CREDIBILITY IN THE CRUCIBLE OF CROSS-EXAMINATION The goal of this presentation is to provide a conceptual frame work for the trial attorney to consult regarding development and delivery of a persuasive crossexamination. All of which follows is a compilation of what I have learned from others. Consequently, I can take no credit for the originality of the contents. Special credit and thanks need to be given to all the members of NACDL, the faculty and participants of the National Criminal Defense College and all of the programs in which I have had the opportunity to participate. Images & Models of Cross-Examination Cross-examination is a real live event. Our ability to anticipate, plan, prepare and practice in advance is crucial to a persuasive presentation. We will be discussing three (3) primary images/models of cross-examination. But, before we can begin to discuss these images or models, there are some basic concepts which must be explored and explained.. A. The Working Definition of Cross-Examination Cross-exam is the presentation of your evidence. Cross-exam is the controlled communication of a focused message. B. The Goals of Cross-Examination Cross-exam is the part of trial and may be the only time/means, for you to get before the jurors facts, inferences and impressions which are necessary to your theory of the case. 1
During cross-examination, you are using the prosecution witness to present those facts and impressions which will lead the jury to conclude facts, inferences and impressions which are necessary to your theory of the case. Create a disconnect between the jury and the witness Create a disconnect between the jury and the prosecution s theory Create a connection between the jury and your theory of the case Convey specific facts Expose character, attitude, bias, etc. of government witness Illustrate theory, theme refrain,proverb, etc. of case C. Types of Cross-Examination Confrontational Informational Combination of both D. Theory of the Case That combination of facts and law which in a common sense and emotional way leads the jury to conclude a fellow citizen is wrongfully accused(or should not be severely punished). -Tony Natale The central theory that organizes all facts, reasons, arguments and furnishes the basic position from which one determines every action in the trial. -Mario Conte A paragraph of one to three sentences which summarizes the facts, emotions and legal basis for the citizen accused s acquittal or conviction on a lesser charge while telling the defenses story of innocence or reduced culpability. -Vince Aprile A theory of the case is client centered and juror driven. Articulated in a 10 words or less headline, saying, question or trilogy. 2
E. Aspects of Persuasion All persuasive presentations (cross-exam, opening, voir dire, closing, etc.) have at least three (3) aspects (whether we like it or know it): Substantive Technical Emotional All three (3) must be in harmony/focus if you are to be persuasive. We must understand and use all three of these aspects to be persuasive. Trial Time Lines SUBSTANTIVE Real [-------------(Bad Stuff)------------------] Pros [ (********BAD * STUFF ********)----] You [----------------(* )-------------------------] bad stuff Subject Matter - What facts/subject areas to address? Is it important to the jury? Is it necessary to our theory of the case? To whom (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? Re-enactments Physical re-enactment Psychological re-enactment Legal re-enactment Points of choice- when the defendant/witness had to make choices Perfect video analysis expected vs. proven Good stuff / Bad stuff Questions to be answered 3
Areas of impeachment Bias, interest, motive, prejudice, corruption, plea deal etc. Prior convictions Prior dishonest conduct Specific contradiction/reality Capacity to perceive, recollect, and communicate Understanding the oath Setting of witness Character Despoliation of evidence Prior inconsistent statements /Facebook,Blogs, etc. CONFRONTING WITNESS WITH PRIOR STATEMENT MUST IT BE A STATEMENT? OF THIS WITNESS? MUST IT BE INCONSISTENT? MUST MEMORY BE EXHAUSTED? IS IT EVIDENCE? MAY THE DOCUMENT BE INTRODUCED? Prior Inconsistent Statement Recorded Recollection Refreshing Recollection 1 YES YES YES NO YES YES 2 3 YES YES NO YES YES NO 4 NO NO NO YES NO NO 1 2 3 4 Yes, for impeachment purposes; may also be substantive evidence under rule 801(d)(1)(a). Must have been made or adopted by the witness. Rule 803(5). May be read into the record, as if it were testimony; the document may not be introduced. Rule 803(5). May be introduced by party refreshing with it; opponent may introduce portions relating to the testimony. Be careful not to refresh with a document you do not want the jury to see. 4
IMPEACHMENT CHART Area of Impeachment Federal Rule Cross- Exam Extrinsic Evidence Allowed Foundation for Extrinsic Evidence Rehabilitation Prior Inconsistent Statement 613 & 801(d) Yes Yes, if not collateral Opportunity of witness to explain or deny Circumstance of giving the statement FRE 106 completeness Bias, Interest, Prejudice, Motive, etc. 607 & 611(b) 404(b); 406 Yes Yes Confront on cross and denial Prior consistent statement; FRE 801(D)(1)(B) Prior Convictions 609 Yes Yes (Limited) Certified record of conviction Circumstances of conviction; Fact of appeal reputation / opinion for honesty Prior Dishonest Conduct 608(b) 405(b) 406 Yes No Circumstances of act, reputation or opinion re: honesty Specific Contradictions 607 611(b) 806 Yes Yes May need to introduce item if more than testimonial Circumstance; lack of importance Capacity of Witness 607 & 611(b) 603 Yes Yes Show reason why not impaired Character Evidence 608(a) 405 No Yes Witness / Declarant to be impeached has testified reputation / opinion Reputation / opinion re: honesty 5
TECHNICAL practice- prepare and present prior to performance -practice Think of yourself as a guide/facilitator to aid and lead the jury s understanding of the theory of the case. Rules of Evidence - Does it get in? How? Short questions One new fact per question Closed ended questions Sequence/order of subjects and each question: I. II. III. IV. Did? Did not? Did? Did not? Did? Did not? Did not? Did? Did? Did not? Did? Did not? Etc. Etc. Etc. Etc. Did not? Did? Did not? Did? Did not? Did? Did? Did not? Did not? Did? Did not? Did? V. VI. Fact/Action? Thought/Feeling? Fact/Action? Thought/Feeling? Fact? Feeling? Thought? Action? Fact? Feeling? VII. You chose...? You decided...?? = declarative statement 6
