CROSS EXAMINATION TECHNIQUES BENJAMIN BRAFMAN, Esq. Brafman & Associates, P.C. 767 Third Avenue, 26th Floor New York, New York 10017 Bbrafman@braflaw.com Tel (212) 750-7800
INTRODUCTION THE CROSS-EXAMINATION OF A WITNESS CAN BE A TREACHEROUS, CHALLENGING ADVENTURE FOR EVEN THE MOST SKILLED PRACTITIONER. WHILE EACH CASE AND EACH WITNESS IS DIFFERENT, THIS OUTLINE SETS OUT SOME GENERAL THOUGHTS ON THE SUBJECT AS WELL AS SOME GUIDELINES THAT MAY HELP REDUCE THE RISKS INVOLVED AND WILL HOPEFULLY ALLOW FOR THE DEVELOPMENT OF AN EFFECTIVE CROSS-EXAMINATION. CIVILIZED CROSS-EXAMINATION AS A GENERAL RULE, USING THE WORD CIVILIZED TO DESCRIBE A FORMAT FOR CROSS-EXAMINATION WOULD APPEAR AT FIRST BLUSH TO BE INCONSISTENT WITH THE BASIC PREMISE, THAT IT IS THROUGH CROSS-EXAMINATION THAT THE ADVERSARIAL PROCESS ALLOWS FOR THE TRUTH TO BE DRAGGED FROM THE MOUTH OF AN UNWILLING AND OFTEN HOSTILE WITNESS. WHILE AT TIMES, A TRULY HOSTILE KNOCKDOWN SLUGFEST IS THE ONLY FORM OF EFFECTIVE CROSS-EXAMINATION, MORE OFTEN THAN NOT, A PRECISE, SURGICAL AND EVEN CIVILIZED APPROACH TO CROSS- EXAMINATION CAN BEAR MORE FRUIT AND DO MORE TO ADVANCE THE AREA OF INQUIRY TO BE EXPLORED.
WITH THE BASIC UNDERSTANDING THAT THE FUNDAMENTAL PURPOSE OF CROSS-EXAMINATION IS TO DO NO HARM AND HOPEFULLY ADVANCE THE PROPOSITION BEING SUGGESTED BY THE ATTORNEY UNDERTAKING THE EXAMINATION, WE COME AWAY WITH THE UNDERSTANDING THAT CAREFUL, POINTED QUESTIONING IS GENERALLY THE WAY TO MAKE PROGRESS IF THERE IS PROGRESS TO BE MADE. INDEED, EXPERIENCED CROSS-EXAMINERS RECOGNIZE WHEN A PROPOSED CROSS-EXAMINATION MAY BE WITHOUT PURPOSE DESPITE HOW PERSONALLY SATISFYING THE CONFRONTATION MIGHT BE. ACCORDINGLY, MANY CROSS-EXAMINATIONS ARE NOT UNDERTAKEN AT ALL. WHEN HOWEVER THE CIRCUMSTANCES REQUIRE INQUIRY, HOW THE CROSS IS STRUCTURED IS AS IMPORTANT OR PERHAPS EVEN MORE IMPORTANT THAN THE ISSUES SOUGHT TO BE EXPLORED. THE AFFIRMATIVE CROSS-EXAMINATION IN MANY CASES, SOME WITNESSES CALLED BY OPPOSING COUNSEL OFFER NOTHING CRITICAL ON THEIR DIRECT EXAMINATION AND ACCORDINGLY THEY DO NOT HAVE TO BE UNDERMINED OR ATTACKED. THOSE WITNESSES HOWEVER, MAY NEVERTHELESS POSSESS INFORMATION THAT MAY BE USEFUL IN STRUCTURING PART OF THE DEFENSE OR DEFENSE STRATEGY AND/OR THE WITNESS MAY BE ABLE TO OFFER TESTIMONY THAT CAN BE USED TO UNDERMINE THE CREDIBILITY OF OTHER WITNESSES WHO HAVE ALREADY TESTIFIED, OR WHOSE TESTIMONY IS EXPECTED.
