Category Archives: Cross-Examination: Science and Techniques by Pozner & Dodd

Cross-Exam: Chapter 32

How to Master the Techniques Without Trial Experience

1.      Cross-examine inanimate objects to master the 3 Rules of cross-exam.

a.      Leading questions only

b.      One fact at a time

c.       Leading toward a definable goal

 

2.      Cross-exam in the office.

a.      Another person takes on the voice of the inanimate object.

b.      This person plays devil’s advocate and looks for an opportunity to say “no”.

 

3.      Cross-examine Expert and Professional witnesses because they bring to the witness stand the experience and knowledge of how not to answer difficult questions.

 

4.      Train as a witness.

 The exercise of “Cluster Cross”

1.      A participant asks one question, then a rotation begins where the other participants ask one question.

2.      A straight-forward factual situation is recommended so there can be clearly established goals.  Everyone must agree on the goal before the exercise begins in order to know if the goal is being established by the line of questioning.

3.      The instructor (if there is one) and all participants may object.  If the objection is sustained, the participant objected to is removed form the exercise and can come back into the exercise if she makes an objection that is sustained.

If you need an experienced trial attorney contact Ambrose Law Group at (248) 624-5500
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Cross-Exam: Chapter 31

Pre-trial Application

Practice does NOT make perfect because perfection is not possible in trial work.  Fortunately, perfection is not necessary.  Practice allows the trial lawyer to engrain the techniques of cross-examination so that they feel natural. 

Trial is the last place to learn technique.  It is the place to employ a technique previously learned. 

Cross-exam techniques work best when they flow naturally.  The more energy the advocate must spend on remembering the techniques, the less effective the techniques are.  Cross-exam techniques should no be saved just for the tough cross-exams.  They should be used in EVERY cross-exam so the tough ones feel easier.

Cross-examination is the most interactive of the trial phases; and, therefore, requires real-time interaction to properly prepare for trial.  Some valuable learning can be accomplished by watching an experienced trial lawyer exercise her skills, but is not substitute for the highly-interactive process ofcross-exam

Real witnesses do not cooperate; therefore, cross-examination rehearsals must build in a lack of cooperation.  There are more non-cooperating parties involved in cross-exam than any other phase of the trial.  Every player has an agenda.  The practice of cross-exam requires the expectation of things gone wrong.  The lawyer must become accustomed to scenario planning for the problem areas and answers.

Traditional deposition methods employing only open-ended questions do not train well or produce the most usable results.  In order to get the best value out of a deposition, both as a training and trial perpetration tool, it is necessary to abandon the notion the depositions are purely discovery devises.  Where possible in depositions, the advocate is advised to establish through leading questions the facts the advocate wished to use at trial.

The science and techniques appropriate for trial are likewise largely appropriate for pre-trial hearings.  While there may be tactical reasons to elect to use open-ended questions in certain pre-trial proceedings, the general theories of teaching do not changes. 

Hours of pre-trial experience using the techniques of cross-examination develop the cross-examiner’s confidence better than moments of trial experience. The pre-trial use of appropriate cross-examination techniques mentally trains and conditions the lawyer to rely upon those techniques as the foundation of the cross-examination.  The same is true with tone of voice, movement, impeachment, and other skills that are designed to have a particular impact on the jury.

As a result of the confident employment of the fundamental techniques of cross-examination, the advocate is rewarded by witnesses who are more under control and juries who are more in tune with the facts that support the advocate’s theory of the case.

Samantha@ambroselawgroup

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Cross-Exam: Chapter 30

Recognizing and Controlling Bait

When the cross-examination is going well for the lawyer, a witness will often search for a way to derail the cross-examiner.  One of the most likely strategies is for the witness to offer bait.

Bait is a partially or fully non-responsive answer to the question.

Bait is designed by the witness to take the cross-examiner out of the current chapter or away from the current fact being discussed and into another area selected by the witness.

