Unfortunately, very few law schools teach students how to do it, so lawyers usually learn the basics on the job slugging it out in the trenches. That and watching the masters at work is how I learned the craft.

You have to know your case thoroughly and you have to strategize. Sometimes the most effective cross-examination is to rise and say, “I do not have any questions for this witness, your Honor.”

Let us say, for example, that the witness is a nervous and frightened old lady who did not say anything that hurt your client. You might be able to figuratively smack her around on some minor point, but toward what end? The jury would hate you for showing off at her expense. The last thing in the world that you want to do during a jury trial is piss off the jury.

When you decide to cross-examine a witness, you must know exactly what you want to accomplish before you ask a question, and to the maximum extent possible, you must always ask leading questions that can be answered with a simple “yes” or “no.” Never ask open-ended questions that permit a witness to ramble on retelling their story. The jury is more likely to remember what the witness said, if you provide the witness with an opportunity to retell their story.

You cannot get anywhere arguing with or shouting down a witness and calling him a liar. You must always be polite and respectful. Unless the witness is a child, always address the witness formally as Mr., Ms. or Mrs., Dr., Sergeant, Officer, etc. Never address the witness by their first name and always pronounce the person’s name correctly. Remember that you are an officer of the court and comport yourself correctly.

Never ever ask a question, if you do not know what the answer will be. I recall trying a case with a lawyer friend who shall remain nameless. Our respective clients were L.A. gang members (Bloods) indicted in federal court in Tacoma, WA with participating in a multi-state drug conspiracy distributing massive amounts of crack cocaine. In all there were 10 defendants, including our clients.

The government’s case against his client was very weak. Although federal agents arrested his client in the gang’s drug house in Tacoma at the same time they busted the other defendants, the government did not have a witness who could tie him to the gang or implicate him in any drug dealing. They did have a photograph, however, which they seized during a search of the house, in which my friend’s client was flashing gang signs over a pile of money on a table in a kitchen.

The government’s last witness was an FBI agent whom the government called to testify about serving the search warrant and what they found in the residence after they arrested the defendants and searched it. The photograph was one of the last items in a laundry list of evidence that the agents seized. The agent identified it as a photograph of the defendant that he found in the defendant’s backpack. The Assistant U.S. Attorney moved the photograph into evidence and the judge admitted it.

After the Assistant U.S. Attorney concluded the direct examination of the FBI agent without further reference to my friend’s client, I figured his client was home free because the kitchen depicted in the background of the photograph differed significantly from the kitchen depicted in other photographs of the kitchen in the drug house taken by the agents when they raided and searched it. “Not Guilty,” the two sweetest words in the English language, as we defense attorneys used to say, appeared to be the almost certain outcome for my friend’s client, since notwithstanding the gang signs and the pile of money, the government had not presented any evidence regarding when or where the photograph was taken and no witness had ever seen him in the drug house or associating with the defendants who were arrested there.

But it was not to be.

My friend walked over to the lectern, whereupon the following exchange took place,

“Good afternoon, Special Agent Jones.”

“Good afternoon, Counsel.”

“Madame Clerk, would you please hand the witness Government’s Exhibit 1023 A. Thank you.”

Now, Special Agent Jones. I believe you testified on direct that you seized this photograph from my client’s backpack after you arrested him, is that correct?”

“Yes, Sir. Yes, I did.”

“Now, you spent several hours in the house where my client was arrested searching, seizing, and inventorying the evidence that you seized, didn’t you?”

“Yes, sir. I actually spent 3.3 hours there.”

“So you had plenty of time to familiarize yourself with every room in the house, including the kitchen, is that correct?”

“Yes, Sir.”

“And the kitchen depicted in the background of Government’s Exhibit 1023 A is not the same kitchen, is it?”

“Uhm, you’re right. It isn’t the same kitchen.”

“You’re certain about that, aren’t you?”

“Yes, I am.”

“In fact, you don’t know when or where that photograph was taken, do you?”

“Well, Counselor. As a matter of fact, I do.”

May the record reflect that for the next five minutes the back of my friend’s neck turned an ever intensifying red hue as the smiling Special Agent identified the kitchen as a kitchen in the same gang’s drug house that he had searched pursuant to a search warrant in Los Angeles the day before his client was arrested.

Part 2 tomorrow: Cross-examination by prior inconsistent statement.