USING THOSE WITNESSES TO HELP YOUR OWN CASE CAN BE VERY EFFECTIVE, BECAUSE IF THE EVIDENCE IS PROVIDED BY AN ADVERSARY WITNESS, IT IS DIFFICULT FOR THAT ADVERSARY TO THEN DISMISS ITS IMPORT. KNOW THE CASE - KNOW THE CLIENT - KNOW THE DEFENSE 1. WHO IS THE CLIENT? 2. WHAT ARE THE CLIENTS BEST AND WORST FEATURES? 3. HOW DOES THE PROSPECTIVE WITNESS HELP EXPLORE THE POSITIVE, OR NEUTRALIZE THE NEGATIVE? 4. ARE THERE PROSPECTIVE DEFENSE WITNESSES WHOSE ANTICIPATED TESTIMONY CAN BE BOLSTERED BY A CAREFUL INQUIRY OF AN ADVERSARY WITNESS? 5. ARE THERE ISSUES IN THE CASE THAT ALLOW FOR A MILD, OR EVEN CASUAL CROSS-EXAMINATION THAT INCORPORATES INTO THE RECORD, A PIECE OF EVIDENCE THAT MAY SUPPORT A DEFENSE POSITION OR AN ACTUAL DEFENSE I.E. SELF-DEFENSE, INSANITY, EXTREME EMOTIONAL DISTURBANCE, ENTRAPMENT, ETC.
WHO IS THE WITNESS? - WHO ARE THE JURORS? - WHAT ARE THE DYNAMICS OF THE CASE? 1. IS THE DEFENDANT MALE OR FEMALE? 2. IS THE DEFENDANT A PERSON OF COLOR? 3. ARE THERE ISSUES IN THE CASE THAT ARE POTENTIALLY VOLATILE THAT YOU MAY WISH TO AVOID OR PERHAPS CAREFULLY EXPLOIT (RACE, POLITICAL-LEANING, HORRIFIC NATURE OF THE CRIME, SYMPATHETIC VICTIM, ETC.) 4. WHAT IS THE COMPOSITION OF YOUR JURY (RACE, SEX, AGE, RELIGIOUS ORIENTATION, POLITICAL LEANING, ECONOMIC-EDUCATIONAL BACKGROUND) EXPLOITING A STRENGTH, WEAKNESS OR DEFECT IN THE CASE AT TIMES A CROSS-EXAMINATION CAN BE STRUCTURED NOT TO DEVELOP A POINT FOR YOUR SIDE, BUT TO UNDERMINE OR NEUTRALIZE A POSITION MAINTAINED BY YOUR ADVERSARY. IS THE WITNESS TO BE EXAMINED SOMEONE WHO WILL NEVER BE MOVED AWAY FROM THE POSITION THEY HAVE ALREADY TAKEN ON A PARTICULAR ISSUE DESPITE SKILLFUL CROSS- EXAMINATION BY AN EXPERIENCED WELL-PREPARED ADVOCATE?
IS THAT WITNESS VULNERABLE TO AN UNSUSPECTING AFFIRMATIVE CROSS-EXAMINATION, WHERE WITHOUT CONFRONTATION, THE WITNESS UNWITTINGLY PROVIDES A KEY PIECE OF EVIDENCE THAT SERVES TO NEUTRALIZE, UNDERMINE OR UTTERLY DESTROY A POSITION TAKEN BY ANOTHER KEY WITNESS ON A CRITICAL ELEMENT OF THE CASE? REMEMBER - CROSS-EXAMINATIONS ARE FACT SPECIFIC WHILE THERE ARE SOME GENERAL RULES THAT ARE TOUTED IN EVERY BASIC CROSS-EXAMINATION LECTURE OR WRITTEN OUTLINE ON THIS SUBJECT, THE KEY TO AN EFFECTIVE CROSS- EXAMINATION IS THE CAREFUL TAILORING OF THE EXAMINATION TO HIGHLIGHT SPECIFIC EVIDENCE IN AN EFFORT TO PROVE OR DISPROVE A FACT UNIQUE TO THE CASE AT HAND. YOU MUST ALSO CAREFULLY CONSIDER THE PERSONAL CHARACTERISTICS OF THE WITNESS TO BE EXAMINED BEFORE THE CROSS-EXAMINATION IS UNDERTAKEN. 1. IS THE WITNESS SYMPATHETIC? 2. IS THE WITNESS EVIL OR DOES HE OR SHE HAVE AN UNSAVORY BACKGROUND? 3. CAN THE WITNESS BE TURNED INTO AN IMPORTANT FACT WITNESS FOR YOUR SIDE?
