Hit prosecutors with a powerful one-two punch
To many criminal defense attorneys, the trial represents the arena in which they fight every accusation and contest every issue — admit nothing and challenge everything.
Like a boxer who swings at every opening, this approach is exhausting for everyone in the courtroom and rarely succeeds. The jury becomes weary of the repetition, overwhelmed with minutia, and turned off to defense’s closing.
Making his punches count, author Kevin Mahoney (www.relentlessdefense.com) instead uses a winning one-two combination that matches a compelling opening with targeted cross-examinations. He explains and heavily illustrates this courtroom-proven attack in Relentless Criminal Cross-Examination.
First, Mr. Mahoney teaches you how to believably outline in your opening the weaknesses you will expose in the government’s case. Second, he shows you how to demonstrate to the jury, through your cross-examinations, that the facts are more in accord with your opening than with the prosecutor’s.
You will win this battle for credibility with techniques like:
- Using the police report to hog-tie the arresting officer. §1:25
- Spotting the witness who is lying, exaggerating, or omitting important information. §1:47
- Employing the prosecutor’s objections to your advantage. §1:62
- Making the prosecutor pay when he signals a witness. §1:63
- Arranging your stage with a detailed opening. §2:06
- Specifying the inconsistencies you will inquire into. §2:14
- Calling attention to the witness’ demeanor. §2:16
- Planting the seed of suspicion toward the prosecutor. §2:17
- Why you should subpoena additional police witnesses. §3:04
- Attacking the reasons for stopping your client’s vehicle. §3:29
- Focusing on elimination of danger in searches incident to arrest. §3:70
- Demonstrating how the detectives coerced a “confession” from your client. §4:07
- Showing that the detectives needed the confession because the forensic evidence was unknown. §4:12
- Explaining how the detectives isolated and interrogated your client for hours. §4:17
- Detailing how the detectives kept your client from making the phone call he was entitled to. §4:20
- Demonstrating that your client was in custody with a detailed recitation of the surrounding circumstances. §4:20
- Cross-examining the detectives so thoroughly on the written statement that the jury will lose faith in its validity. §4:31
- Tying the accomplice to the crime. §5:01
- Exposing the consummate liar. §5:20
- Shredding the credibility of criminals. §5:30
- Attacking the wealthy co-defendant. §5:39
- Highlighting the motives of prison informants. §5:50
- Contending the witness’ faculties were overcome with emotion. §6:02
- Exposing the witness’ failure to make eye contact with the defendant. §6:04.3
- Locking in an initial faulty description. §6:10
- Attacking photo arrays. §6:30
- Exposing the problems with line-ups. §6:45
- Techniques for making eyewitnesses appear untruthful. §6:55
- Emphasizing the expert was hired after your client was charged. §7:06
- Diffusing the prosecution’s anticipated attack on your expert. §7:12
- Attacking state chemists. §7:26
- Effectively cross-examining medical examiners. §7:40
- Exposing the errors in the accident reconstructionist’s investigation. §7:65
- Explaining the weaknesses in fingerprint matching. §7:90
- Techniques for effectively cross-examining the child victim. §8:06
- Highlighting the failure to inform parents or tell a teacher. §§8:10, §8:15
- Easy ways to undermine the rape victim’s credibility. §8:25
- Detailing the failure to report the attack to police, §8:45, or friends and family. §8:52
- Emphasizing the changing story. §8:60
- Questioning the ambiguous sexual assault exam. §8:81
- Bringing out the possible motives for a false accusation. §§8:96,100, 104, 108
- Stressing the officer’s observations of good driving, §9:01, and the absence of red flags, §9:05
- Countering bloodshot or glassy eyes, §9:10, and the odor of alcohol, §9:15
- Dismantling the horizontal gaze nystagmus test results. §9:20
- Handling heel-to-toe, §9:25, one-leg stand, §9:30, and alphabet tests, §9:35
- Shaking the jury’s confidence in breath test results. §9:55
16 practice tips from the book
- Ask questions in the negative to get 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.” §1:28
- Visit the scene. “When I go to the scene — whether it’s a backyard where a client allegedly detonated a bomb, a street where a client performed field sobriety tests, or a police station interrogation room where a client confessed to murder — I take a forensic photographer, a tape-measure, and a notebook within which to draw diagrams and to make notes. Many of my best ideas for cross-examination come to me as I explore the area and test the representations of the police and/or the witnesses against reality. I notice, perhaps, what the police did not. I note what the police refrained from including in a report. I consider whether the alleged victim’s version makes any sense given the configuration of a room. When I turn over my photos of the area to the prosecutor, I know the prosecutor will pass them along to the witnesses; these witnesses will know that I have been to the scene and if they have lied, they know I know it, and they know I’ve got photographs and a forensic photographer on my witness list. These witnesses will likely try to recast some of their less credible assertions. Armed with knowledge and evidence, I can cross-examine these witnesses with complete confidence.” §1:30
- You are in charge. “From the very beginning, impress the judge that you are not one to be taken lightly. Look him directly in the eyes as you speak to him. Speak decisively and with authority. Ditch the reverential nonsense (“If it please the Court”) and address him as “judge” rather than “Your Honor.” If you need a moment in a courtroom for whatever reason, take the moment. If you want to show a document or a piece of evidence to a witness, grab the evidence (hopefully from the prosecutor’s table) and approach the witness – without asking. If you want to ask some questions on cross-examination that may be objectionable, go ahead and ask them. It takes guts to stand up to a judge.” §1:69
