CROSS EXAMINATION AND IMPEACHMENT AS PRACTICE TOOLS Traci A. Owens
Using Prosecution Witnesses to tell Our Clients STORIES
The defense often suffers from a witness shortage.
THE PROSECUTOR S FRAILTY IS YOUR STRENGTH CALCRIM 226 (OLD CALJIC 2.20)...In evaluating a witness's testimony,you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony...
FACTORS FOR THE JURY TO CONSIDER How well could the witness see, hear, or otherwise perceive the things about which the witness testified? How well was the witness able to remember and describe what happened? What was the witness's behavior while testifying? Did the witness understand the questions and answer them directly? Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? What was the witness's attitude about the case or about testifying? Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? How reasonable is the testimony when you consider all the other evidence in the case? CALCRIM 226 (OLD CALJIC 2.20)
FACTORS TO CONSIDER cont Did other evidence prove or disprove any fact about which the witness testified? Did the witness admit to being untruthful? What is the witness's character for truthfulness? Has the witness been convicted of a felony? Has the witness engaged in [other] conduct that reflects on his or her believability? CALCRIM 226 (OLD CALJIC 2.20)
USING THE PROSECUTION S CASE Prior inconsistent statements (Under the influence, yet able to understand Miranda) Bias (Prior Contact, and Officer is the victim) Interest in the outcome of the proceeding (Ofc is both CW and Authority) ANYTHING reasonably tied to the accuracy of information- The second officer didn t hear Mr. Cohen. No evidence of assault upon the a police officer 243(b) 243(c)(2)
TRIAL PREPARATION
USE IMPEACHMENT MATERIAL TO TELL THE TRUE STORY * What is this role of this material in my case? * How am I going to prepare for the presentation of this material? * How am I going to time the introduction of the material? * How am I going to control this material? * What am I asking the jury to do with this material?
WHAT SHOULD THE JURY DO WITH THIS? Know what your closing argument will be before you meet your jury. Are you using impeachment material to build your case or to destroy the people s case?
PRIOR INCONSISTENT STATEMENTS AS IMPEACHMENT MATERIAL
THEIR PRIOR INCONSISTENT STATEMENTS CAN TELL YOUR CLIENT S STORY Evidence Code section 1235- Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770. Evidence Code section 770 requires that (1) the witness was examined regarding the statement, and (2) the witness has not been excused from giving further testimony in the action.
Role of a Prior Inconsistent Statement CALCRIM 318 1. To evaluate whether the witness's testimony in court is believable (destroy their case). and/or 2. As evidence that the information in the earlier statement is true (build your case).
PRIOR INCONSISTENT STATEMENT Will I use the prior inconsistent statement as proof that the prior statement is true? OR Will I use it to show that this witness cannot tell the same story twice?
In hypo one the defense is arguing that the real robber is 5 8 to 5 10 with some facial hair. (Statement to Officer Hutch)
PREPARATION Subpoena necessary witnesses (especially if it s a police fficer). Ask the witness about the statement. Comply with Evidence Code section 770.
INTRODUCE AND RELATE TO YOUR WITNESS Voir Dire- Prepare the jury to be on your side. Opening Statement- Give the jury your plan. Cross Examination- Engage in a civilized argument. Hostility is not a requirement. Tailor your style to your theme and your jury.
Discovery and Pretrial Preparation Know the context of the statement so that you cannot be taken by surprise. Know the statement verbatim. Paraphrasing will get you into trouble!
CLOSING INSTRUCT YOUR JURY ON WHAT TO DO WITH THIS MATERIAL.
BIAS
BIAS AS YOUR STAR WITNESS The bias of a witness is subject to exploration at trial and is always relevant as discrediting the witness and affecting the weight of his testimony. Davis v. Alaska, 415 U.S. 308, 316 (1974)
Examples Probation Jealousy Prejudice Attitude toward the Proceeding Plea Agreement
BIAS * Role- prepare your jury to consider the witness bias * Preparation- documentation and in limine motions sanitizing the prior contact (Ofc. admitted that Mr. Cohen looked familiar) * Introduction- timing and phrasing * What am I asking the jury to do with this witness?- closing argument
Examples of Officer Perez s Bias/Inconsistencies Characterizes interaction between suspects as a drug transaction. No Drugs were recovered. (Ofc. Holder) Suspects were talking to people in line at a concert. Characterizes Mr.Cohen as being under the influence of alcohol. Impeach him with the 402 transcript. (If counsel makes the tactical decision to present Mr. Cohen as sober ) Officer Perez claims to have been assaulted. No one put him in immediate fear of a battery. Be prepared to request a jury instruction on assault so that the jury can see that he over reached
Questions for Officer Perez Counsel should give an example of a drug transaction. Didn t see any drugs change hands. Didn t arrest anyone for 11550. Didn t see anyone ingest anything. Officer Perez did not objectively appear to be on duty. (Perez was undercover. Should a reasonable person know that he s on duty? Mr. Cohen asked whether he was on duty.)
Questions for Officer Perez If you make the tactical decision to present Mr. Cohen as sober... Counsel should give an example of under the influence Mr. Cohen was lucid. (If this is consistent with the theory of your case) Mr. Cohen was coherent. (If this is consistent with the theory of your case)
Questions for Officer Perez Officer did not sustain any injury. No one threatened him. No one touched him. No one threatened to touch him. Present officer with the legal definition of assault. It s the officer s duty to know the definition of crimes. Ask for the jury instruction regarding the
Other Forms of Impeachment
PRIOR CONVICTIONS AND ACTS OF MORAL TURPITUDE 788. Prior felony conviction For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony. The felony conviction must involve an act of moral turpitude. Cal Const Art I 28 Misdemeanor convictions themselves are not necessarily admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the court's exercise of discretion. People v. Wheeler (1992) 4 Cal. 4th 284
PRIOR CONVICTIONS AND ACTS OF MORAL TURPITUDE * Role- credibility * Preparation- documentation or stipulation * Introduction- timing * Control - consider whether any of your witnesses have convictions * What am I asking the jury to do with this witness?
Examples
Self Defense Against a Probationer/Felon CW needs your client to be guilty in order to avoid a violation. Prior conviction may in and of itself be impeachment. CW may make statements in police report that are inconsistent with statement to probation officer.
Co-Defendant Testifying in Exchange for a Lighter Sentence Make sure that the jury understands the punishment that the co-d is escaping (bias). The co-d only gets the deal is the DA decides that his/her testimony is satisfactory. (interest in the outcome of the proceeding) Co-d probably made prior inconsistent statements. If there is no prior inconsistent statement, demonstrate the difference between co-d s willingness to commit the crime and sudden willingness to do the right thing.
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