Cross Examination High Council of Judges and Prosecutors, Republic of Turkey, Study Visit to the Commonwealth of Massachusetts June 25, 2013 Dan Small Holland & Knight dan.small@hklaw.com 23600380.1 Copyright 2013 Holland & Knight LLP All Rights Reserved
Cross-Examination I. Nature II. Purposes III. Methods 2
I. Nature of Cross A. Starting Point Trial: Search for Truth 3
Search for Truth The plain and simple truth is rarely plain and never simple. ~ Oscar Wilde Irish Author, 1895 4
1. Language B. Obstacles to the Search For Truth 2. Assumptions 3. Perspective 4. Dishonesty - The Answer: Ask More Carefully 5
B. Obstacles 1. Language The Twins and the Test 6
B. Obstacles 2. Assumptions Example: If it is written, it must be true. 7
2. Assumptions Document Issues 1. Credibility 2. Language 3. Context 8
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B. Obstacles 3. Perspective Every truth has two sides; It is well to look at both, before we commit ourselves to either ~ Aesop (Ancient Fableist, 620-560 BC) 10
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B. Obstacles 4. Dishonesty Darkness cannot drive out darkness. Only light can do that. ~ Martin Luther King, Jr. 14
Search For Truth From a Picture Look more carefully From a Person Ask more carefully 15
C. Ask More Carefully Trial : act or process of testing, 15 th Century separate out (the good) by examination. From Gallo-Roman triare, 12 th Century -- Etymology Dictionary 16
Opening Statements Prosecution Witness(es) Direct Cross Re-Direct Defense Witness(es) Direct Cross Re-Direct Closing Arguments Judge s Instructions Deliberations and Verdict Common U.S. Trial 17
Direct Examination Ask More Carefully the first examination of a witness by the party calling the witness Webster s Dictionary Cross-Examination the examination of a witness who has already testified in order to check or discredit the witness s testimony, knowledge, or credibility Webster s Dictionary 18
Search for Truth United States Constitution in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. - Confrontation Clause - Sixth Amendment 19
Search for Truth 20
D. Cross Examination Benefits Judges Control Information Perspective Prosecution Information Defense Witnesses Skills Defense Information Testing Skills 21
II. Purposes of Cross A) Bring out helpful facts B) Challenge witness credibility C) Challenge witness testimony 22
Purposes of Cross A) Helpful Testimony 1) Admissions 2) Positives 3) Context 23
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Purposes of Cross B. Challenge Witness Credibility Impeachment: Matters affecting the credibility of the witness. -FRE 611(b) Credibility: The Quality of Being Trusted and Believed In. - Oxford Dictionary 26
B. Challenge Witness Credibility 1) Bias Impeachment Common Types 2) Inconsistent Statements 3) Prior History 27
1) Bias Bias - Predisposition Interest - Relationship Motive - Personal Reasons 28
2) Prior Inconsistent Statements Always tell the truth, It makes it easier to remember, what you said the first time. ~ Mark Twain American Author, 1894 29
INSERT VIDEO - Philadelphia Video 30
2) Prior Inconsistent Statements 3C s Commit - to current statement Credit - the prior statement Confront - with inconsistency 31
3) Prior History Convictions Bad Acts 32
C. Challenge Witness Testimony Common Types 1) Memory 2) Observation 3) Contradictory Facts 33
1) Memory Time Common Event Context 34
2) Observation Capacity Circumstances Understanding Time/Distance 35
INSERT VIDEO - My Cousin Vinny Mrs. Reilly 36
3) Contradictory Facts The light was Green. The light was Red. 37
III. Methods of Cross DO NOT: 1) Repeat 2) Argue 3) Explore 38
III. Methods of Cross Direct Examination Purpose Cross Examination Purpose - Focus on Witness - Focus on Lawyer - Tell Witness Story - Make Cross Points Methods Methods - Open Questions - Closed Questions - Who, What, When, - Leading Why, Where, How - Witness Initiative - Control Witness 39
III. Methods of Cross Purpose: Add, Challenge, Test Method: Leading Questions - Contain Answers Example: Non-Leading: Q: What is the date today? A: I think today is June 23. Leading Q: Today is June 25, isn t that correct? A: Yes. 40
III. Methods of Cross Clear, Simple Statements: 5-7 Words Maximum 1 Fact per Question No Quibble Words Don t ask 1, when you should ask 4 Goals: (1) Yes or No Answers (2) Tell The Story 41
Q&A Story-telling Exercise Favorite Fairy Tale/Children s Story 42
Yes or No? Cross Examination 43
Cross Examination Yes or No? Why Not? Too Long Too Complicated Too Compound Too Vague Too Dependent Too Speculative 44
Irving Younger The Ten Commandments of Cross-Examination 1. Be brief 2. Ask short questions, using plain words. 3. Ask leading questions. 4. Ask only questions to which you already know the answers. 5. Don t let the witness merely repeat his direct testimony. 6. Don t let the witness explain. 7. Listen to the witness s answer. 8. Don t quarrel with the witness. 9. Avoid the one question too many. 10. Save the argument for summation.
II. Purposes of Cross A) Bring out helpful facts B) Challenge witness credibility C) Challenge witness testimony 46
Conclusion [Cross-examination] is beyond any doubt the greatest legal engine ever invented for the discovery of truth.... John H. Wigmore, U.S. Legal Scholar (1904) 47