Creating Something From Nothing | Killer Cross Examination

It happens many times.  I sit down and start reading through police reports in the case and the case looks bleak or there appear to be too few issues for us to challenge.  I look at the case from different angles and perspectives and still see very little.  This has happened to every lawyer.  Some admit it.  Some don’t.  However, it is at these moments that the great lawyers separate themselves from the pack — they create something from nothing.

Young lawyers want to know, when they reach these points:

What should they do?

How do good lawyers get past those points and moments?

How can they learn to do it?

These questions are not easily answered.  Some lawyers learn how to handle these situations and some don’t.  However, make no mistake about it … in these moments you must create something out of nothing.  You must look past the words on the page, imagine what was happening and taking place, imagine whether what the police claim they observed is in fact reliable or is what you imagined occurring more believable.  Make no mistake about it, I do not mean lie … I mean be creative:

“see what is there to be seen but that which is not obvious.”

Once you imagine a strategy, you’ve got to bring it to life and there is no surer way than by using a killer cross examination. Let me show you an example from a case that Rockind Law handled and won where the police reports seemed bleak but I saw what was there to be seen but that which was not obvious and then used a killer cross examination to bring it to life.

In this case, our client was caught with pounds of marijuana in a backpack in his car.  What was particularly troubling was that the cop claimed that our client made damning admissions during the traffic stop.  What’s worse?  The traffic stop and encounter was recorded and … our client did make damning admissions to the officer.   While our client was talking to the officer, he was not in handcuffs, was in his own car and was not told that he was under arrest.  It seemed like so many traffic stops and sad to say, our Supreme Court has already previously ruled that roadside questioning during a traffic stop does not ordinarily give rise to Miranda warnings.  Except when I watched the squad car video, I noticed that from the start, the officer ordered our client to keep his hands outside the window of his, an extremely unnatural position.  Worse, after playing and replaying the video, I captured one moment where the officer “threatened” our client with physical action if he moved his hands.  I decided to attempt to turn these facts into a claim that our client was “detained”, “in custody” and thus interrogated by the officer without the benefit of Miranda.  Take a read:

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Notice how I took two (2) simple details, (1) the officer ordering our client’s hands to be outside of the car window and his not having access to his hands to do even the simplest things, e.g., rub an eye, scratch an itch, and (2) the officer’s threat (on video/audio) when our client started to gesture towards his bag, and weaved them into a comparison to “custody”, “the functional equivalent of being handcuffed” and his “freedom of movement being deprived in a significant way.”  As a result, the damning statements that came during that period of time were excluded as the product of “custodial interrogation” without Miranda warnings.

The next time that you’re struggling with a case, take a step back and think outside the box.  You have look past the words and see what is not easily seen or readily apparent.  Once you do, use a killer cross examination to bring that strategy to life.

About Neil Rockind

Neil Rockind is a criminal defense trial lawyer with Rockind Law, a Michigan law firm that handles only criminal defense cases.  Neil Rockind has been awarded nearly every award and honor given out to lawyers, including being named a Leader in the Law, a Super Lawyer, the Best of Detroit, a Leading Lawyer and among the Top 10 Criminal Defense lawyers in the state.  Neil Rockind is also the WDIV-TV legal expert commenting on legal issues and is often sought out for commentary by radio and newspaper reporters.  Both Neil Rockind and Colin Daniels, attorneys with Rockind Law, have been named Super Lawyers by Thomson Reuters.