EFFECTIVE CROSS-EXAMINATION TIPS LAWRENCE J. WHITNEY, ATTORNEY AT LAW

Transcription

1 EFFECTIVE CROSS-EXAMINATION TIPS LAWRENCE J. WHITNEY, ATTORNEY AT LAW I. GENERAL REMARKS A. Accountability (Advocate) 1. Just you 2. No one else is there for client - never do or say anything that goes against client s interest 3. Ohio Rules of Professional Conduct 1:3 A lawyer shall act with reasonable diligence and promptness in representing a client. (comment (1) a lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience 4. Oath: I will support the Constitution and the laws of the United States and the Constitution and laws of Ohio and I will abide by the Code of Professional Responsibility.... I will conduct myself with dignity and civility and show respect towards judges, court staff, fellow professionals, and all other persons. I will honestly, faithfully and competently discharge the duties of an attorney at law. (So help me God.) 5. Your own credibility B. Preparation 1. Discovery a. Open file your file should mirror prosecutor s file b. Rule 16 Discovery: c. In camera inspection of witness statements: Upon completion of direct testimony in camera inspection with defense attorney and prosecutor present and participating. If inconsistent, defendants get it and can cross-examination on it. d. Continuing duty to disclose e. Rule 16 discovery is full discovery judges will help enforce rules judges don t like discovery problems 1

2 2. Go to Scene a. Photos b. Measurements c. Charts d. At time of incident e. Google Earth C. Theme of Case 1. After review of discovery and law 2. Mold facts into law use jury instructions; Plan A 3. Must have a Plan B D. Innovation 1. Not absolutely necessary but can be helpful E. You won t convince 12 convince 2 or 4 and these will be your advocates to rest of jury. II. WHAT CROSS-EXAMINATION ISN T A. Summary of direct testimony B. Didn t you testify that C. Emphasize what is not good for your client III. WHAT CROSS-EXAMINATION IS A. Ohio Const. Art. I, 10 In any trial, in any court, the party accused shall be allowed to... demand the nature and cause of the accusation against him... to meet the witness face to face B. Amend VI, U.S. Const In all criminal prosecutions the accused shall... be confronted with the witnesses against him 2

3 C. Webster 1. Demand = ask for boldly or urgently; to ask for as a right or with authority 2. Confront = to face boldly or defiantly D. Evidence R All relevant matters wide open rule 2. Matters offsetting credibility (differ from federal (limited generally to subject of direct) E. Traditionally credibility is attacked by: 1. Prior inconsistent statements R Prior acts R Prior conviction R Character impeachment R Bias R Perceptual incapacity 7. Mental incapacity IV. PHILOSOPHY OF CROSS-EXAMINATION A. Analogy PITCHER LAWYER 1. Must know what his best pitch is 1. Must know his own strengths and research strengths of his own case 2. Must know the weakness of the batter 2. Must know weakness of the state s case analysis and what is needed from each witness to highlight that weakness 3. Must set up his best pitch 3. Must lead the witness to what you want set up to get from him 4. Must execute his best pitch 4. Must properly ask questions (the answer strike out to which he already knows) 3

4 V. RULES OF ENGAGEMENT A. Pick and choose who who does lawyer have to strike out to give his client a chance to win 1. Use common sense; if you don t like a witness or think a witness isn t telling the truth, then the jury probably feels the same way. Don t lose your reasonableness. Reasonable man standard 2. Don t berate or ridicule (unnecessarily) 3. Lawyer can t strike out everybody B. In the set up stage 1. Use then abuse 2. Preclude witness from changing his story lead him 3. Be fluid don t give time to let witness readjust especially professional witness C. In the strike out phase 1. Jury should know this is lawyers best pitch 2. Don t dilute questions this is your best pitch your strike out pitch repeat it, use trinity let the jury know in some way that this is your best pitch; let witness read it; ask him to speak up so jury can hear; show witness physical statement or certified copy of conviction 3. After the strike out sit down and shut up VI. TYPES OF CROSS-EXAMINATION A. Cross-examination of own witness Evid. R. 607 Partial Voucher 1. You may not except you may not cross-examine own witness by use of a prior inconsistent statement except upon a showing of surprise and affirmative damage (state court) 4

5 2. Subpoena source of statement a. After set up and strike out b. You need to establish prior statements by evidence c. Example 3. Make a record (make it a constitutional issue) B. Cross-examination by use of self-contradiction Evid. R Give witness opportunity to explain or deny 2. Subject matter is a fact that is of consequence other than credibility or is a fact that may be shown by extrinsic evidence opinion or reputation (Evid. R.608(A)) a conviction (Evid. R. 609); sensory or mental defect (Evid. R. 616(B)); or a learned treatise (Evid. R. 706) 3. Make a record C. Writing used to refresh memory Evid. R Example 2. Make a record D. Conviction of a crime Evid. R Felony year rule except upon notice and court determination that probative value of conviction outweighs prejudice 3. Dishonesty or false statement regardless of felony or not 4. Certified copy of conviction 5. Make a record E. Prior inconsistent conduct Evid. R. 613(c) 1. Same rules apply as above for prior inconsistent statements 2. Make a record 5

6 F. I don t remember witness Evid. R. 612 Distinguish from past recollection recorded 1. Chose refresh recollection approach or impeachment approach 2. Don t let witness get away with I don t remember G. Extrinsic Evidence 1. Always anticipated 2. Subpoena witnesses; get transcript; excerpts from taped statements; certified copies of conviction; etc. 3. Set up witness for extrinsic evidence 4. Give witness opportunity to explain or deny 5. Importance of discovery 6. Make a record VII. SPECIFIC CROSS-EXAMINATION TIPS A. Experts Evid. R Testimony beyond knowledge or experience of lay person 2. Witness is qualified 3. Testimony based on reliable scientific, technical or other specialized information. If based on procedure, test or experiment, it is reliable if: a. Theory is objectively verifiable b. Design of test implements that theory c. Test conducted in a way that will yield accurate result 4. Self research computer; treatise; medical library; trade journals 5. Get own expert if nothing else, he may be able to help you cross-examine state expert 6

7 6. Use then abuse 7. There is always something you can glean for your client 8. Use of learned treatise Evid. R. 706: if publication relied upon by expert or is established as a reliable authority by that witness or other witness or by judicial notice 9. Set up your expert by your questions of the state expert 10. Use Daubert or motion in limine 11. Get help 12. Review facts that form basis of his opinion (Evid. R. 705); compare facts 13. Gathering transcripts of experts testimony in other cases; view his testimony in other cases B. Eyewitnesses 1. Use of discovery chart consistency with other witnesses physical descriptions, lighting, opportunity to review vantage point distance obstructions 2. Bias 3. OJI (Telfaire) capacity of witness; degree of attention; accuracy of prior description; observations in past; interval of time between event and ID; all surrounding circumstances including deficiencies in line up, photo display or one on one 4. Always compare testimony with other witnesses 5. Expert testimony on eyewitness testimony C. Co-defendant 1. OJI grave suspicion and weighed with great caution 2. Get transcript of plea agreement or plea hearing 3. Get detailed criminal history use this history 4. Bias 5. Consistency with other witness 7

8 6. Good citizen argument VIII. SUMMARY A. Hard work B. Common sense C. Knowledge of law D. Knowledge of facts E. Elimination of problems before trial anticipation motions to suppress; motion in limine; request for specific jury instruction F. Organization 1. Example 2. Trial book 3. Cross-reference witness statements G. Your hard work in cross-examination leads to your final argument 8