Pace of questions Using non-verbal cues Misdirection Trilogies Looping Tone of Voice Use of Visual Aids Consistency in form of question Listen, hear, follow-up if helpful theory of the case The headline question: Highlight what is to come. You lie whenthank you it suits your needs? MUST be able to show lie immediately The transitional question: Anchor witness and jury to a particular place and time. Let s talk about the lighting conditions outside of the 7-11 at 10 p.m. on December 13, 2005? The no loose question: There is no answer which can hurt you You wanted to get the most accurate information you could? Develop a flowchart of your questions. Articulate (orally or in writing) the question. What are all the plausible responses to your question? Do you have a way of dealing with every one of these answers from the witness which furthers your theory of the case? If not, the question is inartfully drafted and shouldn t be used. AVOID Long questions Repeating of direct Complex questions Conclusions Oh yeah questions Tell me questions So questions Why questions Repeating of good questions and answers 7
ORGANIZATION A method of analyzing and organizing the facts/areas of our crossexamination in complex multiple witness cases: Step 1 - Chart by sources all facts from all sources (by source). Step 2 - Assign letter for each subject area (chapter). Write on Step 1 charts. Step 3 - Transfer facts/subjects onto new charts by subject area (chapter) with cites from all sources. Step 4 - Number each point (1,2,3,4, etc.) in order of importance on Step 3 chart (subject/chapter). Step 5 - Chart who can give you what - a chart with all witnesses and necessary facts. Fact Witness A B C D E F G H I J Sam X X X X X X Billy X X X Jane X X X Joe X X Cathy X X Jim X X Step 6 - Areas of cross-exam for each witness. A separate chart for each witness with each subject/chapter/fact to be addressed /ranked in order of importance. 8
Introduction / set-up / transition st 1 Subject Transition nd 2 Subject Transition rd 3 Subject Etc. Closing Subject Include Stage Instructions, eg. Look at juror #2, stand by prosecutor Include Cite to: prior inconsistent statements, documents, map/photo, charts. Pick subject/chapter for each witness based on how easy/sure it is that the witness will give you, and the evidence code will allow the admission. EMOTIONAL Your feelings Witness feelings Jury s feelings Which flow from what you re talking about and how we are talking about it. Know what feelings you want to create in jury Use impact words, labels, metaphors, proverbs, nicknames Is your attitude and demeanor appropriate and accepted by the jury Be tuned in to what is going on in the courtroom / be aware of the juror sensibility. Organize subjects for impact. Ex.: A/K/A s Priors Facts of your theory of the case Pics - prior inconsistent statements Bias 9
PRIOR PREPARATION AND PRACTICE PREVENTS POOR PERFORMANCE (My Cousin Vinny- prep segment) Image/Model What it (here cross-exam) looks like when it is working correctly. The assumption is that if you know what it (a cross-examination) should look like and how it (cross-examination) should move, then you can tell if you are assembling, practicing and presenting your cross-exam effectively/persuasively. The following are three (3) primary visual images/models of cross-examination. Each of the following three models/images of cross-exam includes a substantive, technical and emotional aspect. I. Catch what I m saying Technically, the judge and rules of evidence prevent you from talking directly to or, better yet, having a conversation with the jury during cross-examination. You are shooting a fact to the witness which must bounce into the jury box in such a way that the jury can hear, understand and accept (catch). Too big or too many Risk of being misunderstood Too small Too high - over their heads Too low Too fast - can t catch Too slow - doesn t get there Too fancy Too bland Let jury know what is coming (transitions and introductions) Not aimed accurately - bounces back to you Hits judge / rules of evidence Hits friends / foes in gallery, not jury 10
Hits wrong / unintended target All of the above will impede jury understanding and acceptance of your objectives. This image /model shows cross-exam as a real live physical event which you must practice before show time, you must be grooved. Model II. Making your point with dots and pixels Printed photos, TV screen, digital images are made up of dots / points/ pixels Black and white v. color More dots Closer dots Smaller dots The greater the variance in color / tone / texture, the more precise the order in time and place - a sharper more understandable message. The Pointillism (Serat) school of painting: If we are too close, nothing or little is understandable. But, as we move back and think, we gain perspective and context. With perspective and context comes meaning, understanding and acceptance. The preparation and presentation of a cross-examination and/or review of cross-examination is the creation and placing of the dots. (Facts/impressions.) Crossexam is a series/collection of points and impressions which create inferences and conclusions consistent with and in furtherance of the theory of the case. Closing - final context and perspective of those facts, impressions and inferences (dots). 11
This model/image is especially useful with difficult witnesses, and witnesses which can only be impeached by other witnesses. Shape, size, color, texture = plausibility and verisimilitude. (My Cousin Vinny - window cross-examination) Model III Walk this way Begin each chapter/subject with transitional, headline or no loose question. This image/model addresses prior inconsistent statements and other areas/forms of impeachment. (My Cousin Vinny - grits cross-examination ) You must close doors of plausible explanations before witness and/or jury can give a credible explanation. As you go down corridor the context, perception and meaning increases. As the ending becomes clear and inevitable to jury, the more the witness may struggle, and the more damage he does to his credibility. The witness is forced to: 1. Admit mistake or point 2. Lie 3. Not remember 4. Get ridiculous 12
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