15.3 - IV. Planning The Cross-Examination
Jurisdiction | New York |
Iv. PLANNING THE CROSS-EXAMINATION
Material embodying pertinent facts must be organized and marked in a way that permits immediate retrieval. Familiarity with the case not only is necessary to the competence and credibility of the lawyer’s presentation to the jury, but also makes clear to any witness cross-examined that the lawyer knows as much (or more) as the witness about the subject matter—a fact that has a chastening effect on any witness. Display of this knowledge can be communicated to the witness and the jury by incorporating specific information in leading questions.
Wherever the physical scene of an incident is important, it must be visited. Photographs should be taken. Organize all materials in advance. The entire effect of cross-examination can be destroyed by the disruption of the pace and rhythm of the trial caused by a cross-examiner’s failure to have at his fingertips the evidence with which he intends to confront a witness.2110 Fumbling with exhibits trying to find the right one or struggling to put the exhibits in the right order—this will diminish the jury’s perception of the lawyer’s competence and credibility.
Cross-examination requires precise language and specific questions. Finding contradictions in a witness’s prior testimony or statement requires the cross-examiner to be sure of what the witness has previously said. The lawyer’s summary must reflect the witness’s language accurately. It should state what the witness has said, indicate where it is said and cross-reference the statement to other locations in prior testimony, statements, exhibits or documents. It is not sufficient simply to go through grand jury, preliminary or suppression hearing transcripts, mark the important questions and answers, and then hope to find them quickly should the opportunity for contradiction arise. Fishing through transcripts in front of a jury projects a disorganized image, gives the witness an opportunity to reflect and recover, and dilutes...
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- 15.0 - I. The Confrontation Clause Of The Sixth Amendment
- 15.1 - II. General Purposes And Goals Of Cross-Examination
- 15.2 - III. Preparation For Cross-Examination—Rosario Material
- 15.3 - IV. Planning The Cross-Examination
- 15.4 - V. Tactics And Techniques
- 15.5 - A. General Checklist
- 15.6 - B. Application Of Courtroom Psychology To Cross-Examination
- 15.7 - C. Trilogy—Rule Of Threes
- 15.8 - VI. Specific Areas Of Cross-Examination
- 15.9 - A. Inconsistent Statements
- 15.10 - 1. Using The Inconsistent Statement
- 15.11 - A. Inconsistency By Omission
- 15.12 - B. Utilizing The “Trap”
- 15.13 - 3. Resolving The Contradiction
- 15.14 - B. Memory And Recollection
- 15.15 - C. Bias, Interest, Motive, Corruption, Hostility
- 15.16 - 1. Relative Of Defendant
- 15.17 - 2. Friend Of Defendant
- 15.18 - 3. Witness Who Refuses To Submit To A Pretrial Interview
- 15.19 - 4. Witness Whose Expenses Have Been Paid
- 15.22 - E. Cross-Examination By Evidence Of A Prior Conviction Or Prior Vicious Or Immoral Acts
- 15.23 - 1. The Law
- 15.24 - 2. The Sandoval Rule
- 15.25 - 3. Technique And Strategy
- 15.26 - VII. Cross-Examining Specific Types Of Witnesses
- 15.27 - A. Eyewitness And Identification Witnesses
- 15.28 - 1. General Tactical Considerations
- 15.30 - A. Testing The Ability Of The Witness To Perceive And Recall By Using The Individuals In The Courtroom
- 15.32 - C. Cross-Examination Of Witness Who Identified Defendant At A Lineup
- 15.33 - D. Cross-Examination Where Witness Identifies Defendant At Trial
- 15.35 - B. Accomplices
- 15.36 - C. Cross-Examination Illustrations
- 15.37 - D. Undercover Police Agent
- 15.38 - E. The Informant
- 15.39 - F. Expert Witness
- 15.40 - G. The Evasive, Talkative Or Unresponsive Witness
- 15.41 - 1. Control Through Questions
- 15.42 - 2. Control By Agreement
- 15.43 - 3. Limiting The “Expansive” Answer
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