Anticipating A Witness’s Testimony And The Setup Of A Witness’ Testimony Where Physical Evidence Or Logic Contradict The Witness’ Testimony | Killer Cross Examination
A key component of a killer cross examination is to identify and isolate moments where a witness testifies to a fact that is contradicted by physical evidence, photographs and/or common sense and logic. While some lawyers choose to cross examine a witness without regard to the witness’ testimony (yes, there are several lawyers who actually believe that cross examination should ignore a witness’ actual testimony, as hard as that is to believe), the killer cross examination embraces the witness’ testimony. In fact, we want to lure the witness into trapping himself in a corner where we can, once trapped, spring on the witness tangible physical evidence or impeach them with the absurdity of their position/testimony.
In this approach to cross examination, opportunities to lock a witness into these traps for later use at trial are opportunities not to be ignored but to be seized. This means that preliminary examinations, i.e., hearings where the defense can subject witnesses to cross examination, are vital and valuable. While some lawyers approach these hearings neglectfully, merely tossing out questions that sound like a regurgitation of the prosecution’s direct examination (e.g., “so the accused walked in with a gun?), we advise lawyers using our method to prepare for these hearings: know what your defense is going to be and what testimony is necessary to elicit in order to make the defense possible.In a recent case in which a jury acquitted a client of ours of cocaine and weapons charges, we used the preliminary examination and the killer cross examination method to setup the state’s key witness. At trial, relying on a killer cross examination, we were able to convince a jury that an entire unit of the Detroit Police Department Narcotics Unit were unreliable and untrustworthy. In fact, after our the cross examinations of the police officers at trial, the prosecutor argued to the jury just that: “in order for you to find the accused not guilty, you’d have to find that this entire unit of the Narcotics Unit, was lying.” The jury agreed and found our client not guilty.
At first glance, the police officer’s claims were typical for a drug case following the execution of a search warrant at a residence. The police claimed that they obtained a search warrant, executed the warrant, found the accused within the home, searched the home and found a large quantity of cocaine, money, weapons and items with our client’s name on them within the same room. To them, the case seemed complete. Open and shut. However, I knew that if we played our cards right, developed our evidence, and trapped the officers into certain testimony at the preliminary examination, I’d prevail at trial.
Trap One – The Nighstand
The searching detective claimed that he went upstairs within this home, observed a bed and on a nightstand next to the bed, he observed two photographs of our client and some friends. Those photographs sandwiched a handgun on top of the nightstand. He claimed to have found the cocaine, money and mail with his name and that address on it in a drawer of the nightstand. If believed, this was damning evidence — the whole of the case (guns and drugs) could be proved by the state within a a matter of a few inches, i.e., the dimensions from the photos to the bottom of the drawer. However, I knew something that they didn’t know — there were no nightstands next to the bed. Next to the bed were end tables — glass table tops with a metal base, not wooden nightstands with drawers. We laid our trap.
Here is a key issue in a killer cross examination: you need to understand what the witness will likely say and what the witness will want to say. Once you understand or can anticipate what the witness will want to say, e.g., a laboratory technician will want to make the laboratory sound scientific and proficient, you can begin to develop a killer cross examination. Because the cop was lying, I anticipated that he’d want to show us all how strong his memory and perception was. If I was right, he’d play right into our strategy. So, we lured the cop in — I gave him enough room to expand on the details about the nightstands that he seized the drugs from. I mean after all, how could he not remember the appearance and makeup of something that he described in his police report and where he claimed to have found drugs, a gun and money? He was all too willing to give me details about the nightstands that, unknowing to him, trapped him into a corner:
Here is what the tables next to the bed actually looked like:He was trapped. He had testified that the tables were wooden with a single drawer — the photographs that I possessed revealed otherwise. At trial, I would crush him with this contradiction — that we set up.
There were more traps to lay however. One of the ways that we anticipated that the cop would attempt to wiggle out of this damning situation was to attempt to claim that the conditions of the room, i.e., the type of furniture in the room, at the time of the raid did not match our photograph but instead matched the officer’s description. We needed to cut this potential claim or loophole off before they attempted to utilize it. This was the second trap.
This trap involved committing the detective to several different things, including the absence of photographs and/or other witnesses to the condition of the bedroom, furniture or the location of the drugs. In order not to signal out purpose in pursuing this line of cross examination, we chose to pursue it later in the cross examination rather than on the heels of the cross examination identified in “Trap 1.” So later in the cross examination, I discussed photographs and the absence of photographs. The detective had no idea that at trial I would use the testimony to totally undermine their case. Let me explain:
I committed the detective to the absence of photographs of the room, furniture, gun, photographs on the nightstand, nightstand, drawer, cocaine, money and/or mail with his name on it. He arrogantly walked into this testimony because he believed, from his own experiences, that he would have no trouble carrying the ball from the state and thought that his testimony alone was sufficient. When he testified to the lack of photographs, he had no idea how we intended to use this omission at trial. This was another setup.
