direct & cross examination in criminal cases

Direct & Cross Examination

in Criminal Cases

Presented by Joseph Passanise

Solo and Small Firm ConferenceJune 11, 2010

OVERVIEW

1) Vision

2) Direct in Criminal

3) Focus on Cross in Criminal

4) Practical Tips

OPTIONS FOR JURY

1) Guilty

2) Not Guilty

3) Not Sure

VISION

Theory of Reasonable Doubt

Direct and Cross Examination to Support

Theory of Innocence

VISION

1) Will the Jury Sympathize with Witness? (Gov/Yours)

2) Does the Witness Help/Hurt?

3) List of the Evidence & Facts to Support Theory (Exhibits)

4) Include the Source for the Fact

SUPPORTING YOUR THEORY OF INNOCENCE

Prove Facts Supporting Theory

Impeach Prosecution Case

BUILD CREDIBILITY

DIRECT EXAMINATION

1) State Name / Occupation

2) Build Rapour

3) Direct your Attention to Date, Time, Place – Were you there?

4) What did you See?

5) What did you Hear?

DIRECT EXAMINATION

6) How Close?

7) Under Influence of Alcohol/Drugs?

8) How Long Did you See/Hear?

9) What did you Do?

10) Then, what did you do?

11) How did that make you feel?

CROSS EXAMINATION IS A SKILL & ART

Build Credibility

VIDEO

CROSS EXAMINATION

Bias is Never Collateral!1)Davis v AK, 415 US 308 (1974)

2) State v Hedrick, 797 S.W. 2d 823

(MO App. 1990)

CROSS EXAMINATION

1) Right to Present a Defense

2) Right of Confrontation

Character Assassin!

THEMES FOR THEORY OF INNOCENCE

1) Lack of Curiosity to Investigate

2) No Corroborating Evidence

3) Incomplete Evidence

4) Confusing Evidence

5) Contradictory Evidence

6) Investigation Compromised

7) Bias in Witnesses

8) Inconsistent Statements

CROSS EXAMINATION

1) One Fact

2) Evidence From Witness

3) Build Towards Theory

4) Listen to the Answer / Use

CROSS EXAMINATION

1) Law Enforcement

2) Lay Witness

A.K.A “Little Helpers”

3) Expert Witness

4) Child Witness

POLICE OFFICERS CAN HELP

1) Not limited to Just the Case –(Lead Investigators – Protocol)

2) They are Quasi-Experts

• Specialized training

• Continuing Education

• Investigative Subpoenas

• Search Warrants

• Statements / Miranda

• Search Incident to Arrest

LAY WITNESS

1) Bias

2) Inconsistent Statement

(Chronology)

3) Don’t Argue

4) Control the Flow

EXPERT WITNESS

1) Pick a Point or Two and Hit Hard

2) They Will Always Want to Explain

3) Get them Off Stand

CHILD WITNESS

Please don’t make me cry!

Siblings

Friends

Grand-Parents

Juvenile Officer

PoliceOfficers

SundaySchool Teacher

MinisterTeacher

SchoolNurse

Nurse

Doctor

Counselor(Psychologist)

ChildAdvocacy

Center

DFS

StepParents

Parents

The Iron Curtain

BENEFITS OF PREPARED CROSS

Benefit of Doubt from Court

Builds Credibility

Jury Pays Attention to you!

Limits area of Re-direct?

SOME RULES OF ENGAGEMENT

A. Know Your Case Better Than Government

1) Be prepared to cross with no notes – It is intimidating !

B. Be Discerning

1) Look at witness/keep eye contact

2) Watch Non-Verbal Clues

C. Control the Flow

1) Cover Topics Out of Order

2) Open Questions in Deposition

SOME RULES OF ENGAGEMENT

D. Use Exhibits - Crucial

E. Testify For the Witness

1) Is that right – Yes/No

F. Bring out the Biasness

G. Know Your Style

H. Listen to Testimony and Use it!

WHY DON’T WE USE OPEN-ENDED

QUESTIONS IN TIME

Because…

1) Lose control over witness

2) Don’t always know answer

3) You will get

CONVICTION ASSURING ANSWERS!

PRACTICAL TIPS

1) Practice in Depositions

2) Style and Tone

3) Take a Non-Verbal Class

4) Read Posner / Dodd Book

5)Have Curiosity

5) Eye Contact

6) Pauses

PRACTICAL TIPS

7) Use Subpoenas

8) Inconsistent Statements

Destroy Witness Credibility

www. Entrapped.Com

Thank You2974 E. Battlefield Springfield, MO 65804

Phone: (417) 882-9300 Fax: (417) 882- 9310