ONE-TWO CHA-CHA-CHA A STEP BY STEP METHOD OF CROSS-EXAMINATION & IMPEACHMENT by Fernando Freyre
Philosophy CROSS-EXAMINATION IS NOT AN ART! IT IS A SCIENCE! This means there are steps, systems and techniques that can be learned, practiced and perfected. All you have to do is learn the steps and practice them. It is so simple that I can teach it to you TODAY. It is contrary to what you have been taught. MacCarthy on Cross-examination by, Terence MacCarthy, teaches us 1. look good while 2. telling a story using 3. short statements.
What is your theory of your case? What is your theory of the Witness? Why? To destroy To discredit To get more information To do nothing If it does not help your theory don t do it!!!
THEORY OF THE CASE and THEORY OF THE WITNESS What is my theory of THE CASE? What FACTS can I get from this witness to advance MY THEORY If crossing the witness does not advance my theory then I have NO QUESTIONS!
How does a jury PERCIEVE you? Do you think they like lawyers? Question: What s The difference between a lawyer and a catfish? answer: one is a scum sucking bottom feeder and the other one is a fish.
BE IN CONTROL WITHOUT APPEARING CONTROLING Looking good and telling a story is more persuasive to a jury than appearing, controlling (like MY ex), extracting (like a dentist), or verbally abusive (LIKE MY EX).
WE HAVE TO CHANGE THE WAY WE THINK ABOUT CROSS -EXAM REMEMBER OUR GOAL IS TO PERSUADE. STOP TALKING LIKE A LAWYER. BECOME A COMMUNICATOR. BECOME A STORY TELLER ON CROSS. SELECT THE SCENES (vignettes) WE WANT THE JURY TO VISUALISE AND CREAT A VISUAL IMAGE FOR THE JURY.. INJECT ANY OTHER SENSEs POSSIBLE VISUAL IMAGES, SMELLS, FEELINGS, SOUNDS, WILL HAVE AN EMOTIONAL IMPACT ON JURORS THAT WILL CAUSE THEM TO REMEMBER OUR MESSAGE.
Cross = Mini closing Our goal is to give a mini closing during our cross. We will tell our story using one new fact at a time. The witness is there merely to affirm what we say.
BASIC PRINCIPLES OF THE METHOD Cross examination does not mean examining crossly. Our ultimate goal is to persuade the jury to accept the explanation of the facts as told by us. Cross-exam is always a MONOLOUGE by the lawyer NEVER a DIALOGUE. The witness is basically insignificant.
RULES OF A GUNFIGHT (or a Closing argument) 1. You need a good gun. (argument/conclusions). 2. You need bullets to fire out of the gun. (Facts) 3. The gun has to be able to fire the bullets. (Show how the facts support your conclusions and your theory of the case.) 4. We only get facts from witnesses, Trying to get a conclusion from a witness is like giving him your gun!
How do you do it? Chapter method What am I going to ask? What conclusions do I want the jury to reach about the witness? These will be my chapters for this witness. These chapters are the arguments I will make in my closing. I WILL GET MY BULLETS (FACTS) FROM THE WITNESSES ONE AT A TIME.
Sources of information Prior Statements of the witness. Versimilitude: The way things were or are. What must be The truth. Plausablilty: What a jury believes things were or are. Their truth.
EXperTs Prior statements: Reports - testimony credentials basis of science. Reliability of procedure Learned treatises
Short + Statements= Control Use transitions. Only one new fact at a time. LISTEN TO THE WITNESS LOOP Repeat statements with established facts (OR A CONCLUSION ALREADY MADE BY THE WITNESS) that you want to emphasize with the one new fact of your statement. Get witness in YES mode Descriptive language Hit v. Smash Lengthen a moment in time Trilogies.
transitions Use transitions to begin each chapter This will signal to the jury that you have finished with one point and are moving to another and give them an idea of the reason for the specific questions to follow
The inverted pyramid Set the stage and paint a visual image for the jury one fact at a time Begin with more general questions and then narrow to a specific point
I would now like to talk to you about when you first saw the gun. It was a Sunday night. About 7:15. You were in your front room. You were laying on the couch. About three feet from the front door. You heard the doorbell. You got up. You went to your front door. Your dad was standing behind you. You open the door inward. The man is standing there. Wearing a poncho. A red poncho. You push the screen door open. His left hand comes out from under the poncho. You see a gun in his hand. You lunge for his hand.