THE 4 DIFFERENT TYPES OF BAIT

1.      Intra-Chapter Bait

a.      The witness chooses to jump to the goal fact of the chapter.

b.      If the cross-examiner falls for this type of bait, she has sacrificed a more detailed and precise picture the chapter was designed to teach.

2.      Structure or Chapter Bait

a.      The witness tried to change the subject.

b.      The cross-examiner must resist the temptation to “one up” the witness by attacking the baited chapter and continue in the sequence she has placed her chapter in before trial.

3.      New Bait

a.      The witness adds new facts to a chapter or adds a new chapter by exaggerating or adding facts.

b.      Sometimes the witness could be helping the cross-examiners theory of the case by doing this.  However, the cross-examiner loses nothing and risks nothing by refusing the bait.

4.      New Chapter Bait

a.      Some witnesses, particularly witnesses who are professional witnesses or experts, will offer new chapter bait to lure thecross-examiner with the promise that there are substantial additional facts that will support the theory of the case offered by thecross-examiner.
b.     The cross-examiner mus first complete all chapters originally prepared before trial, then expose these “new” facts were never previously mentioned by the witness, and then refuse the bait to address the new bait with questions.

 Declining bait creates time for cross-examination analysis and a determination whether to re-cross on the limited area offered as bait by the witness.

Samantha@ambroselawgroup.com

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Cross-Exam: Chapter 29

Coping With Objections 

The more the advocate can give context to a chapter, the more the trial court can recognize the importance and relevance of facts to the case being tried.  Objections often stem from the fact that the opponent does not recognize, or does not wish to recognize, the context into which a chapter of material is relevant.  A second area of likely objection is purely technical:  Does the evidence offered comply with the applicable Rules of Evidence?

Objections represent distractions to teaching.

All objections are distractions to the cross-examiner’s efforts to teach her theory of the case, as well as efforts to expose defects in the opponent’s theory of the case.  Distractions are not helpful to the process of teaching the judge and jury, which is the purpose of cross-examination.  However, when the listener becomes irritated by the distraction, the person causing the distraction (the opponent) becomes the object of negative emotion.  These are times to take advantage of the opponent’s overuse or misuse of objections.

Following the only 3 rules of cross-exam eliminates many objections.

COMMON TYPES OF OBJECTIONS

Objections based on “Argumentative”.

Most often made in 2 instances: 

1.      Cross-examiner’s body language, tone, and volume of the questions.

2.      Word selection made by cross-examiner

The cross-examiner should willingly rephrase the question, but not eliminate the word selection.  The cross-examiner should break the word selection down so that it is more clear to the jury that the original word selection was appropriate.

Objections based on “Hearsay”.

It is not difficult to foresee what questions will draw a hearsay objection.  The correct technique to deal with this type of objections is to establish the facts needed to overcome that objections before asking the leading question.

Objections based on “Relevancy”.

The correct technique to use when it is not clear if the question is relevant is to establish context for the evidence in the light of the cross-examiner’s theory of the case.  Seeing a logical relationship will allow the court to deny the objections based on relevancy.

8 Rules To Apply When Objected To

Rule 1:  Be wiling to rephrase objectionable questions.

·         Rather than to fight the objection, the cross-examiner may be better off re-phrasing the question.

·         Willingness to rephrase places the judge in the position of wanting to permit the testimony.

Rule 2:  Acknowledge the correct use of the objection.

·         It is the professional thing to do.

·         It shocks the opponent.

Rule 3:  Baiting the “foundation” objection.

·         Use in the event the cross-examiner has an opponent who attempts to object whenever 
 possible.

·         Use to develop gray areas.

·         The perception is that the cross-examiner is the one trying to move the questioning along, and it is the objecting counsel who is throwing the unnecessary roadblocks to the establishment of the truth.

Rule 4:  Moving it along.

·         If the judge tells you to move it along, it is better to offer to pursue briefly.

·         Cut to the bottom line and leave the area entirely.

·         Those lawyers who police themselves best are least policed by others.

Rule 5:  “Your Honor, I’ll tie it up.”

·         Judges permit lawyers to “tie up evidence”.

