cross-examining prosecution witnesses

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Handling Prosecution Witnesses

31.01 CROSS-EXAMINING PROSECUTION WITNESSES GENERALLY

Deensive cross-examination should ordinarily be narrowly ocused. Most o what thewitness is saying is probably true and accurate; diuse cross-examination will only demonstratethis and bolster the witness. Deense counsel should concentrate on specifc weak points andcrucial details o the witnesss testimony. Except in the relatively rare situation in which it isnecessary and possible to portray the witness as an outright perjurer when, or example, the

witnesss testimony is exceedingly damaging, s/he could not plausibly be mistaken with regard tocritical details, and substantial motivation or lying can be made to appear it is probably wiseto confne the cross-examiners attack on the witnesss story to the narrowest possible compass.

However, when a broad and orceul attack on the witnesss credibilityisadvised, counsel

has the right topursue it, and should strenuously object to any attempt by the court to protect[the] . . . witness rom being discredited,Davis v. Alaska, 415 U.S. 308, 320 (1974), by limitingcross-examination. The right to a probing and searching cross examination is commonlyguaranteed by state law; in addition, [t]he Conrontation Clause [o the Sixth Amendmentto the ederal Constitution] . . . has long been read as securing an adequate opportunity tocross-examine adverse witnesses, United States v. Owens, 484 U.S. 554, 557 (1988) (dictum);see, e.g., Douglas v. Alabama, 380 U.S. 415, 418 (1965); Lee v. Illinois, 476 U.S. 530, 539-43(1986). See alsoCrawford v. Washington, 541 U.S. 36, 61 (2004) (the Conrontation Clausesultimate goal is to ensure reliability o [prosecutorial] evidence . . . [by] command[ing] . . . thatreliability be assessed in a particular manner: by testing in the crucible o cross-examination).

[R]estrictions imposed by . . . the trial court on the scope o cross-examination are, thereore,constitutionally assailable, Delaware v. Fensterer, 474 U.S. 15, 18 (1985) (per curiam)(dictum); see, e.g., Smith v. Illinois, 390 U.S. 129 (1968); Davis v. Alaska, supra; Olden v.Kentucky, 488 U.S. 227 (1988) (per curiam); specifcally, a [respondent] . . . states a violationo the Conrontation Clause by showing that he was prohibited rom engaging in otherwiseappropriate cross-examination designed to show a prototypical orm o bias on the part o the

witness, and thereby to expose to the jury the acts rom which jurors . . . could appropriatelydraw inerences relating to the reliability o the witness. Delaware v. Van Arsdall, 475 U.S.673, 680 (1986) (dictum), quoting Davis v. Alaska, supra, 415 U.S. at 318. Bias is a term usedin the common law o evidence to describe the relationship between a party and a witness

which might lead the witness to slant, unconsciously or otherwise, his testimony in avor or

against a party [sic]. Bias may be induced by a witness like, dislike, or ear o a party, or by the


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witness sel-interest. Proo o bias is almost always relevant because the jury [or the judge in abench trial], as fnder o act and weigher o credibility, has historically been entitled to assessall evidence which might bear on the accuracy and truth o a witness testimony. United Statesv. Abel, 469 U.S. 45, 52 (1984). And the Sixth Amendment right o cross-examination extendsnot only to questions calling or answers that directly show bias but also to questions that couldopen up a line o urther examination ultimately showing bias. Smith v. Illinois, supra.

Leading questions are permitted on cross-examination and are a particularly useul tool:Not only can they be used to pin a witness down to specifcs and to keep the witness romstraying into areas that counsel does not want to open up, but they can also be used to obtainadmissions o acts stated in the terms most avorable to the respondents theory o the case.The standard orm o cross-examination question or these purposes is a declarative statement

ollowed by isnt that true? or an equivalent phrase. For example:The man who robbed you approached you rom the direction o the gas station,

isnt that true?

When you frst saw him, he was between you and the gas station, right?

In reporting the robbery to the police, you said that you could not tell whetherthe man had come out o the gas station parking area or out o the vacant lot nextdoor, didnt you?

