Cross-Examination in a Hearing or Trial in California
Cross-examination and being able to do it skillfully is the best friend of a great criminal defense attorney because a lot of times, when push comes to shove, and you want to test the prosecutor's case, your client is saying one thing, the prosecutor's witnesses are saying another thing, and you're at an impasse.
Sometimes, you have to take the stick to the prosecutor's case. Set the case for a preliminary hearing. Set the case for trial. Set the case for a motion. The only way that you will effectively exploit the weaknesses in the prosecutor's case is by an effective cross-examination of their best witnesses.
Effective cross-examination is not just about asking the right questions. It begins with a thorough investigation, which provides a solid foundation for your case. This means gathering excellent information to use against the prosecutor's best witnesses.
It involves talking to your client and other witnesses, and using your experience, facts, and circumstances in a case. With this preparation, you can confidently confront the prosecutor's case.
Top Cross-Examination Tips
I wrote a DVD that is a video about my ten top cross-examination tips. Some of the tips in that video specifically discuss how to cross-examine a witness effectively. When you get information about a witness, and you want to confront them with it, you have to realize right from the beginning that the witness is going to try to wiggle off the hook.
In other words, that witness is going to attempt to get out of whatever piece of good cross-examination you have against them, so if you know that in advance, and you're going to design your questions leading up to the impeachment, that you're going to cross-examine them about so that they can't get out of it.
The only way I can express this is by example. Suppose you've got a witness who, for example, has signed a contract agreeing with another party that they'll get 60% on a loan that they'll give them, which is loan-sharking rates, for example.
You ask that witness whether or not they're involved with a loan-sharking agreement, and most of the time, that witness is, of course, going to say no because that would be illegal, and they would get in trouble. But don't forget. You've got the loan-sharking agreement with their signature on it.
You have a witness who can testify that they entered that contract, and you have good evidence that the person entered a loan-sharing agreement.
So, when you confront them with some of your evidence and say, wait a minute, don't you know Bill? Didn't you sign an agreement with Bill? Show them the deal with their signature on it. As an effective cross-examiner, you have to realize they're going to try to get out of that.
Anticipating the witness's attempts to evade your questions is crucial. They may fabricate excuses, deny their actions, or distort the facts. Your task is to set them up through a thorough examination, so when they try to wriggle out of your strong impeachment, you've already laid the groundwork for them to fail.
Now, you can make them look bad in front of a jury and in front of a judge, and that does some nasty damage to the prosecutor's case. This process of setting up the witness not only impeaches them but also empowers you, making you feel more in charge of the trial.
A colleague of mine and I were doing a preliminary hearing in downtown Los Angeles, and some bar manager had gotten in a fight with our clients. He started the fight. He attacked them, and they beat the guy up, and then he cried like a baby and said that they battered him, and it was like a felony battery serious case.
We had a video of him weeks before doing the same thing to other people, but this time, he bullied these people and had the bouncers there. The incident with our client was at three in the morning, and the bouncers had already gone home, so he was doing his regular bullying pattern but didn't have anybody there to back him up.
So, we asked him, don't you do this all the time, where you're causing trouble? No, I've never done this before. You'll never have any proof that I've done this. Bam! We've got the videotape. Of course, we set him up, and now we have the tape impeaching him that he's lying.
Not only did it impeach him and show that he's a liar and has no credibility, but it also showed what our clients were telling us: that this guy is a bad guy. He caused trouble. He attacked them, and all they did was defend themselves. This is what effective cross-examination is all about.
If you believe your case is a winner and that there is good evidence to support your version of events, it's crucial to have confidence in your case. Come sit down with me. We'll discuss it and see what we can do to get you out of the criminal justice system as quickly as possible.
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