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Cross-examining Prosecution Witnesses

Cross-examining Prosecution Witnesses

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31Handling Prosecution Witnesses
§ 31.01 CROSS-EXAMINING PROSECUTION WITNESSES — GENERALL
Deensive cross-examination should ordinarily be narrowly ocused. Most o what the witness is saying is probably true and accurate; diuse cross-examination will only demonstratethis and bolster the witness. Deense counsel should concentrate on specifc weak points andcrucial details o the witness’s 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 witness’s 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-examiner’s attack on the witness’s story to the narrowest possible compass.However, when a broad and orceul attack on the witness’s credibility 
is 
advised, counselhas the right to
 
pursue 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 commonly guaranteed by state law; in addition, “[t]he Conrontation 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 also
 
Crawford v. Washington
, 541 U.S. 36, 61 (2004) (the Conrontation “Clause’sultimate 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, thereore,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 Conrontation 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 appropriately draw inerences 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 oragainst a party [sic]. Bias may be induced by a witness’ like, dislike, or ear o a party, or by the
 
 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 States v. 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 useul 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 respondent’s theory o the case.The standard orm o cross-examination question or these purposes is a declarative statementollowed by “isn’t that true?” or an equivalent phrase. For example:The man who robbed you approached you rom the direction o the gas station,isn’t 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, didn’t 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 atthe gas station, weren’t you?The aim in ashioning questions o this sort is to phrase the acts as strongly in avor o the deense as is possible without running a serious risk that the witness will give a credible“no” answer. Thus the fnal question in the preceding series is preerable to “Looking at himcome toward you, you were acing the lights at the gas station, weren’t you?” because the latterormulation is unnecessarily weak. On the other hand, “the lights o the gas station were inyour eyes, weren’t they?” would be overly risky; and even “you were
looking 
directly into thelights” is not as sae as “you were
 facing 
directly into the lights.”The preceding series also exemplifes the oten proftable technique o using “probe”questions 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 beore the last one would have permittedand advised the cross-examiner to drop the entire line without embarrassment or risk o adamaging backfre, whereas afrmative answers to all o them made it almost impossible orthe witness to avoid giving an afrmative answer to the fnal question.Beore beginning cross-examination, counsel should give careul thought to the
areas that s/he had best stay out of  
as well as to the areas that s/he wants to go into. S/he should review the elements o the oense and the overall state o the prosecutor’s 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 not600 •
 Juvenile Court Trial Manual—
2d
Edition
§ 31.01
 
ordinarily be taken up on redirect; and although trial judges have discretion to relieve a party o the rigor o this rule, most o them are more inclined to enorce it strictly than to relax it.
§ 31.02 POLICE WITNESSES
Counsel should keep in mind that policing is a highly rule-bound proession. Departmentalregulations fourish, governing many aspects o police work and surrounding them withdetailed codes o 
shall 
s
 
and
shall not 
’s that are oten utterly impractical or the ocer in theeld to obey. At the police academy and in police manuals, ocers 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 ocers requently ail to do all o the things that it is possible or deensecounsel to show on cross-examination were required or expected o them. They are constantly neglecting to le prescribed reports, leaving items uncompleted in the lling out o reports,departing rom specied investigative procedures, and so orth. (For example, it seems virtually impossible 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 ocer is to setthe ocer up as an expert in criminal investigation by eliciting the ocer’s testimony thats/he is one; then to lead the ocer into agreeing that certain specied methods described by counsel 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 toretrace the ocer’s direct-examination testimony in detail to demonstrate that s/he deviatedsubstantially rom the specied methods, that s/he ailed to take various steps which they callor, and that much o the ocer’s 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 reresh his or her recollection or trial. Counsel will nd it helpul to peruse localpolice instructional manuals, teaching materials used at the local police academy or trainingcenter, and standard police texts on criminal investigation to help identiy points o error inpolice techniques.It is oten tempting to try to show that the police have it in or the respondent or arepicking on the respondent, but the eort to do so out o the mouths o the police almostnever succeeds.
In no event 
should counsel ask a police ocer “What attracted your attentionto the respondent?” or similar questions. The reply is guaranteed to elicit the police ocer’sexperience with the respondent’s prior criminal acts and may also elicit damaging rumor. (I police witnesses volunteer prejudicial prior-crime or prior-arrest evidence, as they will requently seek some pretext to do, a motion or a mistrial is in order.
Cf. State v. Kahinu,
53 Hawai’i 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 specic, calling or short
 factual 
answers and giving the witness no leeway to stray. Counsel should ask what a policeocer
did,
not what the ocer
thought;
“What specically did you see Pat do next?” not“What happened next?” I a police ocer begins to describe what Pat did next by saying “Patappeared to be . . . ,” counsel should immediately interrupt and ask the judge to instruct the witness to answer the question, not to state his or her opinion. And counsel should never ask 
why 
a police ocer did something. Counsel should ask only what the police ocer did and§ 31.02
Handling Prosecution Witnesses
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