At the time you frst saw him, he was ar enough rom the gas station so that youcould not tell whether he had been on the stations property, is that correct?

From your location all o the gas station lights were behind him, werent they?And looking at him come toward you, you were acing directly into the lights at

the gas station, werent you?

The aim in ashioning questions o this sort is to phrase the acts as strongly in avor othe deense as is possible without running a serious risk that the witness will give a credibleno answer. Thus the fnal question in the preceding series is preerable to Looking at himcome toward you, you were acing the lights at the gas station, werent you? because the latterormulation is unnecessarily weak. On the other hand, the lights o the gas station were inyour eyes, werent they? would be overly risky; and even you were lookingdirectly into thelights is not as sae as you werefacingdirectly into the lights.

The preceding series also exemplifes the oten proftable technique o using probequestions to lock the witness into a position in which s/he must give the desired answer to apayload question or, alternatively, to orewarn counsel that the payload question should notbe asked. A negative answer to any o the questions beore the last one would have permittedand advised the cross-examiner to drop the entire line without embarrassment or risk o adamaging backfre, whereas afrmative answers to all o them made it almost impossible orthe witness to avoid giving an afrmative answer to the fnal question.

Beore beginning cross-examination, counsel should give careul thought to the areas thats/he had best stay out ofas well as to the areas that s/he wants to go into. S/he should reviewthe elements o the oense and the overall state o the prosecutors record on those elements,

so as to avoid the cardinal sin o helping the prosecution by flling in the missing links in itscase. S/he should keep in mind that by touching any particular subject on cross, s/he will openthe door to redirect examination by the prosecutor on that subject, with the danger that theprosecution will improve its case. Conversely, subjects beyond the scope o cross may not

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ordinarily be taken up on redirect; and although trial judges have discretion to relieve a partyo the rigor o this rule, most o them are more inclined to enorce it strictly than to relax it.

31.02 POLICE WITNESSES

Counsel should keep in mind that policing is a highly rule-bound proession. Departmentalregulations fourish, governing many aspects o police work and surrounding them withdetailed codes oshallsand shall nots that are oten utterly impractical or the ocer in theeld to obey. At the police academy and in police manuals, ocers are taught the way todo this or that. The approved procedure remains in their minds as the way to do it, eventhough in practice they soon develop shortcuts that deviate dramatically rom that procedure.

As a result, police ocers requently ail to do all o the things that it is possible or deensecounsel to show on cross-examination were required or expected o them. They are constantlyneglecting to le prescribed reports, leaving items uncompleted in the lling out o reports,departing rom specied investigative procedures, and so orth. (For example, it seems virtuallyimpossible to train police not to pick up a gun ound at the scene o a crime to check whetherit is loaded, although the gun may have latent ngerprints on it.)

Thus a relatively productive way to impeach the testimony o a police ocer is to setthe ocer up as an expert in criminal investigation by eliciting the ocers testimony thats/he is one; then to lead the ocer into agreeing that certain specied methods described bycounsel are proper (or, better still, required by local police regulations) in gathering evidenceto be used at trial or in recording observations or the progress o an investigation; then to

retrace the ocers direct-examination testimony in detail to demonstrate that s/he deviatedsubstantially rom the specied methods, that s/he ailed to take various steps which they callor, and that much o the ocers testimony was not written into his or her report at the timeo the incident, despite the act that s/he handles hundreds o cases and intends to use his orher notes to reresh his or her recollection or trial. Counsel will nd it helpul to peruse localpolice instructional manuals, teaching materials used at the local police academy or trainingcenter, and standard police texts on criminal investigation to help identiy points o error inpolice techniques.

It is oten tempting to try to show that the police have it in or the respondent or arepicking on the respondent, but the eort to do so out o the mouths o the police almost

never succeeds. In no eventshould counsel ask a police ocer What attracted your attentionto the respondent? or similar questions. The reply is guaranteed to elicit the police ocersexperience with the respondents prior criminal acts and may also elicit damaging rumor. (Ipolice witnesses volunteer prejudicial prior-crime or prior-arrest evidence, as they will requentlyseek some pretext to do, a motion or a mistrial is in order. Cf. State v. Kahinu, 53 Hawaii 536,538-45, 498 P.2d 635, 643-44 (1972) (dictum), and cases cited; Bowen v. Eyman, 324 F. Supp.339 (D. Ariz. 1970).)