·         Lawyers who are skilled in the art of tying up evidence get far more borderline evidence before the jury.

Rule 6:  Tie it up, then go back.

·         If there is reasonable risk that the court has lost patience with the line of inquiry or is on the fence concerning admissibility, cut to the bottom line and establish the goal fact.

·         By establishing a bottom-line point for the court, the lawyer can not safely return to her line of questions, and pick up where the objection first interrupted the chapter.

·         Using this technique, the judge knows that the examiner has returned to where she was interrupted.  More importantly, the jury knows.

·         The opponent will not understand that objections such as this will not distract the cross-examiner.

Rule 7:  Speaking responses – miniature closing arguments.

·         If a speaking response to an objection is permitted by the court, the cross-examiner has the right to tell the judge where the cross-examiner is going with the line of questioning.

·         If not permitted, seek permission to approach the bench.

·         If the objection is that the cross-examiner went into to much detail, the cross-examiner’s response should include a key phrase known to the court as being the standard for cross-examination in that jurisdiction.  For example, “a thorough and sifting cross-examination.”

·         Never push the speaking response further than the cross-examination can establish.

·         Always tie up the response with the theory of the case.

Rule 8:  Dealing with objections designed to assist the witness on cross-examination.

1.      Talking objections that suggests answers to witness.

a.      A cross-examiner, in control, must expose these objections for what they are.

b.      By doing so, the jury is taught that the objection should not have been made.

2.      The favorite suggestion:  “Only if the witness knows.”

a.      This objection was designed to give the witness an “out” before answering.

b.      The witness knows the answer, but doesn’t want to give it; but, the witness must in order to not appear illogical and foolish.

3.      The evading witness:  “I don’t know.”

a.      The witness knows the answer and doesn’t want to give it.

b.      The cross-examiner must avoid permitting the line of questioning to be stopped.

c.       The cross-examiner should go through the line of questioning a second time.

d.      The dodge of “I don’t know” is exposed by carefully building up the known facts to show the obviousness if the desired, but evaded, answer to the original question.

e.      The evidence is highlighted rather than suppressed.

4.      Coping with the objection:  “If he remembers.”

a.      Implicit in every question is a request to relate what is remembered.

b.      Ask questions that use the tag phrase “You remember.”

c.       Work slowly and methodically up through things remembered requiring a “yes” answer, leading to the critical issue that the witness claims he can’t remember.

d.      This will expose the answer of “I don’t remember” as an open and obvious deception.

5.      Coping with the objection:  “The witness already said. . . .”

a.      This type of objection is designed by the opponent to educate the witness under cross-examination as to what story to give.

b.      The opponent either repeats a portion of testimony from direct exam, or a portion already given during cross-exam.

c.       The cross-examiner should:  argue that this was not what was said during earlier testimony or argue that the opponent is improperly making a speaking objection.

6.      Spontaneous looping off the objection

a.      Loop off of the objection itself.

b.      The cross-examiner has expanded her admissible scope of examination.

Samantha@ambroselawgroup.com


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Cross-Examination: Chapter 28

The Crying Witness

The crying witness is a special problem on cross-examinations. The crying witness harms the cross-examiner through his highly emotional demeanor.  The outburst implies that the cross-examination is unfair and the resulting lack of answers to the cross-exam questions posed. The cross-examiner must control his or her own feelings of helplessness caused by the crying witness.  The cross-examiner must re-establish control of the witness because not asking any more questions is not a solution.

Identify Crying Witness Before Trial

Being able to foresee the problem before trial is important and can be done during any pre-trial exposure to witnesses.  During any formal o r informal interviews, the cross-examiner must allow the witnesses to show the natural and emotionally charges positions in their testimony. The cross-examiner should try to gauge how the witness will react emotionally at trial.

What Not To Do

When the crying witness begins, the cross-examiner should initially refrain from offering the witness a break, a tissue, or water.

Seemingly helpful gestures can signal that the witness has a reason to cry.

Yielding to the crying witness transfers control to the witness.

Cross-examiner should not initiate the request for a recess, but should not object if requested by someone else.