I would now like to talk to you about the report you wrote in this case. You have written many reports? You have training in report writing? You have been taught the need to put all the important information in the report? That is how you write your reports? This is information your fellow officers rely on? And IN THIS CASE you wrote a report? You wrote it 20 minutes after the event? You knew it was important to get as much information as you could? Get all the important details? You got all the information you could? You put the important information in the report? YOU DID NOT PUT ANYTHING ABOUT A GUN IN THE REPORT?
Rules of the game YOU are the ONLY story teller. USE only short statements WITH ONLY ONE NEW FACT AT A TIME. USE 1. WORD SELECTION 2. VOICE INFLECTION 3. BODY LANGUAGE 4. POSITIONING 5. Silence 6. NOTES- Never read while talking
ENGAGE YOUR AUDIENCE When we cross-examine a witness we cannot forget our audience. If you are having an interaction with the only, witness you are not communicating with the jury. EYE CONTACT: Begin your statement looking at the witness and end by looking at the jury.
FACTS ARE MORE PERSUASIVE THAN CONCLUSIONS He was not big- he was 6 5 and weighed 325. He was not drunk- he had 5 drinks between 7 and 9; he had not eaten for 7 hours; he is 5 4 and weighs 133 lbs. It was not dark- it was 11 pm.; there was no moon; there was one street light at the intersection; that was the only light at the intersection; the suspect was between you and the light. It was not hot- It was 97 degrees in the shade; there was no wind; it was so bright you had to squint; the sweat was dripping off your hair; it was getting in your eyes; you did not have any spit left in your mouth; you could feel the heat rising out of your collar.
WE ARE ALWAYS TELLING THE JURY OUR STORY Pay attention to the DETAILS and the big picture will take care of itself. ONE NEW FACT AT A TIME NEVER USE CONCLUSIONS EXCEPTION TO RULE: You can use a conclusion if the witness has already used the term.
PRIMACY AND RECENCY People tend to remember the first and last things you tell them. Start and finish with your most important chapters.
Other tools to control the unruly witness. 1. Continue to re-ask the exact question for the witness. (It has been asked but not answered.) 2. Slow the tone and tempo of your voice 3. Use the witnesses name 4. Flip the question to the negative. 5. Turn your back on the witness until they are done rambling and then ask, Now would you answer MY question? Do you remember my question? Can you tell me what my question was? When they cannot, re-ask the exact question.
Impeachment & The use of prior statements
Before confronting with a prior statement First I ask, do I like the new statement better? If I like the new statement better I do nothing
What if the witness does not want to cooperate with me? Sometimes you have to train THE puppy and witnesses are no different. We can control the witness without being controlling. One fact statements equals CONTROL. Compound questions or conclusions result in a LOSS OF CONTROL.
If I don t like the answer We have to train the witness. It is very similar to training a puppy. Rather than using a rolled up newspaper, we use the prior statements of the witness or others. Transcripts Written or recorded statements of the witness Statements of other witnesses
When the witness talks Caca We will fight Caca with caca CONFIRM ACCREDIT CONFRONT Adios
IMPEACHMENT TECHNIQUES (Pozner and Dodd on Crossexamination) Fernando s Favorite Fighting Caca with CACA CONFIRM-ACCREDIT-CONFRONT-ADIOS 1. Confirm the current statement. (QUOTE) 2. Accredit the prior statement and circumstances. 3. Confront with the exact language of the prior statement. (QUOTE) 4. Adios. NOT AHA! SO THAT MEANS
STEPS WITH QUESTIONS 1. CONFIRM: Today you have said quote. 2. ACCREDIT: The (DAY) at (TIME) at (LOCATION) you gave a statement to (WHOM). 2(a) It was the truth. It had just occurred It was fresh in your memory You wanted to help as much as possible You told them all you knew You knew that this was very important information You were as complete as possible You told the TRUTH You swore it was the TRUTH It was the TRUTH 3. CONFRONT: In that statement you said quote. 4. Adios: THANK YOU, NOTHING FURTHER Or YOUR WITNESS
What if the poor witness is mistaken The impression that you want to give, will determine how you will treat the witness. If you like the witness, but he makes an inconsistent statement and you don t like the new statement, you can refresh the memory of the witness rather than impeaching him.
REFRESHING RECOLLECTION WITH EXTRINSIC EVIDENCE Generally used on direct examination. You can use anything to refresh the memory of a witness if the witness says it might help. One of the prior statements of the witness (written, signed, transcript) A statement by someone else A bowl of pasta, a cup of wine and violin music.
WHY HAS THE STATEMENT CHANGED? We only want to get FACTS to use in our closing arguments. NEVER try to get the witness to give you a CONCLUSION. THEY WILL NEVER GIVE IT TO YOU!!!!! FACTS You have spoken to other witnesses You have spoken to the prosecutor You have seen reports in the media You have seen pictures of the suspect You have seen police reports You have seen other information about the suspect CONCLUSIONS You want to appear important You like to be on TV You want to help one of the parties
How do you do it?
