Controlling The Witness | A Key To A Killer Cross Examination

Killer cross examination tips by Neil Rockind, author of — Controlling The Witness

Many cross examination experts implore or recommend that lawyers “keep control” of the witness during a cross examination.  Generally speaking, this is true.  Adverse witnesses that testify for the state and government often times want to testify adversely to the accused and favorably for the government.  Some witnesses will do whatever they can to hurt the accused’s case.  They will attempt to introduce additional evidence and/or prejudicial information while testifying, refuse to answer direct and simple questions and will additionally attempt to assist the state’s case.  These witnesses are potentially dangerous and must be controlled carefully.  The cross examination master, Terry McCarthy, suggests that lawyers use short declarative sentences in order to maintain control of a witness.

The killer cross examination technique that I suggest utilizes this technique, e.g., McCarthy’s short declarative statements to which the witness must agree or disagree, but involves something additional: I find sources of information that bind the witness, bind the witness to those sources of information and pepper the witness with questions that contain suppositions and declarations that he cannot disagree with for fear of sounding or seeming stupid.  The last part is key:  even the most difficult and hostile witness can be controlled if the witness is only given the choice between agreeing with the cross-examiner or looking stupid.  Let me share an example from a recent  DUI/OWI case.

We represented a young man who was accused of drunk driving, i.e., DUI/OWI, by getting into an accident in a vehicle.  What made his case unusual was that he left the scene of the accident, drove to his parent’s home nearby, parked his damaged car in a secluded spot and took out another car to go check on the activity of law enforcement.  This latter decision ultimately led to a traffic stop. Why?  The vehicle that he crashed was a red Jeep and the vehicle that he was driving to go inspect the scene was a different type of vehicle but still a red Jeep.  A police officer stopped him.  We argued that the stop was unlawful.  Our basis for arguing that the stop was unlawful was that the BOL for the vehicle involved was for 1) a red vehicle, 2) made my Jeep, 3) that had been involved in an accident and 4) that had significant front end and side damage.  The latter two factors were key:  absent those two factors, any red Jeep vehicle driver was subject to being stopped and in our opinion that is objectively unreasonable.

The day before the hearing, the prosecutor informed me that he had found a second officer, the one that actually made the traffic stop, had just found that officer’s police report and that he had interviewed the officer personally.  According to the prosecutor, this particular officer denied hearing or knowing that the vehicle involved had significant damage.  In other words, the prosecutor was informing me that the officer that made the stop was only aware of vehicle’s color and make, i.e., red Jeep, and not the factor that distinguished the involved vehicle from all other red Jeeps on the road.  Nevertheless, despite this information, I prepared my plan to cross examine this officer.  I got exactly what I wanted.  Despite the prosecutor’s warning the day prior, I actually got the officer to admit that he was aware of the BOL information that the vehicle had significant damage.

The key to this cross examination was our having obtained copies of the dispatch audio recordings via FOIA.  The audio recordings provided us with the “posts” that I described earlier to which I could tie and handcuff the officer.   We discovered that the dispatcher had provided the information to the officer that the vehicle should have significant front end damage and that she had been speaking directly to him when providing that information.  I was going to tie him to those dispatch records and get him to admit that he was aware that the involved was not just a red jeep but a red jeep with damage.

First, I locked the officer down by discussing his training and his reliance on dispatch audio transmissions.  Take a look:


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At one point in his direct examination, the officer tried to claim that dispatch had only advised him that the involved vehicle was a red Jeep.  If the officer is able to maintain this, I fear that the judge will let slide the fact that he did not confirm the most critical piece of information, i.e., that the vehicle had significant damage.  My concerns are based on recent cases that permit the police to confirm whatever information they possessed in order to justify a stop and if this officer claims that he only possessed information about the type and color of the vehicle, the judge may let that slide.  However, I decide that if my cross examination is successful that not only will I prove that the stop was not justified but I will also prove that this statement by the officer is a lie.  Accordingly, I lock him into it:

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I gave him a chance to admit that he possessed more information but he denied it.  Instead, he stuck with his direct examination claim — dispatch only told him about the color and type of vehicle — nothing more.

As a part of this cross examination, it was critical to tie the officer to the squad car number that the dispatcher repeatedly used when communicating with him.  In this case, “19-46” was this officer’s number.  As you can see, I tied him to this number rather easily.

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Now that he is locked into a falsehood, his training about listening to and relying on dispatch information and his squad car number, I start to walk him down the primrose path towards my goal by using the dispatch audio recording.  As you will see, the audio recording becomes one of the posts that I repeatedly tie the officer to in order to maintain control over him:Hroba Page 5 X

Using his conversation with the dispatcher, I get him to admit that he was advised that the vehicle was involved in an accident.  I next get him to admit that it is common for vehicles in accidents to have damage.

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After the officer concedes that automobile accidents commonly involve damage to the vehicles, I move in for the kill, i.e., “that in this case he knew that the distinguishing factor that separated all red Jeeps from the involved red Jeep was vehicle damage”, the very fact that he denied knowing on direct examination.  To get him to admit it, I tie him to another post:

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Having played the tape, he was forced to concede that the dispatcher provided him with information that the vehicle had heavy damage and that he knew it.  Here is how I did it — up to this point, the dispatcher had revealed the following facts: 1) a vehicle was involved in an accident and 2) it should have heavy damage.  After listening to the tape several times, I realized that the dispatcher had not described the type of vehicle.   More importantly, the officer himself, “19-46”, upon hearing that  a vehicle involved should have heavy damage too must have realized that there was no description of the vehicle and so, he asks the dispatcher for the vehicle description.  I decide to tie these pieces of information together to force him to admit that he knew that the involved vehicle had heavy damage and that he was inquiring about the described vehicle.  It worked:

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As you can see, by this point, he was forced to admit that he heard the dispatch about the vehicle with heavy damage and that after hearing that dispatch information, he inquired of what kind of vehicle was involved.  The fact that he inquired, allowed me to 1) loop the heavy damage dispatch several times and 2) tie him to it.  Clearly, since he questioned about it, he could not deny hearing it…and he despite his direct examination testimony and his claims to the prosecutor, he did not:  he admitted that he was aware that the vehicle had heavy damage.

When the officer testified to this fact, the prosecutor looked startled and surprised.  No doubt he was wondering how the officer did not mention heavy damage knowledge in his report or in his direct and even went so far as to claim that he did not know about the heavy damage and then within a matter of minutes into my cross examination, he admitted it.  As you can see, I asked tight questions that tied the witness to his training and his dependence on dispatch information.  After he admitted being trained to listen to dispatch audio transmissions, relying on dispatch audio transmissions and hearing the dispatch audio in this case, he found himself painted into a corner:  he’d have to deny his training, deny hearing the dispatch audio and most importantly, claim to only have listened to one part of a transmission that he personally responded to.  Once I led him down that path, he had no choice but to admit that he was informed about the heavy damage and that he was aware of it prior to the stop.

Controlling a witness with short questions, having a goal when you start a cross, having a plan of attack and tying the witness  to posts, e.g., writings, audio recordings, and the witness’ desire to not look foolish, are all important parts of a killer cross examination.