The cross-examiner must not avoid the witnesses’ eyes when the witness loks up.  The cross-examiner should remain neutral in appearance.

What To Do

The cross-examiner should consider moving the emotion producing chapter to a different witness, if possible. 

The cross-examiner should slow the pace of the questions to re-establish control.

The cross-examiner should focus the witness on less emotional details.  The more detailed the facts, the more detailed and focused the concentration required of the witness and the witness will be moved away from emotion.

Ask for facts not feelings.

Take the witness out of the mood that provokes the cying.

Distraction As A Method Of Limiting Crying

1.      Identify and avoid the isolated issue likely to cause the crying.

2.      Identify the source of the emotion.

3.      Immediately initiate a chapter out of chronological order to distract the witness from anticipating emotional provoking event.

Hard-Edged Facts

Hard-edged facts are facts that are objectively verifiable and not dependent on the individual witnesses’ subjective interpretation.  When working to suppress emotional breakdowns, it is helpful to require the witness to answer questions based on hard-edged facts.

Hard Edged Facts: 

1.      Dates

2.      Hours/minutes

3.      Distances/measurements

4.      Proper names/titles

5.      Addresses

6.      Defensive/non-inflammatory facts

Specific Techniques To Control Crying

1.      Use exhibits ad demonstrative evidence b/c it requires the witness to have to concentrate to a greater degree.

2.      Impeach the witness.

3.      Cause the witness to focus on sounds – recordings/DVDs, etc.

4.      Make witness move – perform a physical task that seems reasonable in the context of questioning.

5.      Select a tone that diminishes the likelihood of an emotional response.

6.      Use admissions of a party-opponent instead of highly emotional chapters of cross-exam.

It is assumed that the cross-examiner’s theory of the case would be enhanced by deterring the crying witness.  However, there are times that the theory is enhanced by a crying witness.  By reversing the techniques discussed in this chapter, the cross-examiner can cause the witness to cry while still controlling the cross-exam.

Samantha@ambroselawgroup.com

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Cross-Exam: Chapter 27

Examination Without Discovery

The “no-discovery” Witness

The opponent calls a witness and the cross-examiner does not know who the witness is or why this witness is being called.  Either way, thecross-examiner has no pre-trial discovery. 

It is natural to feel frustrated and negative but important to control your emotions because they will only distract from the cross-exam.

The direct-exam should have been in accord with common sense.  The testimony that was not adds to potential cross-exam and the witness loses credibility by giving an illogical answer that is highlighted for the jury during the cross exam.

The Cross-Examiner’s Advantages

1.      The witness does not know the cross-examiner.

a.      The cross-examiner has learned about the witness during the direct.

b.      The witness has no idea what the cross-examiner’s techniques are, so can not be prepared to take control of the story thecross-examiner will tell through the witness.

c.       The cross-examiner can adjust techniques after evaluating the direct exam.

2.      The witness does not see the full scope of the case.

3.      The witness cannot know how their testimony fits in with other witnesses.

No discovery does not automatically mean that there is no information for the case.  The name of the witness allows database discovery.  Also, testimony of the witness can often be anticipated.

Opening Statement

The opposing counsel’s opening statement is an important tool to utilize in a case that does not have discovery.  Opening statement is an opportunity to discover information about the opponent’s theory of the case and identify witnesses.

Opening statement may reveal the facts upon which the opponent’s case in built.

In a case without discovery the attorney must identify why each witness is being called.  It is important to identify the goals of the direct examination in order to cross-exam
Note Taking During Direct-Exam

The cross-examiner does not need to “learn” or take notes on the entire direct-exam, only selective notes are required.  On direct-exam, take notes using the chapter format by keeping one chapter per page.  It is important to actively listen and be selective in what notes to take.

3 Elements of Note Taking During Direct Exam

1.      Focused listening

2.      Selective note taking

3.      Identifying what areas are worth of note taking

Filtered Listening

What to take notes on during direct is based on the concept of “filtered listening”.

