An Introduction to

 Cross Examination is one of the few rights with Constitutional Status  Right to confront and cross examine is embedded in the Sixth Amendment 10/18/20152J. C. Lore – Rutgers Law “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”

 Cross Examination is the single most important tool to achieve this.  BUT  It is the most difficult skill to master ▪ Many people think it takes at least 20 jury trials to get minimally competent ▪ At the rate of current trial practice, few people in the country have that opportunity. 10/18/20153J. C. Lore – Rutgers Law

 You may hear that CX is something that is done on the fly  That you can’t really plan a CX because you don’t know what is going to be said on direct  Nothing could be further from the TRUTH 10/18/20154J. C. Lore – Rutgers Law

 Not planning  Waiting to hear the testimony on direct and repeating it  Picking at isolated facts  Arguing  Scoffing at witness answers  Approach only reinforces opponents case:  This type of CX usually reinforces the opponent’s case by following their structure and information. 10/18/20155J. C. Lore – Rutgers Law

10/18/20156J. C. Lore – Rutgers Law Goal is Reasonably Achievable Each Question Progresses Logically Towards a Goal Leading Questions Only Only 1 New Fact Per Question

 Make a declaration with a question mark 10/18/20157J. C. Lore – Rutgers Law

 Without holding a big sign with a question mark?  Lower your VOICE 10/18/20158J. C. Lore – Rutgers Law

 Would You  Could You 10/18/20159J. C. Lore – Rutgers Law

 “so”  Isn’t it true  Wouldn’t you agree  Is it fair to say  You were pretty far away 10/18/2015J. C. Lore – Rutgers Law10

 Dr. Seuss  If more than 1 fact you ▪ Don’t know what the witness is agreeing or disagreeing with ▪ Invite argument 10/18/201511J. C. Lore – Rutgers Law

 Develop 4 leading questions about the object that the person sitting next to you is holding. 10/18/201512J. C. Lore – Rutgers Law

 We have mastered the first two corners 10/18/201513J. C. Lore – Rutgers Law Goal is Reasonably Achievable Each Question Progresses Logically Towards a Goal Leading Questions Only Only 1 New Fact Per Question

 Support your theory  Have the witness agree to facts that support your case  When an opponent’s witness supports your theory/picture of the case, you now have an edge. 10/18/201514J. C. Lore – Rutgers Law

10/18/201515J. C. Lore – Rutgers Law

 2 ways: (One usually more successful than the other)  Limiting and discrediting testimony: ▪ You are not challenging the integrity of the witness ▪ Just their ability to observe and remember  Attacks Credibility – impugning their ability to be truthful ▪ Much harder and riskier – If you fail, you can lose a lot of credibility ▪ Jurors don’t want to believe that people are liars ▪ Bias, interest, motive to fabricate 10/18/201516J. C. Lore – Rutgers Law

 If you can’t ask a question that supports your theory, attacks the opponent’s theory, or attacks the witness what should you do?  Legs and Butt Cross  Trials have been won by not asking questions. 10/18/201517J. C. Lore – Rutgers Law Shhhh!!!

 Must understand limits  Going on aimlessly loses the attention of the judge and jury  Not pulling it off could be very damaging  Better have a good shot at success otherwise you just add to the clutter 10/18/201518J. C. Lore – Rutgers Law

 The sun came up at 6:00 a.m.  Perry Mason Moment: You will go your entire career and probably not have many of these moments. 10/18/2015J. C. Lore – Rutgers Law19

 The one you have been leading up to  What if you don’t know the answer:  Don’t ask a question to which you don’t know the answer if there is any answer that can hurt you.  Save it for closing! 10/18/201520J. C. Lore – Rutgers Law

 But How Do You Structure Those Questions? 10/18/201521J. C. Lore – Rutgers Law

 6 steps for case analysis  1. Good facts and bad facts ▪ Facts that are essential to your case ▪ Facts that are essential to opponent’s case  2. Rank the good and bad facts ▪ Understand the source of that information in determining the strength of those facts. 10/18/201522J. C. Lore – Rutgers Law

3. Decide on your theory ▪ The structure of every CX is driven by your chosen case theory ▪ If you have the type of CX that follows 2, 3 or 4 theories, it is confusing to the judge, jury, and not well executed 4. Re-Rank the good and bad facts based upon your chosen theory. 10/18/201523J. C. Lore – Rutgers Law

 5. Order persuasively  Primacy and Recency ▪ Judges and juries remember what they hear first and last ▪ They are awake for what they hear first ▪ And wake back up to hear the ending ▪ Put your strongest points at the beginning and end. ▪ Have the support for your points clearly identified and ready to use ▪ Supportive Cross – getting the witness to give you the facts that support your theory ▪ Destructive Cross – Asking questions that discredit the witness’ testimony. ▪ Get supportive first  Witnesses are more credible right after direct  More likely to argue after being attacked. 10/18/201524J. C. Lore – Rutgers Law

 6. Build some questions around your points.  Make the questions seem consequential ▪ 2 approaches 10/18/201525J. C. Lore – Rutgers Law

 The more that concessions are magnified through a series of related questions, the more important they seem to be.  Example: Police report states “witness said ‘it was dark’” ▪ It was night ▪ Street light was down the block ▪ Half block away ▪ Streetlight provided little illumination ▪ You observed man in the dark  How do know the information ▪ Research/investigation/discovery ▪ Statement at the end: In case the witness disagrees. Have the statement at the end because it minimizes risk of early questions. 10/18/201526J. C. Lore – Rutgers Law

 Call it this approach because they are based upon certain tenets of morality, duty, responsibility, and love of family.  These questions add more power to your points and increase the likelihood that a witness will agree with you.  Good for you whether they answer them yes or no. 10/18/201527J. C. Lore – Rutgers Law

 Your question probably stinks  Repeat the question  Walk towards while repeating  I am sorry, but...  Turn your question around and make it a negative  So the answer to my question is yes  Go to the judge as a last resort  Sign of weakness 10/18/201528J. C. Lore – Rutgers Law

 Generally, don’t do it  If you need to, use body language like the hand up  If witness runs on, it is probably a bad question 10/18/201529J. C. Lore – Rutgers Law

 Witness answer: “If you say so”  Response: “What I say doesn’t really matter”  “I guess”  “This is far too important to guess” 10/18/201530J. C. Lore – Rutgers Law

 J.C. Lore- or 10/18/2015 J.C. Lore - Rutgers Law 31