A New Way to Think About Cross-Examination

“Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.”—John Henry Wigmore

WARNING for the reader

The methods in this paper and subsequent talk are for advanced trial lawyers. It will assist younger and beginning trial lawyers to understand what they have the ability to achieve some years in the future, but those lawyers first must learn the fundamentals of cross-examination before attempting the techniques explained below.

Cross-Examination

This is the skill that truly differentiates trial lawyers from the rest—this and possibly voir dire. True, there is nothing like an amazing closing argument or a creative opening statement, even a thorough direct examination highlighting emotion and character development, but in a time when we are essentially asking jurors to check their lifelines (cellphones) at the door and pay attention just to what we are showing them often for a week in duration, they want to be entertained and you better deliver. We are inundated with legal shows and movies throughout pop culture and jurors are not satisfied with lawyers telling them in the courtroom that everything they have ever seen is Hollywood and courtrooms are a lot more boring so what they are about to view is basically one big boring trial. What do they want to see…

But peek your head in a courtroom in your jurisdiction and how much is punctuated by dead silence with lawyers struggling to come up with a next question, or worse yet, repeating questions on cross that were already asked on direct examination? Jurors demand more and frankly, they, the courts, the cases and the clients deserve more and we need to deliver that “more” to them. Let’s cover the basics first.

The Basics

So, why the paintings in a paper on cross-examination? Better yet, can you name the painters?

From left to right we have:

Pablo Picasso, Family of Acrobats—1905

Salvador Dali, Portrait of Luis Bunuel—1924

Jackson Pollock, Going West—1934-1935

Vincent van Gogh, The Sower (after Millet)—1881

[The Judges say close enough if you guessed, The Sower (before Millet)]

The reason for these paintings is because many believe that these artists simply did their own thing. They were never classical painters and they did not know the basics. As you can see, they knew the basics very well. So must you as a cross-examiner.

So what are the basics for you?

Start with the following:

Trial Techniques and Trials, 10^th Edition, Thomas Mauet, formerly Fundamentals of Trial Techniques with multiple editions

Irving Younger’s 10 Commandments of Cross Examination found at the link below:

https://www.youtube.com/watch?v=dBP2if0l-a8

They are:

1. Be brief
2. Use plain words
3. Ask only leading questions
4. Be prepared
5. Listen
6. Don’t get into a quarrel
7. Avoid repetition
8. Disallow witness explanations
9. Limit questioning
10. Save the main point for the summation

Those two materials will form your building blocks to begin your entry into the art of cross-examination.

Out of those 10 Commandments, beginners MUST learn and practice:

Using only leading questions, using plain words and listening.

Leading Questions

Ironically, it is what I want you to most learn with leading questions for everything that I will be later asking you to most abandon as you advance through the art. However, it is so important to be able to use whenever you want to be able to reign your cross back in or to control the witness who goes out of control.

Plain Words

Using plain language has become more important as the years go on. You go to high school, you learn your grammatical rules, you learn your new and improved vocabulary words for the SAT which you promptly forget once the SAT is over, you go to college and write down some impressive new words and then you go to law school and are trained to speak, think and act like a lawyer. You go to your first trial and your more experienced co-counsel is helping you pick your first jury and the first group of people you are told to exclude from the jury—lawyers.

So now, your audience is non-lawyers. And how do people speak and communicate in 2021? Many of us use emojis to speak 😯

So here you are about to do an examination and let’s ask questions like a lawyer.

You usually first see this in the first direct examination after opening statements.

State, call your first witness.

Thank you, your honor. The State calls Mr. Jones.

Mr. Jones, can you please state your full name and spell your last name for the record?

Yes, it’s Sam Jones, J-o-n-e-s [didn’t you go to law school or something]

And Mr. Jones how are you employed?

…

And Mr. Jones, drawing your attention to February 3, 2021, what kind of vehicle were you driving that day?…

And on, and on…

This is not how we speak in everyday life and you lose the focus of jurors one by one because they can’t relate/connect.

Ask yourself, would you ever speak that way if meeting up with someone at a bar?

Hi Andrea, I’d like you to meet my friend Sam.

Andrea: Hi Sam, nice to meet you, can you state your full name for me and spell your last name so I can put it in my iPhone?

Thank You. How are you employed?

What kind of vehicle do you own?

Sam: You speak just like me. Can I get you a beverage? Are you an attorney also?

…

The lawyer speak can just sound ridiculous. To cure it, speak and ask questions like you would of your friends in a bar or over dinner.

Where are you from, what do you do, etc…

Lastly, do not use subjective terms unless you can establish a definition for the subjective term through the witness or through another witness. This takes preparation and practice and starts taking you outside the realm of basic cross-examination.