1.      The first and most important filter is the cross-examiner’s own theory of the case

2.      The second filter is expressed by this question:  “Does this testimony contain material which can be used to weaken the opponent’s theory of the case?”

Keying-In on Voice Tone

1.      Tone offers clues

2.      The less confident tone as a guide to cross-exam

3.      The confident tone as a guide to cross exam

4.      Taking cues from opposing counsel’s tones

Spotting and Exploiting Gaps in Direct Testimony

Most direct-exams are done in chronological order because it is easier to convey the information and its easier for the witness and jury to follow.  This provides an opportunity for the cross-examiner to find gaps in the theory of the opponent’s case.

6 Gaps to Look For During Direct-Exam

1.      The conspicuously missing event

2.      Lack of details gap

3.      Gaps in timing of questions

4.      Stories told out of order

5.      An illogical stopping point

6.      Covering the entire time, but not the entire story

Sequencing

The most important guideline with the “no discovery” witness is to keep control of the witness during the cross-exam.  It is important to sequence the cross-exam in chapters just as you would for a witness you are prepared for. 

If the cross-examiner has solid chapters on motive, interest, or bias, she should lean toward using them at the start of the cross-exam.

Another way to sequence this type of witness is to marginalize the witness and gain credibility by showing inconsistencies in the testimony.

 

Direct-exam chapters intended for witnesses prepared for can be used for the “no discovery” witness.  The witness can be crossed with chapters consistent with the cross-examiner’s theory of the case.

A useful technique is to take a witness into areas in which the witness is likely to want to answer in a particular way. 

To be thorough, an analysis as to that NOT to cross-exam on must be made. 

Using the knowledge of the case as a whole, the facts, the opponent’s theme, and the testimony of other witnesses, the cross-examiner can successfully handle the surprise of the “no discovery” witness.

Samantha@ambroselawgroup.com
If you have questions about cross-examination visit our website www.thetrialprofessor.com      
Watch Dan perform cross-exams in a CSC case, Assault, Drunk Driving and CPS case   

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Cross-Examination: Chapter 26

Loops, Double Loops, and Spontaneous Loops

Some witness answers matter more than others and deserve highlighting.  In essence, the lawyer wishes to “plant a flag” on that fact.

The techniques of looping, in all its various forms, are flag-planting techniques designed to call additional attention to a fact of importance.

Unaided by the technique of looping, lawyers often attempt to emphasize words and phrases by re-asking the question or by repeating the answer.  This technique is flawed both legally and ethically.  This undermines the cross-examiner’s personal credibility.

The technique of looping provides a subtle method of adding emphasis without encountering the drawbacks inherent to the “re-asking” method.  It does so by capturing the answer form the witness and reinforcing it rather than questioning it.  It is the repetition of the fact that provides the emphasis.

The goal of the cross-examiner is to loop powerful words and images tied directly to the cross-examiner’s theory of the case.

Looping is a learned skill.  The easiest words to loop are descriptive words, such as adjectives.

Looping helps to label exhibits and eliminates the necessity of the judge or jury to memorize the exhibit number.

If a date of a particular event is important to the theory of the case, then a way to productively label and loop is to refer to the event by its date.

When using loops in the cross examination of an expert, loop conclusionary terms used by the opposing expert and pair them with other facts that contradict the conclusionary term.

The cross-examiner can reverse the ordinary loop process to lock in the cross-examiner’s characterization of the subjective fact.

3 Looping Techniques

1. Simple Loop (prepared before trial)

a. Through a leading question establish the desired fact or phrase.

b. Use the fact or phrase established within the body of the next question, but without re-asking the fact; and,

c. Connect the looped fact or phrase with a question that contains an undisputed fact.  Attach the looped fact to a safe fact in the second questions.

2. Double Loop (prepared before trial)

a. Establish first desired significant fact.

b. Establish second desired significant fact.

c. Loop both facts together in a third question and later questions.

d. Always tie the double loop to a “safe” undisputed fact.