At trial, months later, we pointed out the absurdity, i.e., lack of logic, of the absence of photographs of the alleged location of the drugs, money and guns. Having committed the officer at the preliminary examination to the absence of photographs, I pointed out how absurd this was given the circumstances and readily available means of capturing photographs. Peolple take selfies, pictures of food, non-events and events that happen spontaneously on a daily basis. Yet, here the police claim to have found “the entire case”, e.g., photographs of the accused within inches of a gun within inches of cocaine within inches of money and on top of proof of residency or possession, i.e., mail with his name on it, and not a single photograph was taken. Consider that, if the detective is to believed, the case was gift-wrapped: all that was missing was a bow.
At trial, I exploited this fact and omission repeatedly. It was “illogical” and denied common sense that not a single officer had taken a photograph of this “gift-wrapped” case. In essence the only thing missing, given the officer’s claims, was a name tag:
There was another loophole that we wanted to close off as well: that another officer had seen the drugs, guns, etc in that location. None of the reports indicated that another officer had gone upstairs but that didn’t prevent one of them from claiming that they too observed the evidence in the bedroom. A killer cross examination attempts to close those loopholes and we did.
I anticipated that the officer would want to fight with us on this point and would try to leave himself as much room to “fix” things later by having a fellow officer claim to have also observed the drugs. It was important to lock this down at the preliminary examination. Had he claimed that another officer observed it, I would have called that officer to reveal the original officer was lying. I was certainly not going them a chance to conspire or coordinate after the hearing and before the trial: a killer cross examination anticipates these issues and deals with them immediately. That is what I did. Here is a portion of the cross examination locking the detective in on the absence of another witness:
You see that the officer tried to keep the loophole open: “there were other officers searching and going up and down.” I wouldn’t have any of that — I knew what he was trying to do so I pursued it. I told him that I didn’t want to leave things that ambiguous and that we needed to lock it down. I returned to his report which did not contain a reference to “showing another officer” and then once he agreed, I pursued locking him in and cutting off the loophole one more time. While he agreed that he didn’t bring another up to look at it, he continue to resist and fight on this point. Ultimately, by not giving up, he gave in — he admitted that he did not bring another officer up to the room to see the drugs, gun and nightstand. I knew that he was now locked in for trial. The killer cross examination had reduced the case to this officer’s testimony alone about the location of the drugs.
As I indicated earlier, when you are conducting a killer cross examination, feeling out the witness and getting a sense of how willing the witness is to go to support his/her testimony is vital. This ability to understand others is not easily taught or learned. Some lawyer training groups believe that you just “throw things out there” without concern for the witness’ testimony. That is not a killer cross examination. A killer cross examination, at least the type that I employ, involves feeling out the witness and then attempting to get the witness to hang himself with his own words. The third trap that we laid for this drug cop did just that — I believed that he couldn’t resist telling us how thorough his search was and that if I played my cards right, he’d claim to have searched rooms in the house that didn’t exist. I did just that — I got the detective to admit that he searched a bathroom in the home that did not exist.
I lured the cop in with my earlier cross examination about the nightstands. At the conclusion of that testimony, he must’ve felt like he was on a roll. He believed that he was describing the nightstands well, the prosecutor was not objecting and there was no one to rebut or undermine his testimony so he thought. So, when I gave him an opportunity to describe additionally just thorough his search of the home/area was, he couldn’t resist … took the bait:
Q: I don’t know what order you did it, [but] at some point you went and searched the upstairs bathroom, right?
A: That was connected to [the bedroom].
In his zeal to appear thorough and as though he had a terrific memory of the home and his search of it, he claimed to have searched a bathroom connected to the upstairs bedroom. Yet, this home was a bungalow: there was no upstairs bathroom. We had photographs of the interior, a video of the interior and witnesses who had been in the home before and after the raid to attest to the fact that the room. Also, as a bungalow, had a bedroom been upstairs, it would have been added to the home and show up on the exterior. It did not:
Combined with witnesses who would testify at trial, photographs of the interior that we would admit at trial and the photograph of the exterior showing no additions to the upstairs of the house consistent with an added bathroom, we believed that we had trapped the detective even further.
In the end, by anticipating what the witness would say and want to say and by laying traps for the detective that he walked into, we injected serious doubt into the state’s case that we could develop on and exploit during the trial with evidence and logic. These are just two (2) features of a killer cross examination but ones that must be mastered by the trial lawyer in order to maximize the opportunities that cross examination oppose.