Here’s how it works—younger lawyers will ask the questions:

You were driving really fast, weren’t you?

Answer: No

It was very cold that day, wasn’t it?

Answer: No

The reasons for the answers often is because the terms “fast” and “cold” are subjective—what is cold or fast to you may be different for the witness and for the individual jurors. The word “really” makes the term even more subjective.

However—can you establish a baseline for whether something is cold through this witness, another witness or an expert witness?

For example, if you had a credible detective in the vehicular homicide unit establish that 90mph is “really fast” for a particular stretch of road, at a particular time of day and for particular road conditions and all evidence has shown that the witness was travelling 90mph, now you can feel free to ask the question,

At X time on X date, you were driving really fast, weren’t you?

[For an even better question, we will explore making that open ended in the advanced section].

One Question, One Fact

Many lawyers starting out will ask compound questions. Not only are the questions subject to an objection, you will not know what the witness is answering.

Mr. Smith, you were driving a blue truck at 9am on March 20, 2020?

No, not exactly.

What do you mean not exactly.

Well not exactly, can you repeat the question.

Much simpler is:

You were driving at some point on March 20, 2020?

Yes

You were driving a truck?

Yes

The truck you were driving was blue?

Yes

You were driving it at 9am?

Yes

Then you have established your baseline that you can begin to repeat if it helps, adding one additional fact at a time:

So as you’re driving your blue truck at 9am on March 20, 2020, at some point, you approach a flashing red light?

***I hope you caught what I did there…I will give you another chance to read it over***

I added in the word “your” into the last question for 2 reasons:

1. Many young/beginning attorneys will leave out a fact in the initial basic questioning and get tripped up for adding an additional fact in that has not yet been confirmed—while the witness admitted to having driven a blue truck on that date and time, the witness has not yet admitted that it is the witness’s truck
2. Some more experienced attorneys will try to sneak in the “your” truck portion intentionally, hoping that it is cloaked well enough within the question to generate the answer sought, “Yes,” to establish ownership of the truck. This could backfire as being sneaky if the attorney is caught doing it by the witness or opposing counsel highlighting it to the jury—and the loss of credibility if the jury thinks you are being sneaky can kill your case.

Listening

This is probably the number one or two most important thing with cross-examination, the other being preparation.

This is the reason why I provide my client with a piece of paper and a pen at counsel table—because when I am cross-examining a witness, I am listening to the answer, potentially anticipating objections and anticipating/formulating next questions based on the answer as well as determining how the answer is helping in the overall presentation of the case. The last thing I want while listening is a person in my ear telling me that the getaway car he drove was blue, not red.

Every word counts, but also watch body language and facial expressions. The art of cross-examination is live and in the moment. That’s the beauty of it. If a witness laughs, I want to know why. If a witness pauses, I want to know why—and most of the time, I will ask why—which leads us to:

Advanced Cross Examination or… A NEW WAY TO THINK ABOUT CROSS-EXAMINATION

So here you are, you’ve been practicing for about 10 years and have around 50 substantial cross- examinations already conducted before you can even try to begin to find your own style.

This is where we develop from our basic art to:

Pablo Picasso, Girl Before a Mirror—1932 (Approximately 27 years after painting above)

Salvador Dali, The Persistence of Memory—1931 (Approximately 7 years after painting above)

Jackson Pollock, Convergence—1952 (Approximately 17 years after painting above)

Vincent van Gogh, The Starry Night—1889 (Approximately 8 years after painting above)

We also graduate from Mauet to some other experts to show us what to do:

“The art of Cross-Examination” by Francis L. Wellman (Originally from 1903 and certainly not politically correct by modern standards, but nonetheless a good read for cross-examiners)

“MacCarthy on Cross-Examination” by Terrence MacCarthy

“Trying Cases to Win” by Herbert J. Stern—4 volume set (1 of which is cross-examination)

[The Stern set is expensive but a must read and you can read it in a law library for free]

Background and Finding Your Voice

Once you are ready to delve into the advanced art of cross-examination, you have to take stock of who you are, where you are in your career, and how much time needs to be dedicated to what you’re doing to do it right. There is no limit to the level of preparation that needs to be put into defending a case and some of the most difficult cross-examinations.

If you want to be defending clients in murders, sexual assaults or even want to make a name for yourself as a specialized cross-examiner of police officers in DWI cases, you need to think of yourself as the professional you want to be. Being a trial lawyer is not just a job, it is a calling. We are the professional athletes of the legal profession. Every Body Cam must be reviewed as well as every in-car video (to the extent it does not mirror the Body Cam), every recorded witness statement must be reviewed, including the times they are left alone in the interview room (you would be surprised the things they say to themselves), review social media and Google all participants (including police officers), get prior transcripts if available, go through all text messages, Snapchats, etc. in imaged computers and phones, zoom in on details in pictures, research an expert’s field of study and become a mini-expert yourself and then, ALWAYS visit the crime scene. This list is far from all-inclusive but it is this level of work that will enable you to have the tools to effectively cross-examine.