- Attacking the confession. “Few criminal defense attorneys seem willing to challenge written statements, particularly those signed by the client. No doubt, few clients are up to the task of credibly testifying to having signed a confession they knew to be untrue. The detectives, though, can be cross-examined so thoroughly that the jury will lose faith in the validity of the written statement. The client, after all, did not type that statement, did not choose the words used, did not decide what was included and what was excluded, and either did not appreciate the significance of the word choices and omissions or was too resigned and overcome with mental fatigue to challenge the detectives.” §4:30
- Don’t accept, “I can’t speculate.” “Never let the officer get away with saying he can’t speculate on what he would do under the circumstances. You are asking him to speculate only if you ask him what someone else would do under the circumstances. If the officer says he “can’t speculate” as to what he would do “if” such-and-such occurred, ask him what he has done on other occasions under similar circumstances.” §3:31
- Restricting the officer’s testimony. “It is not uncommon for an officer or detective to testify to an important “fact” not included in his report. If questioned on his failure to note the “fact” in his report, an experienced officer will typically shrug it off with, “This is only a summary, Counselor. It doesn’t include every detail or every observation.” If left unchecked, on re-direct, this officer might decide to sneak additional “facts” into his account. Worse, officers who have not yet taken the stand will hear how easy it is to slip some additional “facts” into their testimony. Corner the officer by highlighting the pressures on the officer to make his report as comprehensive as possible.” Use the following questions…. §1:27
- Changing story. “I am always taken aback when a police officer tries to distance himself from his own report. It’s obvious that either the officer realized too late that this bit of truth would undermine the District Attorney’s effort to secure a conviction and wishes ardently that he hadn’t included this troublesome section, or the prosecutor has “persuaded” him to recast his observations in a more government-friendly manner. Thoroughly punish the officer or detective for backpedaling from the truth. Further, if you believe the prosecutor is ethically challenged, use the following cross-examination to highlight his unsavory participation in this evidence-bending scheme….” §1:28
- When description matches your client. “For many defense attorneys, there is a pathological, often counterproductive, need to make a robbery or attack seem less terrible or frightening than the impression created by the prosecutor or the victim. By downplaying the circumstances in a case involving an eyewitness, you make the ordeal seem less threatening and, thereby, undermine your contention that the witness’s faculties were overridden with emotion. Moreover, downplaying the terror of the incident may lead the jury to believe that you believe your client is guilty and are hoping the jury won’t be too hard on him because the crime wasn’t as bad as claimed. By confronting the facts, you demonstrate that you have no fear of them. I begin the cross-examination of the bystander by establishing the basic facts to illustrate just how terrible this ordeal was for him….” §6:02
- When description does not match. “When the witness’ initial description is at odds with your client’s physical appearance, you must hog-tie the witness to that description. Incomprehensibly, some defense attorneys attack the conditions under which the victim made the observation, even when the initial description differs significantly from the client’s appearance. If the initial description differs, then you must elicit from the witness every factor that increased the likelihood that he clearly saw his assailant. Further, if applicable, you must get the witness to agree that the responding officer was interested – asking questions, listening to the answers, taking notes, reading back the description and inviting the witness to comment. Because the witnesses and the police are on the same side, very few witnesses, in my experience, claim that an officer was less than attentive or rushed them. More often, construing my questions as an attack on their credibility, they vociferously defend the officer.” §6:10
- Compare and contrast witnesses’ testimony during cross so jury can see the witness’ reaction. “The cross-examiner normally will not be permitted to ask one witness if another witness is lying. Yet, it is entirely permissible to use cross-examination to draw comparisons between the competing versions of what took place. In fact, drawing such contrasts during cross-examination of either witness is far more effective than arguing the inconsistencies in closing argument. If you raise them during cross, you get something you cannot conjure up during your closing – the emotional reaction of the witness.” §6:70.3
- Motive for making false accusations. “In every sexual assault trial, the jurors are going to confront the question: Why would the victim make such an accusation if it wasn’t true? The prosecutor may argue that the alleged victim has nothing to gain by her accusations and that, on the contrary, no one would willingly subject herself to the scrutiny that is sure to follow an admission that she has been sexually assaulted — undergoing a sexual assault examination, allowing hospital staff to seize her clothing, reporting the incident to the police, testifying before a grand jury, testifying before a trial jury and risking the humiliation of a defense verdict — unless the accusation was true. That argument is mostly nonsense….” §8:95
