Apply these proven strategies — excerpted from Relentless Criminal Cross-Examination, by Kevin J. Mahoney – to amp up your cross-examination in your next criminal case:
1. Visit the Scene
It is not enough to review the reports, documents, and transcripts. The detectives and officers expect the defense attorney to have familiarized himself with their reports. In order to thoroughly cross-examine a detective or officer, you must take the time to visit the scene of the crime, the scene of the arrest, or the room in which your client was questioned. Take with you a camera (or, better, a forensic photographer), a tape-measure, and a notebook to draw diagrams and take notes. You may get some of your best ideas for cross-examination as you explore the area and test the representations of the police and/or the witnesses against reality.
2. Categorize the Witnesses, and Plan Your Strategy Accordingly
It is a mistake to assume that every witness, even every policeman or detective, will be difficult to cross-examine. Distinguish between witnesses you want to destroy and those from whom you wish to elicit facts favorable to your client. Once you’ve identified a witness as the recipient of a search and destroy mission, organize your assault.
Classify the areas of cross-examination into three categories: 1) most damaging; 2) moderately damaging; and 3) least damaging. Begin your cross with the most damaging impeachment material in your arsenal. Beat the witness over the head with it, and do it with leading questions. Knock him off balance and never let him regain his footing. Once you have successfully punished the witness with your best stuff, thereby putting him psychologically on the defensive, go after him with your least damaging material. A witness shaken by stage one of the attack may not appreciate that you have moved on to less potent weaponry; to such a witness, and more importantly to the jury, cross-examination may appear as a series of equally crushing blows. By coupling the least damaging material with the most damaging, you will increase the perceived power of your least impressive evidence. Finally, hit the witness with the moderately damaging material. Sandwiching your least impressive cross-examination material between your best and next-best material increases the chances that the jurors will remember the most damaging testimony.
3. Use The Officer’s “Best Efforts” Against Him
No one, police officers included, wants to be perceived as incompetent or as having done a half-baked job. Therefore, whether true or not, nearly every officer or detective will testify on cross-examination that he carefully drafted his report; was under no time pressure; did his best to fairly depict the events; reviewed his report before printing it; and was satisfied that it accurately portrayed the facts. On cross-examination, use this knowledge to prevent the officer from backpedaling from his report in an effort to distance himself from the truth.
4. Ask Questions In The Negative To Get An Admission
When a witness refuses to admit the obvious after you’ve repeatedly questioned him in an affirmative manner (e.g., “The sky was cloudy?”), reverse course and flip the question so that you’re asking him to admit the opposite (e.g., “The sky was clear?”; “Not a cloud in the sky?”; “Never saw a sky so blue?”). Such a question catches the witness off guard, and he’ll likely reverse course and blurt out the admission you were attempting to secure in the first place.
5. Play with the Prosecutor’s Toys
Nothing irritates a prosecutor more than a defense attorney acting as if he had as much right to the evidence or the courtroom equipment (e.g., a projector or evidence blow-ups) as the prosecutor. During your cross-examination, walk over to his table and, without asking permission, rummage through the evidence. Select a piece of evidence and present it to the witness or display it to the jury. That you are invading “his” space, manipulating “his” evidence, and benefiting from “his” equipment will drive the prosecutor to distraction. Moreover, the witness will notice how you exercise control over the entire courtroom, including the space normally reserved for the prosecution. Perhaps most importantly, the jurors will accept that you are the prosecutor’s equal, or even his superior, when you behave that way.
*Kevin J. Mahoney has been defending the rights of the accused for almost 20 years. In Relentless Criminal Cross-Examination, he shares the tips, strategies and techniques he has learned during his years in the trenches.