To find your voice, you have to learn to try your case within the scope of your own personality. It is very difficult to transform and become someone you are not. More importantly, if you abandon who you are, juries will see through that and will find you insincere. Your credibility is everything—let the jury see your true self—fears, flaws and all. They will thank you for it.

When I attend CLEs, my goal going in is that it is a gain for me if I can learn one or two things that I believe can work for me. Not everything you see and hear will match your style. Find the one or two things that do and add them to your arsenal. If you do, you will have a lot of tools to use when the time is right.

Last bit of advice before we dive in: Challenge yourself mentally every day. I downloaded the app “Elevate” which I use first thing in the morning for 5 minutes to challenge my reading, writing, speaking and math skills. I also have a Chess App to always keep me on my toes. Trial lawyers are competitive and trying to think 3 moves ahead of a player in Argentina, Australia or India fascinates me. Do at least a half hour physical workout of whatever kind 3 days per week. Your energy level will reap the benefits. Get enough sleep, especially during trial so your mind stays sharp and you’re able to actively listen and plan. Treat those around you with respect during trial—this includes your client, the Judge, opposing counsel, your significant other, your kids, your co-counsel and any administrative assistants from your court coordinator to your own. You don’t want an added burden throughout a trial of guilt for having snapped on someone who didn’t deserve it. Last but not least—Do NOT take yourself too seriously. Take the case seriously, take your examinations seriously, take your preparation seriously, but not yourself. Things happen in trial, mistakes happen, unexpected testimony happens all the time. This is not a time for embarrassment or bruised egos. If the jury or the court audience laughs because you asked a bad question they found funny but you did not intend for it to be, take the time to embrace the moment—it probably was a bad question. Powerpoints don’t work at times (but you should practice with the courtroom technology beforehand), technology malfunctions, Windows will start updating for 20 minutes just as you are about to access your most important impeachment in your case—roll with it. You’ll be better for it.

THE FORMULA

So now we are finally here. After about my first 16 years of practicing law I created the following formula for cross-examining witnesses that I believe works very well if you put in the preparation necessary to answer each question. To effectively cross-examine a witness, this is the formula:

• What Do I Want the Witness to Say?
• What Does the Witness Have to Say?
• What Does the Witness Want to Say?
• What Doesn’t Make Sense?

If you can map out these questions in bullet points or in your head, you have the tools for a highly effective cross-examination.

What Do I Want the Witness to Say?

I want you to think of this two ways:

• What is the ideal thing I want the witness to say?
• What do I want the witness to say practically speaking for the case?

Prong 1 keeps us focused on our ultimate goal and theory of the case when examining each witness. So here we are defending an adult-on-adult sexual assault case. The defense is consent. My ideal scenario—yes, I would want the witness to say either, I made it up because I had a boyfriend and I did not know how I was going to explain the situation, or I lied because reason X. This will help us frame the second prong.

Prong 2 is anything that will fit your theory, but think big. I hear too many times from lawyers, “I will never get this witness to say that.” Many times the witness will give you more than you expect and if not, you can certainly paint the picture. So in our scenario, what do we want from Prong 2? I never screamed, I never told him No, I never tried to push him off/away, I figured I would just go along with it because I was surprised by what was happening. This is the testimony we are looking for. If through your questioning, the complaining witness can be perceived as hostile, condescending, flippant, or there is a noticeable change in demeanor toward your questioning versus the other side, that will help as well.

What else do we want the witness to say? Anything that contradicts the witness’s own prior statements, anything that contradicts other testimony from other witnesses for the State, anything that contradicts other scientific evidence presented by the State, anything that contradicts any physical evidence/pictures from the scene, anything that supports the testimony of defense witnesses, anything that supports your theory of the case and anything that goes contrary to the laws of nature and common sense (which will be addressed more in the What Doesn’t Make Sense section below).

What Does the Witness Have to Say?

This is your classic impeachment. These are the things the witness is locked into saying before she takes the stand. These sources include: statements to law enforcement, statements to friends, other communications to friends like texts and Snapchats and Facebook Messenger, 911 calls, statements to medical professionals, statements to the SAFE (Sexual Assault Forensic Examiner), statements posted on social media, statements at any prior hearing in the case, statements to “Victim/Witness Counselors,” statements to therapists, and statements made on direct examination.

