Cross-examination

• Pages: 261-312
• Author: Jonathan Dichter

CROSS-EXAMINATION

4-1

CHAPTER 4

CROSSEXAMINATION

I. INTRODUCTION

§4:01 Cross-Examination Is Your Testimony

§4:02 A Kinder, Gentler Approach to the Officer

§4:03 Two Approaches to SFSTs

§4:04 Article: Baby Stepping a Cop into Saying your Client Is Sober

§4:05 Cross Preparation Technique: Making Your Job Easier, One Page at a Time

§4:06 Innovation of the Cross Database (Learning While Innovating)

II. THE POLICE REPORT

§4:10 Lock the Officer In

§4:11 Establish Bias

§4:12 The Supplemental Report

III. THE INITIAL CONTACTING OFFICER

§4:20 Goals

§4:21 Technical Stop (for Burned Out Lights, Expired Registration etc.)

§4:22 Driving Violation: Speeding

§4:23 Driving Violation: Illegal Turn

§4:24 Accident

§4:25 NHTSA Criteria

§4:26 The Stop

§4:27 Stop Set-Up

§4:28 Approach

§4:29 Pre-Exit Interview

IV. THE ARRESTING OFFICER

§4:40 Goals

§4:41 General Questioning

§4:42 Admission of Drinking

§4:43 The Exit

§4:44 SFSTs

§4:45 Preliminary Breath Tests

§4:46 The Arrest

§4:47 Drinking Pattern

§4:48 Transportation and Observation

§4:49 Strategy for Winning Refusal Cases without Defendant’s Testimony

§4:50 The ARIDE Officer

CROSS-EXAMINATION

Innovative DUI Trial Tools 4-2

V. THE BREATH TEST OPERATOR

§4:60 Goals

§4:61 Observation

§4:62 Accuracy

§4:63 Maintenance

VI. THE STATE’S EXPERT

§4:70 Goals

§4:71 Voir Dire

§4:72 Articles

§4:73 Science

§4:74 Henry’s Law

VII. BLOOD CASES

A. Background Information on Blood Testing

§4:80 In General

§4:81 Taking a Blood Sample

§4:82 Transporting and Storing a Blood Sample

§4:83 Testing of the Blood Sample

§4:84 Plasma vs. Whole Blood

§4:85 Innovation: Understanding it All - Explaining It All

B. Cross-Examination of Specific Witnesses

§4:90 The Witnesses

§4:91 The Phlebotomist

§4:92 The Officer With Custody of the Blood Before Pick-Up and Delivery

§4:93 The Pick-Up and Delivery Person

§4:94 Login at the Lab

§4:95 The Analyst

VIII. DOCTORS

§4:100 Reluctance to Disagree With Other Doctors and Peer-Reviewed Articles

§4:101 Some Words About the AMA

§4:102 Sample Cross-Examination

IX. LAY WITNESSES

§4:110 Goals

§4:111 Sample Cross-Examination

X. CROSSEXAMINATION ETHICS

§4:120 Ethical Limitations of Cross-Examination

§4:121 The American Bar Association Model Rules of Professional Conduct

§4:122 Traditional Supreme Court Cases on Cross-Examination

XI. CROSSEXAMINATION, HEARSAY, AND THE CONFRONTATION CLAUSE

§4:130 Crawford and the Right to Confront

§4:131 What Is Testimonial

§4:132 Application to DUI Cases

DIGITAL ACCESS

4-05 Cross-Examination of Arresting Officer Spreadsheet

4-06 AI Assisted DUI Cross-Examination Trial Preparation Guide

CROSS-EXAMINATION

4-3 Cross-Examination §4:02

I. INTRODUCTION

§4:01 Cross-Examination Is Your Testimony

Cross-examination is the art of the defense attorney testifying, occasionally interrupted by an agreement from

the witness. This is the basic truism of cross-examination. Each sentence (and I do mean sentence, as cross should

almost never be an actual question) should contain as few words as necessary to make the point. Only one point

should be made in each sentence. The point should be phrased in the armative. After several points have been

established, the thrust should be reiterated.

In order to become a master at cross-examination, one should read Posner and Dodd and listen to Terry McCa-

rthy’s lectures scattered on the Internet from various seminars on the topic. Terry is especially insightful on small,

quick statements for cross. His demonstration of one word questioning is simple, yet eective.

So here we go with a variety of cross-examination questions. Not every question is correct for every case, and

not every possible question is delivered below. Instead, what we have is a group of questions that should provide

80% of what you need. Of course, case-specic questions will always be needed. One of the tactics I’ve developed

is a database of potential cross questions organized by theme, which we can just pull and use as needed. Those

questions are included below.

See Ch. 8, Demonstrative Evidence, for a variety of exhibits that can be used in conjunction with cross-exam-

ination of various witnesses. See Appendix A for the prosecution’s approach to direct examination.

§4:02 A Kinder, Gentler Approach to the Officer

“Ocer, isn’t it true that everything you have just testied to on direct examination is a complete lie?” How

many of us style our cross-examination on this model? It is the old tried and true method made famous in books

and movies, but is it necessarily the best?

Sure, jurors expect us to cross-examine a witness, especially a police ocer, aggressively. They may even look

forward to some reworks, but how often does this play to our ultimate benet? How many times could we obtain

the same answers without the possible backlash of juror sentiment? Benjamin Franklin was considered a master at

the art of polite questioning which inevitably led to the conclusion he was after. Let’s see if we can do the same.

When a defense counsel rst rises to ask the witness a question, all is hushed. The ocer is poised to respond

as if a weapon were drawn upon him or her in the street. The DA is set to back-up the ocer with objections and

interruptions designed to shoot counsel in the back, or at least to wing ‘em. Jurors, formerly asleep at the dull

droning of direct examination, are now ready to see this new phase of the trial, and the judge is paying attention

for the rst time since he or she may actually have to issue a legal ruling.

The stage is set. All eyes are upon you and what you do. Nothing. Play it cool. Become the ocer ’s friend

and supporter. Set the trap and wait. Start by oering the most disarming array of questions you can: ocer safety.

And recall that questions aren’t what cross-examination is about—statements are.

Q: The number one rule you are taught in the academy, and at every roll call, at every training and every day as

an ocer is that safety is number one and all the number twos are way back.

The witness is totally unprepared for this. It is not only obviously true, it is solicitous. You are the enemy, yet

you care; you know, you help. In one simple question you have disarmed the ocer. How can he or she respond

with “deadly force” when you have not shown any weapon?

Q: In keeping with rule #1, you are taught how to interact with people in all kinds of situations.

What can the ocer say? “No, I was never taught how to deal with people,” “I am unsure what that question

means,” “Maybe,” “I don’t know,” “I can’t remember”? Of course not. The ocer will agree. Now develop this

theme with the car stop.

Q: When you make a car stop, that’s a dangerous situation.

Q: In fact, car stops are the most dangerous time for ocers to get hurt, or worse.

Q: You were taught that the rst few moments of interaction are the most dangerous.