Some Basic Rules
Rule 1: Check your attitude. Cross-examination is not about yelling at the witness, mocking his or her testimony, or otherwise behaving like an ogre. The cross-examiner will rarely, if ever, reduce a witness to tears, nor will he or she experience a Perry Mason moment where the witness suddenly stands and admits to the lawyer's entire theory of the case. A "winning" cross-examination is about controlling the witness so that he or she gives the lawyer the needed ammunition for closing argument. This can be accomplished without histrionics.
Rule 2: Prepare, prepare, prepare. There is no substitute for preparation. The cross-examiner must know exactly what the witness is going to say before he or she ever takes the stand. Direct examination is not the time to prepare your cross-examination. Attorneys must know where they want to lead the witness before the direct examination even begins. If the lawyer hears something new for the first time at trial, the investigation is incomplete, or the witness is simply changing his or her story. The former is cause for concern, while the latter is simply another ground for impeachment.
Rule 3: Know your objective. Cross-examination must be precise. A long, rambling, aimless discussion is pointless. Each witness serves a purpose. Determine what that witness's purpose is and build a cross-examination around your objective.
Rule 4: Focus on technique. Your cross-examination should be limited to short, leading questions. You should elicit one fact per question and never ask open-ended questions. Consider the following example: "What did you do when you exited the car?" This is an open-ended question that invites the witness to offer you (and the jury) a lengthy answer. When lawyers ask this type of question, they lose control. Under the one-fact, close-ended model of cross-examination, the lawyer would ask this same question in a more precise manner. "You exited the vehicle, correct?" This format only allows a "yes" or "no" response. To get more information, and maintain control, the attorney continues his or her examination with similarly structured questions. "As you got out of the car, you locked the door." "From your car, you walked towards the mall's main entrance." "You did not look behind you as you walked towards the mall."
Anything more that the witness wants to add can and should be relegated to re-direct examination, if permitted. Hence, when a witness says, "But I want to explain my answer," I typically respond, "You have already explained this on direct examination."
Rule 5: Choose your words wisely. A lawyer should sound like a human being— not a lawyer. Going back to the example above, don't say "You exited the car." Instead, say, "You got out of the car." Jurors will relate to you more if you speak in a conversational manner. In addition, lawyers should not be afraid to introduce each topic or subject area of cross-examination with a tagline or explanatory phrase. "Let's talk about your prior criminal history," or "I want to question you about what you say you saw my client doing." This will give your cross-examination structure and will help the jurors follow along.
These rules are of universal application. They can be used with any witness on cross-examination. So, nowlet's focus on developing an effective attack against the government snitch.
Questioning the Snitch
When preparing to cross-examine a snitch, begin by understanding why he or she is a witness against your client. What was this witness arrested for, what were the charges, and what will he or she receive by testifying against your client. I comb through all available public records to learn as much about this witness as possible.
When I cross-examine a snitch on his or her deal with the government, I usually use a tagline to introduce this section of questioning to the jurors. For example, I will say, "Now let's talk about your deal with the government." From there, I will walk the witness through the original charges, the facts underlying those charges, the potential sentence, the terms of the plea deal, and the benefits of a plea. For example, "Mr. Witness, the government charged you with mortgage fraud." The witness will answer "yes." Holding the indictment in my hand (for effect), I will then question the witness about the charge against him. "Mortgage fraud means that you lied in order to get a loan." Again, the witness responds "yes." I then proceed, "To get this money that you were not otherwise entitled to, you filled out certain documents." The witness, who is now well-trained to answer my questions, again says "yes." I now proceed to ask more specific questions about the witness's illegal conduct. "The application you completed asked for information regarding your income." "In the form you completed, you said that your income was approximately $250,000 per year." "That was a lie." "You knew that was a lie." "You knew that the mortgage company would rely on that statement in determining whether to approve your mortgage application." For each of these questions, the witness has continued to answer "yes."
For each charge in the indictment, I repeat the same line of questioning. I carefully walk the witness through the other crimes, highlighting the underlying facts, the potential sentences, and the benefits of a plea deal. The objective here is to show the jurors that this witness is not impartial and has a vested interest in seeing the defendant sent to prison.
In many cases, this will not be the first time a snitch is in trouble with the law. The snitch may have a long criminal record. The cross-examiner can and should exploit this fact, especially if the witness has successfully cooperated with the government in the past. To introduce this line of questioning, I like to use a transition phrase, "Let's talk about the other times you have testified for the government." I then walk the witness through the prior instances of cooperation, noting again the crime charged, the facts underlying the charge, the potential sentence, and the ultimate outcome.
This line of questioning works equally with witnesses who have prior convictions but have not actually cooperated. You can still review their prior felony convictions and then use their extensive record to highlight the importance to them of cooperating against your client. The more extensive the witness's prior record, the greater the potential sentence. During closing arguments, the lawyer can use this fact to highlight the snitch's bias and urge the jurors to discredit his or her testimony.
Cross-examination is a skill, an art, and a requirement that must be mastered by any serious trial lawyer. Preparation, creativity, and practice are the essential ingredients to mastering this important skill. Younger lawyers should seize every opportunity to hone their skills by volunteering to handle witnesses and studying more experienced practitioners. Senior lawyers should constantly work on refining their technique. Regardless, there is always room for improvement in this most important aspect of trial practice.
Keywords: litigation, minority trial lawyer, cross-examination, witnesses, cooperating witnesses, snitches