Law enforcement witnesses are locked in to stating that they acted in accordance with the agency’s policy/procedure manual, the employee handbook and the law.

If the witness does not admit to these, the impeachment should be ready to go—meaning a prior transcript page and line number ready to use, a recording hour, minute and second ready to use, etc.

Once again, the witness will also have to say things that comport with the laws of nature and common sense (which will be addressed more in the What Doesn’t Make Sense section below).

What Does the Witness Want to Say?

If the last of the 4 prongs (What Doesn’t Make Sense) is what ties this all together and requires the most work, this prong is probably the most challenging. Here we are sizing up the witness and trying to get into the psyche of the witness.

For some it’s a bit easier than others. For example, on the whole, law enforcement in a DWI case will want to take the stand and state that the person the police arrested was intoxicated. Those officers will also do everything to try to place themselves in the best light possible. You will hear testimony such as, “I was just trying to determine if Mr. Smith was safe to drive,” or “I was trying to provide Mr. Jones the opportunity to show me he was not intoxicated.”

Most witnesses will attempt to put themselves in the best light possible, whether it’s the cooperating witness who says, “I may get a deal, but I’m just here to tell the truth,” or the witness of the complainant in a bar fight, “I was just trying to break up the fight and make sure no one got hurt.”

Again, researching social media and all other resources above will help you get in the mind of the witness. When you can almost predict exactly how the witness wants to act and what they want to say, it makes it that much easier to begin to structure your cross. It’s like playing chess—you are looking 3 to 4 moves ahead—if I say this, the witness will want to say this and then I will follow-up with this. This is the time when listening to the witness’s answer becomes extra important—because if the witness begins to deviate in any way from how you believed they would testify, it will call for an immediate adjustment. So, in a DWI, if a law enforcement officer testifies on direct that your client did not perform that poorly on one of their Standardized Field Sobriety Tests (SFSTs), it should raise a flag, is this a witness who is purposely conceding something to make himself look more credible in front of the jury (may that have been the product of some coaching by the prosecutor), or is this a potentially friendly witness who had some second thoughts about the arrest and we can turn the officer into a friendly witness for us.

What Doesn’t Make Sense

This is the section where everything comes together and we are looking at the heart of advanced cross-examination. If you can figure this portion out as to every witness in every case, this is where you can begin to deviate from leading questions and develop your open ended questions to set your traps and crush your witnesses.

So, what doesn’t make sense—what does this mean? It means you drill down to the most basic concepts of the predicted testimony and the actual testimony after direct examination and ask yourself, what is this witness saying that goes against what another witness has said, which goes against the physical/scientific evidence at the scene, which goes against forensic data (cell phone locations), which goes against the laws of nature and which goes against common sense. I guarantee you that this presents itself in every case. You just have to look for it. If you remember those optical illusion pictures from years ago, when your friends told you, “You’ll see the dolphin if you de-focus your eyes,” and you never were able to see it—it’s quite a bit like that.

Let’s start easier, with a standard DWI. Ms. Butler is stopped for speeding, going 75 mph in a 65 mph zone at 3am on February 4, 2021 in Austin, Texas. Reasonable stop? Probably. Ms. Butler pulls over right away into an empty parking lot. She rolls down her window. She complies with the Police Officer’s request to provide her license and insurance information. The officer (who notes in his report that he smelled the strong odor of an alcoholic beverage on her) asks her if she had anything to drink tonight, to which she responds [all together now], “two beers.”

Officer radios for second officer to arrive on scene. Ms. Butler appears fine when she steps out of the car. She is smiling and polite. She seemingly has a slight slur in her speech. One of the two officers administers the Horizontal Gaze Nystagmus Test (HGN) to her, and then the other tests—walk and turn and 1 leg stand. The same officer asks Ms. Butler if she will provide a breath sample for a portable breath test, she refuses, is placed under arrest for DWI, and then refuses to provide a breath/blood sample. The officer does not attempt to get a blood search warrant.

Upon review of the probable cause affidavit, you notice Ms. Butler supposedly exhibited 6 out of 6 clues on the HGN with no vertical nystagmus, had 3 clues on the walk and turn and 1 clue on the 1 leg stand. On direct examination at trial, the officer said Ms. Butler failed the SFSTs and said she failed the 1 leg stand as well. He stated that while he noted Ms. Butler used her arms for balance on the 1 leg stand, he must have forgotten to note that she also swayed.

So what doesn’t make sense?

First, why is Ms. Butler out of her car? Why did the police get her out of the car for speeding and because she had the odor of an alcoholic beverage? If it is legal for people to go to bars have a couple of drinks and drive home, and if it is legal for people to go to parties or friends’ houses, have two beers and drive home, then why are they having Ms. Butler get out of her car?