CRISS-CROSS CHART 1/1/13 2:30 am 101 8 TH St. off. Joe Bob 1/1/13 3:30 am 101 8 TH St. Writtin Stmt. off. Jim Bob 1/2/13 11:00 am. Police Dept. Det. Gordo 5/1/13 10:00 am. PH County Court; Testimony Direct Cross-examination The car was red (P1/L2) The truck was blue (P1/L4) It was a red car(p4/l12) It was a blue truck (P2/L2) The car was red (P111/L2) The truck was blue (P113/L22) The car was blue (P33/L222) It seemed like the truck ran the red light (P65/L12) The truck was green (P18/L9) The car was blue I saw the truck run the red light The truck was blue The truck was red (P1/L7) Jorge was drinking all night long (P1/L8) The car was red (P2/L4) I did not see the woman (P1/L7) The truck was red (P21/L2) Jorge had about six drinks at the bar (P1/L4) The car was blue (P221/L17) I did not see the woman (P11/L7) The car was blue I saw the woman Jorge was not drunk I don t remember saying or, I never said that I don t remember saying or, I never said that I did not see the woman (P1/L29) Jorge had about six drinks at the bar.(p6/l2) I saw the woman I did not see Jorge I did not see him shoot the gun (P2/L2) I heard the shots and I saw my friend fall (P1/L2) I think he is the one that shot at my friend (P81/L21) I saw him shoot my friend I did not see him shoot the gun He was skinny and tall and he ran away from us very fast (P2/L12). He was about 6 ft. tall and he was skinny and he ran down the alley away from us (.P6/L1) Jorge had about six drinks at the bar.(p6/l2) I heard he was arrested and I saw his photo on the news (P110/L2) I did not see the woman (P1/L29) He was latin american with a beard and a tattoo of tears on his face. (P154/L2) I am sure it is him. I can remember his face. He was skinny and tall and he ran away from us very fast (P2/L12).
IMPEACHMENT WITH PRIOR STATEMENTS 1. Prior inconsistent statement. 2. Prior omission. 3. Prior consistent statement to rebut an implication of recent fabrication. 4. Prior consistent statement without an implication of recent fabrication. 5. Use of extrinsic evidence to prove the prior inconsistent statement. (Written statements/ Transcrips) 6. Use of extrinsic evidence of a prior statement inconsistent with another witness. 7. Prohibited use of extrinsic evidence to prove a prior statement or a statement inconsistent with another witness. 8. Multiple prior inconsistent statements. 9. Suggestive Identification. 10. Omission in current testimony.
1. Prior inconsistent statement 1/1/13 2:30 am 101 8 TH St. off. Joe Bob 1/1/13 3:30 am 101 8 TH St. Writtin Stmt. off. Jim Bob 1/2/13 11:00 am. Police Dept. Det. Gordo 5/1/13 10:00 am. PH County Court; Testimony Direct Cross-examination The car was red (P1/L2) It was a red car (P4/L12) The car was red (P111/ L2) The car was blue (P33/L222) The car was blue
2. Prior omission 1/1/13 2:30 am 101 8 TH St. off. Joe Bob 1/1/13 3:30 am 101 8 TH St. Writtin Stmt. off. Jim Bob 1/2/13 11:00 am. Police Dept. Det. Gordo 5/1/13 10:00 am. PH County Court; Testimony Direct Cross-examination It seemed like the truck ran the red light (P65/L12) I saw the truck run the red light
3. Prior consistent statement to rebut an implication of recent fabrication 1/1/13 2:30 am 101 8 TH St. off. Joe Bob 1/1/13 3:30 am 101 8 TH St. Writtin Stmt. off. Jim Bob 1/2/13 11:00 am. Police Dept. Det. Gordo 5/1/13 10:00 am. PH County Court; Testimony Direct Crossexamination The truck was blue (P1/L4) It was a blue truck (P2/L2) The truck was blue (P113/ L22) The truck was green (P18/L9) The truck was blue I don t remember saying or, I never said that
4. Prior consistent statement without an implication of recent fabrication AKA HEARSAY 1/1/13 2:30 am 101 8 TH St. off. Joe Bob 1/1/13 3:30 am 101 8 TH St. Writtin Stmt. off. Jim Bob I did not see the woman (P1/L7) 1/2/13 11:00 am. Police Dept. Det. Gordo 5/1/13 10:00 am. PH County Court; Testimony I did not see the woman (P11/L7) Direct I never saw the woman Crossexamination
6. Use of extrinsic evidence of a prior statement inconsistent with another witness 1/1/13 2:30 am 101 8 TH St. off. Joe Bob Jorge was drinking all night long (P1/L8) 1/1/13 3:30 am 101 8 TH St. Writtin Stmt. off. Jim Bob 1/2/13 11:00 am. Police Dept. Det. Gordo Jorge had about six drinks at the bar (P1/L4) 5/1/13 10:00 am. PH County Court; Testimony Direct Jorge was not drunk Crossexamination I don t remember saying or, I never said that
YOU CAN BE PROHIBITED FROM PROVING THE PRIOR STATEMENT If the witness does not say that he did not make the prior statement or that he does not remember, IT IS PROHIBITED TO PROVE THE PRIOR STATEMENT WITH EXTRINSIC EVIDENCE. It is also PROHIBITED to prove the prior statement with extrinsic evidence if during crossexam the witness admits to making the prior statement.
