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Cross-Examination Steps for the Criminal Defense Attorney

Cross-Examination is the single greatest tool available to the defense attorney. How do you make the most of this golden opportunity to expose weakness in the case against your client?

It’s all about controlling the witness.

Before you step foot into the courthouse:

1. Good Investigation: The greatest tactical advantage available to the defense is information. Good, solid investigation helps to refine your story, your narrative about what happened in a particular case. How do you do this?
Recorded or written statements.
Prior sworn statements in a search warrant.
Prior testimony of a police officer who will testify at your trial.
Visual Media: Maps, satellite photos, crime scene photos.

Jurors expect to see a show, a presentation. William Weinberg believes that a jury needs to feel the story, to process it visually and mentally. Using media to drive home points can make the difference between victory and defeat.

2. Pay attention to testimony:

You never know when a witness will deviate from the expected story and throw you a bone. You must know the case so well that you can assimilate and integrate that new information and use it against the witness on a moment’s notice. Conversely, should something favorable to your side come out, be prepared to capitalize on it, too. Get the witness to expand upon it, if possible. This helps the jury assess the importance of the information, a gain that will be lost if you simply move on to another question.

3. Make the prosecution witness work for you:

Frequently, we cross examine police officers. They are trained witnesses, testifying almost exclusively for the government. Whenever possible, it’s helpful to get the police witness to agree with as many underlying facts and conclusions as possible. This has the effect of setting them up as “unreasonable” should they decide that they don’t want to cooperate any longer and attempt to hedge their testimony. Especially in gang cases, whether murder, attempted murder, carjacking, kidnapping or large narcotics cases, the gang officer has vast courtroom experience, but nearly always works off a “script” and when asked to deviate from it, can become hostile, annoyed or plain confrontational.

More later on this subject.