Second, it doesn’t seem, without knowing more that it is probable that Ms. Butler was driving while intoxicated, does it? Why is the officer asking for a Portable Breath Test (PBT), if the officer already has probable cause to believe Ms. Butler is intoxicated? Or, is the officer not sure at that point if Ms. Butler is intoxicated? Or, at that point, is the officer sure, but the officer is just gathering additional evidence to prosecute her for DWI?

Third, when administering and conducting the 1 leg stand, why do officers insist that Ms. Butler look down at her foot when looking down would cause someone to lose balance? You do not drive and look at the hood of your car, you look at the horizon. You do not walk or run and look at your feet, you look out in front of you. Yet, we take this as a given and it makes absolutely no sense.

Fourth, what is the officer’s personal rate of error in administering these tests? How do we not know? If I type and make mistakes, I have a rate of error. If I drive a car with the goal of staying at or under the speed limit, I have a rate of error. Not knowing how often the officers are wrong in their calls of when someone should be arrested for DWI or not does not make much sense.

So take this and put it into our mix.

Now, let’s go back to Irving Younger’s 10 Commandments of cross-examination. Specifically, let’s focus on numbers 3, 8 and 10 which are ask only leading questions, disallow witness explanations, and save the main point for summation, respectively. These are important points for basic cross-examination, but I absolutely hate them for advanced. Why?

• When you are leading a witness, you are controlling the whole narrative and jurors notice that. This is the attorney’s control but I’m not truly hearing anything from the witness except Yes’s and No’s and it’s a bit disconcerting that on direct examination it was much more of a conversation and now the witness has been relegated by the attorney to nothing more than a robot. Additionally, many prosecutors will prepare their witnesses on how to answer leading questions. They will say, “Just answer yes or no. Do not volunteer anything. And, don’t be afraid to answer, ‘I don’t know.’” And, “feel free to say, I can’t answer that yes or no, may I explain. And if they say you may not, I will ask you that question on re-direct in the form of, ‘Do you remember when Mr. Brand asked you a question and you said you couldn’t answer it yes or no, may I explain and Mr. Brand wouldn’t allow you to explain, can you now please explain to us why…’” This will ultimately make the defense attorney appear that the defense is hiding something from the jurors. Open ended questions often cure all of that—they just take much more time and preparation to formulate. Ask yourself this, if you’re a prosecutor, how do you prepare a witness for open ended questions? The answer is you can’t and the witnesses are left wholly unprepared for their answers.
• When you disallow witness explanations you are cheating the jury of information they feel like they should have and you are cutting off their ability to have it [we call jurors fact finders but they are not really “finding” anything—they are recipients of what we present]. If that’s not bad enough, the prosecutor, as seen above has the opportunity at re-direct and sometimes at re-re-direct to get the witness to explain. The subtext then becomes as seen above, please witness tell the jury exactly what the defense did not want you to hear. That’s a credibility hit that is very difficult to recover from. Remember, when you are closing, the jurors are going to believe one side over the other. If you are taking hits on your personal credibility during your cross-examinations because you are perceived as keeping testimony from the jury, they will punish you for it as the trial moves forward.
• When you save the main point for summation, the jurors feel cheated that they didn’t get to see the live fight between the attorney and the witness. Remember, we are taking away their phones. Some of our jurors watch MMA/UFC. Some of our jurors watch the Real Housewives of [Insert whatever city or county] and see their fights there, other jurors watch their political fights on CNN or FOX, they live to see the fight. Plus, saving the point for summation may be too late if the juror has already mad up the juror’s mind [while I know jurors would never violate the law and Judge’s instructions by making up a juror’s mind prior to receiving the case to deliberate, it may have happened once or twice in the past 😉]. There are some times when you know for sure a closing point sails under the radar or the prosecution is just missing something that you know about that you will want to hold it close to you for closing, but those times in actuality are quite rare.

So how do we do this then? How do we do this through open ended questions getting the witness to explain and then challenging the witness. First, get in the right mindset. Stop putting the witnesses on a pedestal thinking you can’t go toe-to-toe with them. People ask me, “Well, what if it’s an expert?” Answer—diffuse or deflect from the situation. As an example, you have a child sex case. All the prosecution has as evidence is the word of an 8-year-old girl stating that your client, her step-father, penetrated her vagina with his penis on two occasions three months ago. The child is provided a SAFE [SAFE here is used interchangeably as Sexual Assault Forensic Examiner (the expert nurse) and Sexual Assault Forensic Examination (the actual exam)] which reveals absolutely no injuries. The SAFE expert testifies on direct examination that after a comprehensive exam, no injuries were found on the child, which, the SAFE testifies, is entirely consistent with the complaining witness’s account of sexual assault of a child. Pass the Witness.