3. Spontaneous Loop

Use this technique when a witness gives an unexpected answer which has in it a helpful fact that substantially advances the lawyer’s theory of the case.  The witness makes the word choice in front of the jury and judge and can not disclaim it for the rest of the trial.

a. Listen.  Any answer other than a “yes” or “no” may offer an opportunity for the cross-examiner.  Listen with the cross-examiner’s theory of the case in mind.

b. Lift.  Extract any useful word or phrase from the answer.

c. Loop.  Use the helpful fact or phrase in the body of the next question.

d. Tie the spontaneous loop to a safe, undisputed fact.

Samantha@ambroselawgroup.com


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Cross-Exam: Chapter 24, 25

Chapter 23:  Diminishing or Building the Point

While both sides of a lawsuit have strengths and weaknesses, the differences are not measured on an absolute scale, but on the scale of perception.

It is the jury’s determination of the value of a point that determines its weight.

To diminish the importance of a fact, place it at the end of a series of greater non-facts.

To build significance of a fact, place it at the conclusion of a series of lesser facts, all of which were testified to by witnesses.

Many cases are settled under unreasonable terms because of the fear that the trial will result in a worse outcome.  The lawyer who has the ability to build and diminish facts before the trial begins can create more fear.

The facts that should be diminished or built are facts that have the greatest impact on the opposing theories of the case.

Chapter 24:  Juxtaposition

Common sense and common life experiences teach us that people tend to act the same as they have in the past.

Leon Festinger, a leading authority of cognitive development, determined that all learning is the result of contrasting and comparing.

Because people can effectively learn best by contrast, the cross-examiner can use this contrasting technique to vividly illustrate the facts that support her theory of the case or undermine the opponent’s theory of the case.

2 Types of Juxtaposition

1. Event  Juxtaposition

a. Cross-examiner is leading the witness through 2 parallel events

b. A chapter that goes through one event concludes with the witness agreeing with the factual goal of the cross-examiner.

c. In the second chapter, the other parallel event the cross-examiner knows the witness won’t agree with the important facts o the chapter but that the denial of the facts by the witness will make the denial appear to be false.,

2. Double Loop Juxtaposition

a. Cross-examiner is contrasting 2 separate facts in an effort to have the jury conclude that there are good reasons that certain conclusions have been reached by others who did not and could not know all the facts in an entire scenario.

b. The double loop juxtaposition receives all yes answers

c. The facts within the body of the questions are contrasted to show the disparity.

Samantha@ambroselawgroup.com

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Cross-Exam: Chapters 21, 22, 23

Silence can be used to build up  drama.

Take a sip of water or a short silence break to collect thoughts before begin cross

Silence can be used to highlight info that has been just elicited.

Silence may be used to highlight a chapter completed immediately before recess or at the end of an entire cross.

Juries have a difficult time listening to a highly emotional pitch.  Courtroom theatrics are overrated.  Juries like facts.

Quieter is louder in the courtroom.  A lowered voice can intstill far more drama w/far less risk than the same question asked in a very loud and demanding tone.

Emotion must be congruent with purpose.

Voice, body movement, body language, and timing must be appropriate for every examination performed.

To diminish the importance of a fact, place it at the end of a series of greater nonfacts, that is, facts that would be of even greater significance had testimony been offered to support them.

To build the significance of a fact testified to by the witness, begin very generally with what the witness saw, then slowly and thoroughly proceed with more specificity as to what the witness saw.

Samantha@ambroselawgroup.com

To see trial skills in action visit our website www.thetrialprofessor.com

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Cross-Exam: Chapter 16, 8 steps of Impeachment

Eight Steps of Impeachment By Inconsistent Statement

One of the best methods to expose the weaknesses of the opposing party’s witnesses is through impeachment.

There are many forms of impeachments, including bias, interest, prejudice, inconsistencies, and the revelations of omissions and inconsistent statements.

