an introduction to cross examination is one of the few rights with constitutional status right to...

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

04/20/23 2J. 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.


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


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.



Goal is Reasonably Achievable


Each Question

Progresses Logically

Towards a Goal

Each Question


Towards a Goal

Leading Questions

Only

Leading Questions

Only

Only 1 New Fact Per Question


Make a declaration with a question mark


Without holding a big sign with a question mark?

Lower your VOICE


Would You Could You


“so” Isn’t it true Wouldn’t you agree Is it fair to say

You were pretty far away

04/20/23 J. C. Lore – Rutgers Law 10

Dr. Seuss If more than 1 fact you

▪ Don’t know what the witness is agreeing or disagreeing with

▪ Invite argument


Develop 4 leading questions about the object that the person sitting next to you is holding.


We have mastered the first two corners




Each Question


Towards a Goal

Each Question


Towards a Goal

Leading Questions

Only

Leading Questions

Only



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.


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


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.


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


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.

04/20/23 J. C. Lore – Rutgers Law 19

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!


But How Do You Structure Those Questions?


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.


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.


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.


6. Build some questions around your points. Make the questions seem consequential▪ 2 approaches


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.


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.


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


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


Witness answer: “If you say so” Response: “What I say doesn’t really matter”

“I guess” “This is far too important to guess”


J.C. Lore- [email protected] or 856-225-6222

04/20/23 J.C. Lore - Rutgers Law 31

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