Cross? Now, you can obviously do this cross through leading questions. I will often hear questions like:

Q: So you examined her, right?

A: Yes.

Q: And your exam was thorough?

A: Yes

Q: And it was as thorough as it could be?

A: Yes

Q: And despite your exam which was as thorough as it could be, you found absolutely no injuries?

A: Correct

Is that a bad cross? No. You elicited the points you needed to make. You made it crystal clear to the jury that absolutely nothing was wrong with the girl physically. And, these crosses will usually go longer hammering home that point. But is there anything here that doesn’t make sense. What jumps out to me is, why are you doing an exam on an 8 year old if you don’t expect to find anything? And, why is proof of nothing evidence of something? For example, if my friend told me a UFO landed in his yard 6 months ago and he goes to show me where and the grass where he said it landed is undisturbed, I would probably tell him that this is no evidence at all that a UFO ever landed here. If his answer is, well of course not, it all grew back because it has been 6 months, that would seem like circular logic. Open ended questioning hitting at the lack of common sense will help expose the key points to the jury and it makes all the answers become volunteered out of the witness’s mouth.

You can mix in closed-ended/leading questions to move the cross along or to control the witness. However, the open-ended questions seem much more engaging to a jury as they are sitting in on a conversation.

Q: Have you ever conducted an examination of a child during a well-check-up?

A: Yes.

Q: Can you describe what your well examination of a child consisted of? In other words, what happened during the examination?

A: Well, I examined her ears, nose, throat. I checked her pulse. I checked for appropriate growth milestones. I checked reflexes…

Q: Other than the report of abuse that you received from the Detective, can you explain how the findings in your examination for the well-child exam you did were different than the findings from the exam on this child?

A: Well they were the same.

Q: How were they the same?

A: Both children were in perfect health

Q: Did you tell the first child’s parents that your findings were completely consistent with sexual abuse?

A: No

Q: Why not?

A: I guess because she didn’t make an outcry of sexual abuse.

Q: And this child didn’t outcry to you either?

A: No. I got the information from the Detective

Q: So your actual physical findings of your exam of the well child and that of this child were exactly the same?

A: They were—But we would not expect to necessarily find anything here

Q: Is this an examination which is pleasant for the child?

A: Not necessarily

Q: Could you come up with a list of things that would be more fun or more educational for an 8-year-old child to do with her time?

A: Perhaps [We have not covered this, but learn to punish a witness for an equivocal answer on this point through the next question]

Q: Do you know of any child who would prefer to go through a Sexual Assault Forensic Exam than do just about anything else in the child’s life, from playing sports, to texting to video games, to having a friend over?

A: No

Q: So when you say, “Perhaps” you could come up with a list of things that would be more fun or more educational for an 8-year-old child to do with her time your real answer is absolutely.

A: Yes:

Q: Why would you ever subject an 8-year-old to an exam like this if you don’t ever expect to find anything?

A: As a precaution

Q: As a precaution, why?

A: Because sometimes you do.

Q: Sometimes you do, just not this time?

A: Not this time, no.

What you see there is just how a cross-examination begins to take on a life of its own—and yes, even through an expert witness. I’m not wowing her with my expertise in the area. I’m just basing the cross off of what does and does not make sense.

So let’s return to our DWI officer with Ms. Butler.

We have seen various ways this has been accomplished through leading questions—both poorly [through repeating the direct examination], and well-done, through using the NHTSA Manual and showing the deficiencies in the testing etc. So now let’s open it up to open ended questions.

Q: Why did you pull Ms. Butler over?

A: She was exceeding the speed limit.

Q: By how much?

A: By 10 miles-per-hour. She was going 75 mph in a 65 mph zone.

Q: How many other times have you pulled people over for going 10 over?

A: I can’t count. A lot.

Q: So that type of driving, 10 mph over the speed limit is something you may encounter every day?

A: Maybe not everyday but quite a bit.

Q: Did Ms. Butler do everything you asked her to do from pulling over into a safe area, all the way through rolling down her window?

A: Yes

[I would blow this up in trial to be much longer to cover step by step everything she did which would indicate sobriety. I am shortening this for our purposes.]

Q: You asked her to roll down her window?

A: I did.

Q: Did she appear to have trouble understanding you?

A: I don’t know if she had trouble understanding me or not.

[This is a typical officer answer you should be prepared for. Going back to the formula, this is something the officer would want to say. You need to learn not to just brush by this and punish the witness for saying it. The more you do, the less the witness will do it—you just make the officer slightly embarrassed. I have seen many just decide to ask the next question when faced with something like this. I refuse to do that because the answer violates the laws of nature and does not make sense if she immediately rolled down her window—thus the next question]

Q: After you asked Ms. Butler to roll down her window, did she immediately do as you said?