1. Uncover or Find the Inconsistency

a. Look at the depositions

b. Look for signatures on reports and interviews

c. Source the authenticity of the statement

2. Physical Preparation of the Cross-Examination

a. Create a chapter demonstrating that an inconsistency has been developed

b. Then put chapter in proper sequence

c. If impeaching from tapes of DVDs, pre-select the portions you want to use and place them on a separate tape or DVD

d. Regardless of the form in which an inconsistency is found, the exact documentation of the location of each inconsistency is at least as important as the physical comparison of the inconsistency itself.

e. If the cross-examiner cannot find it and prove it, the inconsistency does not exist for the fact finder.

3. Establish the Current Version of the Testimony to be Impeached

a. This is the least difficult step because in almost all cases the current version of an act was established in direct exam or through leading questions.

b. In order to maximize the impact for the upcoming impeachment of the witness, the cross-examiner needs to remind the jury one more time of the current version.  This is the exception to the ordinary rule that the cross-examiner should avoid repeating the harmful portions of the direct testimony.

c. There are two separate techniques for accomplishing this step:  restate the direct testimony or summarize the text to be impeached.

d. Phrases to set up impeachments:  “As I understood, your testimony on direct-exam…your latest thought is… ”; Let me see if I understand this:  Now you are telling this jury that… ”; Let me see if I understand today’s version of events…”

4. Tie the Witness to the Current Version to be Impeached

a. The goal is to teach the jury that the accuracy of the entire story is in question because critical parts of that story have changed.

b. Develop a chapter using facts that indicate the earlier impeaching version is more believable

5. Equate or Translate the Conflicting Versions

a. Equating or translating sometimes requires the cross-examiner to have performed further investigations.

b. A subtle context of equating or translating comes up when a witness has said in a pre-trial statement that the witness “does not know” a particular fact.  The cross-examiner can require that the witness acknowledges that he didn’t know something because the witness was not in a position to know.

6. Expose the Inconsistent Statement

a. If the judge and jury know that the cross-examiner is prepared and consistently questions in a goal-directed manner, they will sense that there is meaning to a repetition of a portion of the direct exam.

b. There are several devises available to signal to the judge and jury that an impeachment by inconsistent statement is about to occur:

i. Silence

ii. Physical movement

iii. Proper foundation laid – there is a difference between a dishonest witness and a witness who is merely mistaken

iv. Have the fact finder visualize the first statement to make the prior statement seem to be more accurate by fully developing the foundation material.

7. Maximize the Damage Caused by the Inconsistency

a. The cross-examiner must prove the reliability of the earlier version just as if the original version was a goal-fact to be established through conventional cross-examination techniques.

b. The cross-examiner must put the fact into its context by beginning at the top of the chapter that established the goal-fact.

8. Listen to the Direct Examination

a. Every time a witness speaks, they have the opportunity to produce inconsistent statements.  This can happen before trial, during direct-exam, and earlier portions of the cross-exam.

b. The cross-examiner should listen not only with her ears, but with her eyes.  Often nonverbal language can uncover an inconstancy

c. Although cross-examination is a science, feeling or instinct should not be abandoned.  The way the cross-examiner feels about the witness after direct-exam may affect how the cross-examiner approaches the cross-examination.

An advanced version of the 8 steps:  The cross-examiner ignores the existence of the version given on direct-examination and begins the cross-exam on the issues as if to establish the earlier version as the only version.  In essence, the cross-examiner proceeds as is there was no new version.  This is accomplished by performing the entire chapter on the point as originally written.  The cross-examiner puts the witness in a position where he must announce the new version, and thereafter be impeached upon it.

Handling of the Documents

Generally, the rules do not require the cross-examiner to hand the documents to the witness and show the witness the exact inconsistency.  However, it is often better practice to do so because it assures the jury that the cross-examiner is being fair in dealing with the witness.  This also permits the witness to react visually to the contradiction in real time.

There can be tactical advantages in requiring a witness to read the inconstant statement; or, on the other hand, the lawyer reading the statement – as the lawyer can control the emphasis, tone, and pace of the statement.  Flexibility is key.  The circumstances and the demeanor of the witness must be factors weighed in making this determination.

 

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Filed under Cross-Examination: Science and Techniques by Pozner & Dodd