When you have to cross-examine a witness who is telling the truth—and is fully supported by a detailed consistent report prepared close to the time of the events he or she attests to—you’ll need to look for gaps in testimony and highlight and exploit those gaps if they fit your theory of the case.
The unimpeachable witness often will have taken a statement or noted facts without covering all the details that become legally important in the context of a trial. There’s your “in”! The theme of such an examination is the “you didn’t ask…” question.
The following pattern examination assumes that the cross-examiner’s client is charged with first-degree felony murder, based in part on the defendant’s confession. The witness—a police officer—took detailed notes of the confession. Under the law as it existed during this examination, diminished capacity was a defense to first-degree murder.
Q. Officer Gold, how much time did you spend with Mr. Heller getting him to tell you what he had done?
A. Almost 45 minutes.
Q. You took detailed notes of his statement, didn’t you?
Q. Mark this as Exhibit “1,” for identification. This 22-page document is those same notes, correct?
A. Yes, it is.
Q. Did you include in these notes all of the important points Mr. Heller made?
Q. Did you ask him quite a few questions, to be sure you had obtained a complete statement?
A. Yes, I did.
Q. Mr. Heller told you, quote: “We went to rip off some speed from Charlie, and we offended him when he tried to kick us out of the apartment”?
A. That’s what he said.
Q. Mr. Heller told you further that it was his friend, Eddie Weir, who stabbed Charles Jones 27 times?
A. He said that.
Q. “Rip off” were the exact words Mr. Heller used?
Q. Reviewing your comprehensive notes, I find no other reference to Mr. Heller’s stated reason for visiting Charles Jones’s apartment. Did he give any other reason?
A. No, he didn’t.
Q. You never asked him to explain what he meant by “rip off,” did you?
A. No, I assume he meant “steal.”
Q. I didn’t ask you what you assumed. I asked you if you ever asked Mr. Heller what he meant by “rip off”?
A. No, I didn’t.
Q. Did you know that “rip off” can mean in slang to “retrieve forcefully what is yours by right”?
A. No, I never heard that.
Q. Isn’t it true that you never asked Eddie Heller if Charles Jones owed them speed from a prior drug deal?
A. He never told me that.
Q. You missed my question. I asked if you ever asked Mr. Heller if Jones had owed them speed from a prior drug deal?
Q. In your 45 minutes with Mr. Heller, you never asked him whether he had taken any drugs before going to the Jones apartment, did you?
A. No, I didn’t.
Q. During your interview, you didn’t bother to find out whether Mr. Heller was under the influence of drugs when Mr. Jones was killed?
This is a remarkably safe approach to cross-examination, once the witness confirms that all important details are contained in her written report. Of course, it only works if the report omits important elements of the case.
Want more sample examinations for recurring trial problems like this? Turn to CEB’s Effective Direct and Cross-Examination, chap 8.
Other CEBblog™ posts you may find useful:
- Know When to Cross-Examine and Know When to Pass
- Keep Cross-Examination Short (Unless You Shouldn’t)
- When a Witness Has Selective Memory
© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.