A: Yes

Q: So when I asked you, “Did she appear to have trouble understanding you,” and your answer was you don’t know if she had trouble understanding you or not, you do know don’t you? If she had trouble understanding you she would not have rolled down her window correct?

A: Correct

[The officer knows what the officer is up against now. The inclination to play games will slowly fade away]

Q: How soon after she rolled down her window did you smell what you call the odor of an alcoholic beverage?

[I want the jury to understand that that’s not how they speak and that’s not how I speak—I want to put distance between them and the officer and align them with Ms. Butler and I]

A: Pretty much right away.

Q: Why did you have her step out of the car?

A: The driving violation and the odor of the alcoholic beverage. She also seemed a bit slow in answering my questions.

Q: You didn’t state that in your report. Why not?

A: I guess I forgot

[If I made this paper longer, trust me, there would be much more cross here on the “I forgot” answer]

Q: Did you have probable cause to arrest her at that point?

A: …No

Q: You seemed a bit slow answering that question. Is that a sign of intoxication?

A: It depends on the circumstances

Q: How so?

A: It’s because I also smelled the strong odor of an alcoholic beverage on her.

[Kind of a draw on that answer. The officer may have gained a bit of a point, but you’re engaged in this cross so keep going. This is where we would probably address the issue of what does a strong odor of an alcoholic beverage mean versus moderate, etc.]

Q: At what point did you develop probable cause to arrest Ms. Butler?

[This is always a fun question because the answers you receive are so different]

A: After her performance on the SFSTs

Q: Then why ask her to submit to a Portable Breath Test?

A: What do you mean why?

Q: If you had probable cause to arrest after the SFSTs, why not just arrest her? You don’t do that with other crimes—I have probable cause to arrest you for Assault Family Violence but I’m going to have you blow into this device first.

A: Well, had the PBT been less than .08, then that could change things.

Q: How so if you already had probable cause? OR

Q: Did you think the PBT might have been under the legal limit?

…

[Next area]

Q: You told Ms. Butler on 2 occasions on the 1 leg stand to look down at her foot.

A: I did

Q: Why did you do that?

A: Because those are the instructions

Q: Why wouldn’t you have her look out at the horizon or straight in front of her because that is the most natural way to balance?

A: Because those aren’t the instructions.

Q: Do the instructions make sense to you?

A: Yes

Q: How so…

[Next area—personal rate of error on the SFSTs]

Q: What is your personal rate of error in giving these tests?

A: What do you mean?

Q: You often base your probable cause upon a person’s performance on these tests?

A: I base it on the totality of the circumstances

[I knew the officer wanted to say that]

Q: Other than the tests, what was the rest that went into the totality?

A: Speeding and the strong odor of an alcoholic beverage

Q: And we’ve already established that speeding means nothing when it comes to DWI?

A: Correct

Q: And neither does the odor of an alcoholic beverage being strong?

A: Correct

Q: Which leaves us with the tests?

A: I guess so.

[Don’t take that last answer…]

Q: Well is there something else?

A: No.

Q: So when I asked you, that leaves us with the tests, that’s not an I guess so, that’s a yes, correct?

A: Correct

Q: So going back to your personal rate of error officer, how many times have you determined that based on the tests there is probable cause to arrest, but after testing for breath/blood the results came back lower than .08?

[A huge question that I know many would not dare ask but what’s the downside. There are only a few possible answers:

• A: [Probably the most common] I don’t know

Q: What do you mean you don’t know?

A: I’ve never checked

Q: Do you know if anyone has ever checked, like your supervisor, your sergeant?

A: No

Q: So how do you even know if your decisions to arrest people are valid?

A: I assume they are

Q: Why don’t you go back and check your work?

A: I don’t know

• A: I know its has come back below .08 two times.

[Now you’re in a tough spot. It’s your call. Do you want to ask, two out of how many—it depends. Is this a relatively new officer? Is this someone from the DWI task force? Is the prosecutor going to gamble by re-directing with a question the prosecutor does not know the answer to. This is a total judgment/strategy call. Even if the prosecutor follows up on redirect and the answer is 40—you now have a 5% error rate and you can follow up with how many times was there not breath or blood taken to confirm the officer’s work and does the officer check every time on every case.]

• A: Zero

[Now you have a whole host of questions. Has the officer followed up every time? Is it odd to the officer that per NHTSA there is an X% chance that if there are 2 clues or more on this test and that test that the person’s BAC is above the legal limit but somehow, the officer’s scores are above the % calculations built in by NHTSA]

As this last line of questioning is more tricky, you probably don’t want to end on it. However, if you ask it in the middle of your cross and the dividends it pays are great, you may want to forego the remainder of your cross and end on that.