4. CAN THE WITNESS PROVIDE DAMAGING EVIDENCE AGAINST ANOTHER OF YOUR ADVERSARY S WITNESSES? DO NOT CROSS-EXAMINE A WITNESS WHO DOES NOT NEED TO BE DO NOT AGGRESSIVELY EXAMINE A WITNESS WHOSE TESTIMONY, DEMEANOR AND POSITION IN THE CASE SUGGESTS THAT A CONFRONTATION WILL NOT BE PRODUCTIVE. LISTEN CAREFULLY TO THE DIRECT EXAMINATION. DECIDE BEFORE YOU GET ON YOUR FEET WHAT POINT OR POINTS YOU WISH TO MAKE IF ANY. WHEN YOU MAKE THAT POINT - SIT DOWN. RESIST THE TEMPTATION TO GET UP IN THE FIRST PLACE IF YOU DO NOT HAVE AN INTELLIGENT GAME PLAN IN MIND. CROSS-EXAMINATION OF A COOPERATING WITNESS KNOW THE CASE 1. WILL CROSS OF THIS WITNESS DO MORE HARM THAN GOOD? 2. HOW IMPORTANT IS THE WITNESS? A. DOES THE WITNESS HURT YOUR CLIENT?
B. DOES THE WITNESS SIMPLY GIVE TESTIMONY ABOUT A FACT THAT IS NOT IN DISPUTE? C. IS IT ABSOLUTELY NECESSARY TO CONDUCT A HOSTILE CROSS-EXAMINATION OF THE WITNESS? D. CAN THIS WITNESS BE USED TO HELP YOU WITH AN AFFIRMATIVE DEFENSE [FOR EXAMPLE: SELF DEFENSE, EXTREME EMOTIONAL DISTRESS, ENTRAPMENT, LACK OF CRIMINAL INTENT, ETC...] KNOW THE RELATIONSHIP BETWEEN THE WITNESS AND THE PERSON YOU ARE REPRESENTING 1. WILL YOU BE OPENING DOORS THAT CAN DESTROY ANY HOPE OF SUCCESS AND ESSENTIALLY DO MORE HARM THAN GOOD. EXPLORE THE BENEFITS TO BE DERIVED BY THE WITNESS FROM HIS/ HER COOPERATION 1. IS THERE A SIGNED COOPERATION AGREEMENT, OR DID THE WITNESS RECEIVE IMMUNITY? 2. IS THERE A WAY THROUGH THE CROSS-EXAMINATION OF THE WITNESS TO EDUCATE THE JURY ABOUT THE LENGTH OF THE PRISON SENTENCE THAT MAY BE IMPOSED IN THIS CASE ON YOUR CLIENT, IF THERE IS A CONVICTION?