In general, cross-examination o police witnesses should be very specic, calling or shortfactualanswers and giving the witness no leeway to stray. Counsel should ask what a policeocer did, not what the ocer thought; What specically did you see Pat do next? not

What happened next? I a police ocer begins to describe what Pat did next by saying Patappeared to be . . . , counsel should immediately interrupt and ask the judge to instruct thewitness to answer the question, not to state his or her opinion. And counsel should never askwhya police ocer did something. Counsel should ask only what the police ocer did and

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the actual circumstances under which s/he did it. Counsel can argue in closing argument thatthe police ofcer did it or the wrong reasons i that is a permissible inerence rom the ofcersactions in the circumstances. But trying to elicit a police ofcers reasons rom the ofcers ownmouth will get counsel nothing except sel-serving protestations o angelic good aith, coupled

with everything damning to the respondent that the ofcer can think o.

31.03 ACCOMPLICES TURNED STATES EVIDENCE

When accomplices turn states evidence and testiy or the prosecution, their testimony isusually damning. The only way to undermine an accomplices testimony is to show that s/hehas some motive or abricating. Standard techniques are to demonstrate (a) the accomplices

bias against the respondent; (b) the consideration s/he is getting rom the prosecution romtestiying; (c) his or her prior criminal record or bad character or truthulness or both, withinthe limits allowed by local law and constitutional doctrines (see 30.07(c) supra; 31.11-31.12 infra); and (d) the inconsistent story that s/he told (accomplices always do) when frsttaken into custody, denying any complicity in these crimes (see 31.10 infra).

An accomplice should ordinarily be asked whether charges against him or her havebeen fled; i so, whether they have been dropped or reduced or whether s/he is aware o anydiscussions that have been had in regard to the dropping or reduction o those charges or thesentence in his or her case. (I the accomplice lies, the prosecutor is constitutionally obligedto disclose the truth or suer the invalidation o the respondents conviction when the deal

with the accomplice is kept and the truth is discovered. Napue v. Illinois, 360 U.S. 264 (1959);Giglio v. United States, 405 U.S. 150 (1972); DeMarco v. United States, 415 U.S. 449 (1974)(per curiam);Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002); Hawkins v. United States, 324 F.2d873 (5th Cir. 1963); see Ring v. United States, 419 U.S. 18 (1974) (per curiam). I a respondentis convicted at a trial at which an accomplice has testifed or the prosecution and has deniedmaking any deal with the authorities in exchange or his or her testimony, counsel should keepa close eye on the disposition o the charges against the accomplice which are usually letpending until ater s/he has testifed and then airly promptly disposed o so that counselcan make a new trial motion on Napue grounds as soon as evidence o a Napue violationappears.) Stressing the maximum penalties to which the accomplice could have been sentencedhad there been no deal (especially i the accomplice was subject to being transerred to adult

court and subjected to the much lengthier sentences that can be meted out there) is one way toattempt to persuade a judge or jury why someone in the accomplices predicament could lie.

One caution should be observed in exploring the background o relations between theaccomplice and the respondent in an eort to show personal bias. I counsels interview othe client reveals that the client and the accomplice know each other primarily through theircommission o crimes together, counsel should obviously rerain rom cross-examining theaccomplice about the nature o his or her relationship with the respondent in order to avoideliciting otherwise inadmissible other crimes evidence (see 30.07 supra). Sometimes it willbe sufcient to phrase questions careully and to instruct the witness to answer certain o themyes or no.

31.04 COMPLAINANTS IN THEFT CASES

Many complainants who are victims o thet have no personal knowledge o the accused.Their only unction is to identiy the stolen items as those that were taken rom them. I the

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cross-examining prosecution witnesses

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