Direct & Cross Examination in Criminal Cases Presented by Joseph Passanise Solo and Small Firm Conference June 11, 2010

O VERVIEW 1) Vision 2) Direct in Criminal 3) Focus on Cross in Criminal 4) Practical Tips

O PTIONS FOR J URY 1) Guilty 2) Not Guilty 3) Not Sure

V ISION  Theory of Reasonable Doubt  Direct and Cross Examination to Support Theory of Innocence

V ISION 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

S UPPORTING Y OUR T HEORY OF I NNOCENCE  Prove Facts Supporting Theory  Impeach Prosecution Case  BUILD CREDIBILITY

D IRECT E XAMINATION 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?

D IRECT E XAMINATION 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?

C ROSS E XAMINATION IS A S KILL & A RT Build Credibility

V IDEO

C ROSS E XAMINATION Bias is Never Collateral! 1)Davis v AK, 415 US 308 (1974) 2) State v Hedrick, 797 S.W. 2d 823 (MO App. 1990)

C ROSS E XAMINATION 1) Right to Present a Defense 2) Right of Confrontation Character Assassin!

T HEMES FOR T HEORY OF I NNOCENCE 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

C ROSS E XAMINATION 1) One Fact 2) Evidence From Witness 3) Build Towards Theory 4) Listen to the Answer / Use

C ROSS E XAMINATION 1) Law Enforcement 2) Lay Witness A.K.A “Little Helpers” 3) Expert Witness 4) Child Witness

P OLICE O FFICERS C AN H ELP 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

L AY W ITNESS 1) Bias 2)Inconsistent Statement (Chronology) 3) Don’t Argue 4) Control the Flow

E XPERT W ITNESS 1) Pick a Point or Two and Hit Hard 2) They Will Always Want to Explain 3) Get them Off Stand

C HILD W ITNESS Please don’t make me cry!

Siblings Friends Grand- Parents Juvenile Officer Police Officers Sunday School Teacher Minister Teacher School Nurse Doctor Counselor (Psychologist) Child Advocacy Center DFS Step Parents The Iron Curtain

B ENEFITS OF P REPARED C ROSS  Benefit of Doubt from Court  Builds Credibility  Jury Pays Attention to you!  Limits area of Re-direct?

S OME R ULES OF E NGAGEMENT 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

S OME R ULES OF E NGAGEMENT 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!

W HY D ON ’ T W E U SE O PEN -E NDED Q UESTIONS IN T IME Because… 1) Lose control over witness 2) Don’t always know answer 3) You will get CONVICTION ASSURING ANSWERS!

P RACTICAL T IPS 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

P RACTICAL T IPS 7) Use Subpoenas 8) Inconsistent Statements Destroy Witness Credibility

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