3. CAN YOU TIE THE INFORMANT TO THE PROSECUTOR IN A WAY THAT UNDERMINES THE CREDIBILITY OF THE PROSECUTION? READ THE COOPERATION AGREEMENT CAREFULLY 1. WHAT OTHER CRIMES DOES IT COVER? ARE THOSE CRIMES FAR WORSE THAN THE CHARGES IN THIS CASE? 3. WHAT DOES THE WITNESS HAVE TO DO UNDER EXPRESS TERMS OF THEIR AGREEMENT? A. TELL THE TRUTH? B. PROVIDE SUBSTANTIAL ASSISTANCE? C. AID IN THE PROSECUTION OF OTHERS? D. COOPERATE PRO-ACTIVELY MAKE CASES- WEAR A WIRE, ETC... ROLE OF PROSECUTOR UNDER THE AGREEMENT 1. DETERMINE TRUTHFULNESS OF WITNESS 2. SIGN OFF ON WHETHER WITNESS GETS 5K1.1 LETTER 3. DETERMINE WHEN WITNESS GETS SENTENCED 4. IS PROSECUTOR MORE IMPORTANT THAN SENTENCING JUDGE
GUIDELINE CROSS OF COOPERATING WITNESSES 1. THE ADVISORY RANGE 2. BOOKER ISSUES (DOES WITNESS UNDERSTAND THAT COURT CAN NOW IGNORE THE GUIDELINES) 3. 3553 Factors 1 4. Shot at Zero Prison DEMONSTRATING THAT A WITNESS DOES NOT REALLY UNDERSTAND THE TERMS OF HIS/HER COOPERATION AGREEMENT CAN BE A VERY EFFECTIVE WAY OF UNDERMINING THE AGREEMENT, RATTLE THE WITNESS AND DEMONSTRATE THAT THEIR AGREEMENT WITH THE GOVERNMENT THAT REQUIRES THE WITNESS TO TELL THE TRUTH IS AN AGREEMENT THAT IS NOT REALLY TRUSTWORTHY- AND AS A PRACTICAL MATTER NOT ENFORCEABLE.
1 WHILE A SENTENCING COURT MUST BEGIN THE PROCESS OF DETERMINING AN APPROPRIATE SENTENCE FOR A CRIMINAL DEFENDANT BY CALCULATING THE APPLICABLE GUIDELINES RANGE, IT SHOULD THEN CONSIDER ALL OF THE 3553(a) FACTORS TO DETERMINE WHETHER THEY SUPPORT THE SENTENCE REQUESTED BY A PARTY. GALL v. UNITED STATES, 128 S. Ct. 586,596 (2007). SECTION 3553(a), AS MODIFIED BY BOOKER, CONTAINS AN OVERARCHING PROVISION INSTRUCTING DISTRICT COURTS TO IMPOSE A SENTENCE SUFFICIENT, BUT NOT GREATER THAN NECESSARY TO ACCOMPLISH THE GOALS OF SENTENCING... KIMBROUGH, 128 S. Ct. AT 570 (CITING GOALS SET FORTH AT 18 U.S.C. 3553 (A)(2)(A)-(D)). SECTION 3553(a) SPECIFICALLY DIRECTS THAT COURTS SHALL IMPOSE A SENTENCE SUFFICIENT, BUT NOT GREATER THAN NECESSARY, TO COMPLY WITH THE PURPOSES SET FORTH IN PARAGRAPH (2) OF [ 3553(a)]. 18 U.S.C. 3553(a) (EMPHASIS ADDED). THE 3553(a) FACTORS INCLUDE (1) THE NATURE AND CIRCUMSTANCES OF THE OFFENSE AND THE HISTORY AND CHARACTERISTICS OF THE DEFENDANT; (2) THE NEED FOR THE SENTENCE IMPOSED: (A) TO REFLECT THE SERIOUSNESS OF THE OFFENSE, TO PROMOTE RESPECT FOR THE LAW, AND TO PROVIDE JUST PUNISHMENT FOR THE OFFENSE; (B) TO AFFORD ADEQUATE DETERRENCE TO CRIMINAL CONDUCT; (C)TO PROTECT THE PUBLIC FROM FURTHER CRIMES OF THE DEFENDANT; AND (D) TO PROVIDE THE DEFENDANT WITH NEEDED EDUCATIONAL OR VOCATIONAL TRAINING, MEDICAL CARE, OR OTHER CORRECTIONAL TREATMENT IN THE MOST EFFECTIVE MANNER; (3) THE KINDS OF SENTENCES AVAILABLE, (4) THE ADVISORY GUIDELINE RANGE; (5) ANY PERTINENT POLICY STATEMENTS ISSUED BY THE SENTENCING COMMISSION; (6) THE NEED TO AVOID UNWARRANTED SENTENCE DISPARITIES; AND (7) THE NEED TO PROVIDE RESTITUTION TO ANY VICTIMS OF THE OFFENSE. 18 U.S.C. 3553(a). SEE BOOKER, 543 U.S. AT 224.