7. Prohibited use of extrinsic evidence to prove a prior statement or a statement inconsistent with another witness 1/1/13 2:30 am 101 8 TH St. off. Joe Bob I did not see the woman (P1/L29) 1/1/13 3:30 am 101 8 TH St. Writtin Stmt. off. Jim Bob Jorge had about six drinks at the bar. (P6/L2) 1/2/13 11:00 am. Police Dept. Det. Gordo 5/1/13 10:00 am. PH County Court; Testimony Direct I saw the woman I did not see Jorge drink anything Crossexamination
8. Multiple prior inconsistent statements 1/1/13 2:30 am 101 8 TH St. off. Joe Bob I did not see him shoot the gun (P2/L2) 1/1/13 3:30 am 101 8 TH St. Writtin Stmt. off. Jim Bob I heard the shots and I saw my friend fall (P1/L2) 1/2/13 11:00 am. Police Dept. Det. Gordo I think he is the one that shot at my friend (P81/L21) 5/1/13 10:00 am. PH County Court; Testimony Direct I saw him shoot my friend Crossexamination I did not see him shoot the gun
9. Suggestive Identification 1/1/13 2:30 am 101 8 TH St. off. Joe Bob 1/1/13 3:30 am 101 8 TH St. Writtin Stmt. off. Jim Bob 1/2/13 11:00 am. Police Dept. Det. Gordo 5/1/13 10:00 am. PH County Court; Testimony Direct Crossexamination He was skinny and tall and he ran away from us very fast (P2/L12). He was about 6 ft. tall and he was skinny and he ran down the alley away from us (.P6/L1) I heard he was arrested and I saw his photo on the news (P110/L 2) He was latin american with a beard and a tattoo of tears on his face. (P154/L2) I am sure it is him. I can remember his face. He was skinny and tall and he ran away from us very fast (P2/L12).
10. Omission in current testimony 1/1/13 2:30 am 101 8 TH St. off. Joe Bob 1/1/13 3:30 am 101 8 TH St. Writtin Stmt. off. Jim Bob Jorge had about six drinks at the bar.(p6/l2) 1/2/13 11:00 am. Police Dept. Det. Gordo I did not see the woman (P1/L29) 5/1/13 10:00 am. PH County Court; Testimony Direct Crossexamination
Cross-examination You can t always get what you want, but if you try, sometimes, you just might find you get what you need Mick Jagger
jury s feeling Bc-before cross WITNESS (Poor SOB) Lawyer (Asshole)
Jury s feeling Ad-After done LAWYER (Good Guy) WITNESS (Asshole)
OTHER EXCEPTION STO THE RULES NEVER ASK A QUESTION & NEVER USE CONCLUSIONS Short or Tall: How TALL was the man? 5 8 CLOSE or Far: How FAR AWAY was the car? 8 Big or (Small): How big was the knife? 7
misdirection The three Question Grammar Quiz. Getting the witness to use my language when they don t want to. SEX or MAKE LOVE v. RAPE DANGER: Sometimes the magic works, sometimes it doesn t. Have a SAFE HARBOR!
NEVER EVER BEHAVIOR THE GREETING: Hello Mr. Witness it is so nice of you to be here today. Can I get you some coffee and doughnuts? Would you like Blah, Blah, Blah THE ARGUING: You are not sure who attacked you? Yes I am, it was your client. Well you can t be 100% certain? Yes I can his face is burned into my memory forever. THE ATTACK: You are old aren t you? You don t see as well as you used to? You need glasses? Without your glasses you can t see very well? You did not have your glasses on that night, ISN T THAT RIGHT? Yes, but I only need them for reading. The dialogue: Never answer a question from the witness. Help me your honor: Never ask the judge for help.