- Use open-ended question to challenge vehicle stop. “An open-ended question forces the officer to give you his reasons for the stop, rather than having him just shoot down each reason you suggest in a leading question. Make the officer commit to a specific number of reasons and then attack each reason separately.” 3:31.3
- Odor of alcohol. “Except in rare cases, tripping up the officer or attacking his ability to recognize an odor of an alcoholic beverage is a wasted effort. Tactically, it is preferable to attack the conclusion that the officer or the prosecutor would have the jury draw from that odor. Having no means available to forensically measure this odor, the officer must give an imprecise, unscientific opinion: slight, moderate or strong. Whatever its strength, the odor actually reveals little about a motorist’s sobriety. From the odor (or, better, the motorist’s breath), the officer could not determine when the motorist consumed the alcohol, the type of alcohol he consumed, how much alcohol he consumed, or over how long a period of time he consumed that alcohol. It is here that you should direct your attack.” §9:15
- Horizontal gaze nystagmus. “An officer who is allowed to offer “expert” opinion testimony is ripe for a sharp, relentless cross. Not only do few officers realize that alcohol does not cause, but only heightens, nystagmus, most are unaware that the causes of nystagmus are nearly limitless and include aspirin, caffeine, nicotine, fatigue, cold and flu, and antihistamines. Very few officers have any idea how to administer or interpret a HGN test. None will have graduated from medical school. None will have studied the muscularity of the eye. None will be able to compare the nystagmus they claim to have observed (and attributed to alcohol) to the nystagmus your client had on any other occasion. Not a single officer will be able to persuasively explain how he distinguished, without the benefit of any instrument of any kind, a 50-degree angle from a 45-degree angle or a 35-degree angle; at worst, an honest officer will admit he guessed. If you are lucky, the officer will forfeit all credibility by stubbornly refusing to admit it was nothing more than a guess. Cross-examining the officer should prove so devastating to the officer’s credibility that it may be worth letting the prosecution introduce this “expert” testimony through him.” §9:20
- Pretrial interview. “While many prosecution experts will refuse to speak with counsel for the defendant, occasionally an expert will discuss his findings, sometimes at length, with defense counsel. Unless there is some compelling reason not to interview the expert, always contact him and ask him to educate you on his findings. If he cooperates, he may disclose something that you would not have anticipated or he may explain away something that you otherwise would have believed was good fodder for cross-examination. If he declines to discuss the case with you, cross-examine him on that refusal and, thereby, call into question his impartiality.” §7:44
- Downplaying accuracy of AFIS. “If the expert submitted the latent print to AFIS, and AFIS characterized the latent fingerprint as a “match” with your client’s, it may be necessary to downplay the accuracy of AFIS. By demonstrating that the computer assigns accuracy scores to the fingerprints it returns, and that human beings must be the final arbiters of whether the computer has found a match, you can undermine the trust the jurors place in this machine.” Use these questions…. §7:98
REVISION 5 HIGHLIGHTS
The 2016 Edition provides proven strategies and pattern cross-examinations for tackling these common scenarios:
- Cross-Examination of Arresting Officer: Challenging the officer’s reliance on confidential informants and lack of probable cause to arrest; Challenging the officer’s handling of the arrest of a foreign-born suspect
- Cross-Examination of the Detective Who Obtained a Confession: Challenging the impact of defendant’s statement when defendant makes no admission
- Cross-Examination of the Alleged Sexual Assault Victim: Challenging the victim for her failure to obtain, or unreasonable delay in seeking, a restraining order.
The pattern cross-examinations are annotated with more than 20 new Practice Points and Technique Tips, gleaned from the author’s years of trial experience. These provide use-it-today advice for handling a broad range of situations that may arise in the course of defending a client. For example, these tips explain:
- How to use a detective’s “wiggle room” response to bait him and set up a series of questions that highlight the implausibility of his equivocal response.
- The importance of reading a police report carefully, considering not only the “facts” that have been included, but also identifying what is missing.
- In a case involving a confidential informant, the importance of tailoring your cross to the guidelines established in the case law regarding the staleness of allegations/tips, especially of drug trafficking and distribution.
- How to frame your questions to force the detective to take responsibility for his decisions, rather than rely on the excuse of “circumstances” beyond his control.
- How to challenge a narcotics detective’s assertion that your client took a “meaningless drive” and, therefore, must have been engaged in a drug transaction.
- When it might be wise to hire a forensic photographer to challenge the detective’s claims that was able to observe any activity within your client’s vehicle from his vantage point at the time of the stop/arrest.
- Why it is important to ask the court to provide an interpreter in any case in which your client has the slightest difficulty understanding English, and sample language you can use in your closing argument to highlight for jurors the significance of the interpreter.
- How to use voir dire and your opening statement to lay the foundation for an aggressive cross-examination of an alleged sexual assault victim.
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