One of the most effective weapons that a criminal defense attorney has against the prosecution in a criminal case is their ability to cross-examine witnesses. In order for the prosecutors to prove any case, if the defense challenges them, they're going to have to put witnesses on the witness stand in order to prove up the evidence of any charges that a person has. The criminal defense attorney will then be given the opportunity to cross-examine each of the witnesses. This is where the rubber meets the road in criminal defense. If you cannot challenge the witnesses through an effective cross-examination, then the prosecutors will be successful, your client will be found guilty and probably punished severely.
Over the course of the last twenty-five years of cross-examining witnesses in trials, motions across the country, obviously I wouldn't still be in the criminal defense game if I didn't have some cross-examination skills. Really what I've done is that I've put some structure to my cross-examination in certain areas that come up over and over again so that when I see the area coming up, I'm ready to go. Some of the concepts I'd like to talk about here are what I call looping, hitting the puppy on the nose and fishing. I will go into these concepts in some detail, so you can see how you can put a little structure to your cross-examination very effectively.
Looping When It Comes To Cross-Examination
Looping basically has to do with getting one of your most powerful points out in front of a jury so that they can see it and then loop it three times so that it hits home and that the jury writes it down and they remember it when it comes to that witness and even the prosecutor's case in its entirety. For example, if you have information that a witness has committed perjury in the past, you can ask the witness about it – sir, isn't true that you committed perjury in the past which has t do with lying under penalty of perjury? And when the person says yes, then you're going to loop it three times. When you are committing perjury in the past, you were testifying at a trial just like you are now? And when you were committing perjury in the past, you were lying under oath? And lastly sir, when you were committing perjury in the past, you were doing the exact same thing you're doing today – not telling the truth in front of a jury? This is a highly effective concept if it's used right. You have to figure out what your theme is in the case, what the crucial things are that you want to get out in front of a jury, and then you loop them three times so the jury knows, and of course you come back in closing argument and you hammer it again, and that's usually the reasonable doubt that wins the case for the criminal defense attorney in Los Angeles.
Hitting The Puppy On The Nose
This is a concept where when a puppy does something bad, you take a newspaper and you hit them on the nose. If you do cross-examination in Los Angeles, or anywhere across the country for long enough – you're going to see that witnesses don't like to cooperate in criminal cases. Once they see that you're going to try to embarrass them or you're trying to get out your point, they will then try to weasel out of answering the question and not be cooperative, and this is when you have to hit the puppy in the nose. For example, if you have some prior testimony of a witness – for example, in a preliminary hearing where it comes to a criminal case – and that testimony is under penalty of perjury, and then you're in the trial and the person is saying something that is inconsistent with what they said under penalty of perjury in the preliminary hearing, that's when you have to hit the puppy in the nose immediately so they realize that if they're going to start to lie and change their testimony, they're going to be embarrassed and taken to task in front of a jury. For example, if you ask a witness a question – what color was the car. At the preliminary hearing they testified the car was red, and now they want to change the color of the car to green at the trial in order to help the prosecutors, you can then say to them – sir, isn't it true you testified at the preliminary hearing in this case? Yes. And that was under penalty of perjury. Yes. And you swore to tell the truth there. Yes. And when you were testifying under the penalty of perjury, the judge was there and you said that your testimony was good, true and accurate, correct? Yes. And at the preliminary hearing, didn't you say that the car was red? And if they say anything but yes, then you show them the preliminary hearing transcript and you ask them if that refreshes their recollection. If they try to get out of that, you say to the Judge, Your Honor, I'd like you to take judicial notice of the fact that this witness testified that the car was red at the preliminary hearing. Now, once you have that locked in, now you spin back and look at them and say, why are you saying the car is green now sir? Are you trying to help the prosecutors? You can just go on and on with that. It is a very effective tool to basically destroy that witness' reliability and credibility, and if that's the key witness for the prosecution, a lot of times you can win the case on that.
This final concept has to do with cross-examination, when you have a witness on the stand and you want to get out a good point, but you know once you bring up the problem area, the witness is going to try to get away, just like in a fishing. Once you hook the fish, the fish is going to get off the hook. So, the key is to set the hook very deep in the fish's mouth so that once it starts to wiggle it can't get away. You can reel it up and you've got your fish. Same concept in cross-examination. Once the witness sees that they're going to be embarrassed and that they've ben caught in a lie, inconsistency or problem in their testimony, they're then going to try to backpedal and get out of it, so you want to make sure that you set that hook deep. You ask them about an issue. They say yes, that's true, and then you say are you sure that's true, sir? Yes, it is. That statement is just as good as the rest of the testimony in your case. Yeah, and you feel very confident about it? Right. And you don't have any memory issues, do you? No, I don't. I usually set the hook fifteen questions deep, and then you say, well wait a minute, I've got this document here and it shows just the opposite of what you just testified. Now they're going to trigger and try to wiggle off the hook and say wait a minute. They'll try to explain themselves and this is where you look at them at go listen, we just went through fifteen questions about that. You said that was as good as the rest of your testimony. You just said that information was accurate and correct, and now look at you trying to get off the hook. And then that's where their credibility once again gets destroyed and you can win a criminal case by one of these powerful concepts.