All of the above are fictional examples of how this can work. I will save the real world example I have for the presentation portion of this course [you should have something to look forward to]. Lastly on this topic, you should have noted other areas from the hypothetical I left open for you to begin to develop your own crosses—what about the second officer (who probably will not review the video before testifying because that officer did not administer the SFSTs—can you ask that officer what clues were observed with open ended questions. A: I wasn’t really paying attention. Q: Why not? Also, from the fact pattern, there is the additional clue on the 1 leg stand the officer conveniently omitted from the PC bust now remembers at trial. Craft your own open-ended cross based on that.]

Odds And Ends

Leading Questions

Does this mean we don’t use leading questions? Absolutely not. Leading questions are necessary tools to move a cross along and help at times in controlling a witness. They can also help you assert your knowledge/authority in front of a jury. One thing I do in murder cases involving self-defense when the Medical Examiner is on the stand is that I ask him on cross through a leading question:

Q: There are 5 types of manners of death correct?

A: Yes

Q: And those are homicide, suicide, natural, accident and undetermined correct [some may debate the undetermined one]

I ask this question so the jury and the medical examiner understand that I know what I’m talking about. In this way, the question doesn’t have much to do with the witness’s answer but more has to do with the reason for asking the question.

And, as you saw above, at times leading questions are mixed in to guide the cross and nudge the witness a particular way. This is why you must learn leading questions at the basic level so that you can ask them whenever you want at the advanced level.

Controlling a Witness

First, I rarely cut a witness off if they want to explain. I usually get twice the cross material I have if I let them explain their answers versus the credibility as an advocate I lose in not letting them explain. The jury has a way by their faces and demeanor to subtly signal to you when they are finished with the witness explaining on every answer and they are giving you permission to stop it. Just like a professional ballplayer who wants the ball during clutch time, it is your job to control the witness. Don’t ask the ref for help—don’t ask the Judge for help. Your honor, can you please direct the witness to answer the question, makes you look weak and some judges may tell you to ask a better question.

Tip 1

Break the question down to as few words as possible and use common sense to make it impossible to escape—remember the jury will know what the officer’s answers should be and every time the officer deviates from what the jury believes the answer should be, the officer loses credibility

Q: It was really cold that night?

A: I mean it depends on a lot of things.

Q: You were the first officer on-scene?

A: Yes

Q: What time did you arrive?

A: 2104 hours

Q: That’s 9:04 p.m.?

A: Correct

Q: 9:04 pm is during the nighttime?

A: It could be

Q: What was the date?

A: February 4, 2021

Q: The scene you showed up to was located in Travis County, Texas?

A: Correct

Q: If I told you that the sunset that day was at 6:10pm, would you have any reason to disagree with that?

A: No

Q: Would you agree with me that it would be considered nighttime if we are talking approximately 3 hours after sunset?

A: Yes

Q: So at 9:04pm in Travis County, Texas on February 4, 2021, it was night time?

A: Correct

Q: What was the temperature outside at that time?

A: About 35 degrees.

Q: What was the wind speed?

A: I don’t know

Q: Was it windy?

A: Yes

Q: What were you wearing?

A: My department issued coat, and full uniform

Q: Short sleeves or long sleeves?

A: Long sleeves

Q: What was on your hands?

A: Gloves

Q: Why were you wearing gloves?

A: To keep my hands warm

Q: Warm from what?

A: The cold

Q: So that night it was cold enough for you to be wearing gloves?

A: Yes

Q: That sounds pretty cold?

A: Yes

Q: Really cold?

A: I don’t know

[You got where you wanted to and the officer will be somewhat resigned]

Tip 2

Invert the Question

Q: It was really cold that night?

A: I mean it depends on a lot of things.

Q: Was it not cold?

A: It was cold

Or…

Q: Was it hot outside?

A: No

Q: Was it warm outside?

A: No

Q: What descriptive temperature word is left?

Wrap-Up

I hope this has helped. It takes practice. Where to practice—bond hearings, suppression hearings, ALR hearings. Just like anything, the more you cross, the more you will develop your own style. But I do swear by this formula. It has helped me through so many crosses—especially when you get to the part of what doesn’t make sense. If you ask me the most important takeaway, it is that you should enjoy and have a passion for what you do. If this paper makes you enjoy the art of cross a bit more, then it has done its job. I look forward to seeing you during the lecture portion.

My email address is: sbrand@brcriminallaw.com

Good luck out there!

Steve Brand

BRAND & RESENDEZ LAW

5900 Balcones Drive, Suite 260

Austin, TX 78731

P: (512) 494-4070