Fun Friday | Two Excerpts From A Masterpiece Cross Examination Of A Seasoned Cop

In a racketeering and criminal enterprise case involving four (4) top lawyers, it fell upon me to cross examine the cop that was the centerpiece of the state’s case.  I knew that was my purpose in being in the case and I made sure that I rose to the occasion.  The clients and lawyers were counting on me and I was going to deliver.  This is an Excerpt from the Cross of Gray, my cross examination that assisted in obtaining a dismissal in a high profile racketeering case.

In this segment of Killer Cross Examination, you should notice two (2) things:  my calling out the witness’ physical reaction to questioning and his ultimate reaction when he was cornered and realized that I had trapped him.  These are keys for developing a killer cross examination.

First, witnesses testify with more than just their words — they physically react.  Prosecutor’s call out when a witness uses his hands to show a distance or an angle but there is more to be put on the record than angles, etc.  One can do what I did and that is — call out the witness’ physical reaction to testifying.

In the Cross of Gray, the penetrating nature of the cross examination caused the witness to tremble.  We all saw it and I wanted the record to reflect it.  So … I made sure that it did:

Bill Gray Trembling

Notice how I literally called him on his physical reaction.  He was trembling from the pressure that the questions placed on him and I wanted the record to bear that out.  This is important and too many lawyers don’t do this.  Instead, they’d remember it but never record it.

Additionally, sometimes you trap a witness to such a degree that they utter something that leaves a lasting impression — an admission if you will that they’re done, cooked, etc.  When a seasoned cop utters the word “shit” at finding himself in a trap, you know that he’s cooked.   This happened in this excerpt of the Cross of Gray:

Bill Gray  - Oh Shit

The witness was cornered.  He had literally been trapped in a corner where I had pointed out that his conduct was “a wink” to our client to continue to operate his business and that, contrary to his testimony, he didn’t want to bust him.  When he realized he was cornered, he admitted it and then uttered the unthinkable

….. shit.

Killer cross examination is effective and fun (particularly when you make them tremble and swear on the witness stand.)

Enjoy the Dream Cruise.

Neil Rockind

Establishing Bias Of An Informant With Active Listening – In The Moment

I’ve always preached that you have to be “in the moment” when cross examining a witness.  While its okay to have notes and an outline, you must listen to the witness in real time and react to what he/she says.  In a recent case in which I cross examined an informant, the witness let slip a single word, “we” during my cross examination of him.  This single word revealed just how biased he was.  More importantly, I caught it because I was listening and I used it as a dagger against him and the state:

Establishing Bias - Informant

Notice how he uttered the word “we” while trying to explain something:

… they have a protocol just like we did

I heard it and I pounced:

Q: When you say “we”, you’re referring to the police department?

A: Yes.

Q: The people you were working with?

A: Yes.

Q: You’re (sic) partners in this case?

A: Yes.

With the utterance of a single word, “we”, I got the witness to admit that he and the police were partners.  Partners!

This was only possible because I was listening to the testimony and reacting in real time.  This is killer cross examination.

A Killer Cross Shakes A Witness Up 

Recently, I conducted a cross examination of an experienced police officer that literally “shook up” the officer.  You don’t have to take my word for it: after he finished testifying he sulked over to a conference room and complained to two other officers about feeling “shaken up.” One of the officers to whom he complained later testified about the officer’s complaint about being shooken up by my cross examination:

Several times, the officer complained to the detective that he was shaken up and the detective admitted it unde oath. Only a killer cross examination can actually have that much impact on a witness. 

Later, the detective explained the impact further: the killer cross examination caused him to feel penned in. The officer felt like things he thought were black and white became grey: 

Later, the detective actually testified about the killer cross examination in a way that reveals how challenging it is for police officers to handle: the detective wants me to teach cops how to handle my cross examination style: 
It’s hard to find a cross examination style and cross examiner that is so effective that it shakes up a witness and causes another to ask the lawyer to teach cops how to deal with it.  As you can see, even the judge acknowledged the effectiveness of my style. 

Stay tuned for more cross examination tips by Neil Rockind of Rockind Law. 

Punch Them In The Face | Right Back At ‘Em Cross Examination Of An Expert

 

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He had just finished testifying for the prosecutor, offering an opinion that a certain amount of marijuana was being possessed for sale and delivery purposes rather than for personal consumption.  His reasoning was circular:

It was the quantity.  The amount.  Mostly the amount.  What about it? Well, the amount…

He continued to repeat that as though repeating it made more true.  When it was my turn to cross examine, I wanted to go right back at ’em with a “Punch Them In The Face” killer cross examination.  And that is just what I did …

Before he even settled in for my cross examination, I started in about “the magic number.”  He seemed startled and caught off guard

Good, I thought.  This isn’t going to be some namby-pamby cross examination.  This is a killer cross examination.

My questions about “magic number” were direct and a verbal

Punch in the face

Rockind - Magic Number Cross

Notice how I wasted little time in going after him and his incessant reliance on “quantity.”  A Killer Cross Examination can feel like death by a thousand cuts with a slow, methodical destruction and dismantling of the witness or it can be an immediate haymaker, i.e., a punch in the face.

 

A Look At Attorney James “Jim” Amberg’s Cross Examination Of An Informant

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There’s a popular saying about how there are different ways to do something.  For example,

there’s more than 1 way to skin a cat.

In essence this sayings means that there are different ways to express the same sentiment or thought:

different people have different ways to doing the same thing and both ways may be quite effective as well.

While I have developed a style of cross examination that I refer to as “Killer Cross Examination” that is based on my style, personality and approach, there are other extremely effective lawyers that cross examine a different way.  Some are extremely effective and have the results to prove it.   In other words, my approach is not the only way to “skin the proverbial cat.”   And like an artist who can appreciate the artistry of another painter’s work, I too can appreciate the beauty and craftsmanship in another lawyer’s cross examination style.   Today, we take a brief look at my friend, James “Jim” Amberg’s style of cross examination by examining his cross examination of an informant, Marcus Harvey, in a drug/RICO trial.

About Jim Amberg

A bit about our subject, Jim Amberg, before we examine his cross examination style for while the words appear on the page, they gain more impact if you can picture the actual live examination.  To do that, we have to describe Jim a bit.

First, Jim is nothing if not energetic, passionate and excited.  Literally.   Jim is a bright light — from the moment you meet him until he leaves, he is full of energy.  Not angry energy mind you … but energy that is infectious and captivating .   I wouldn’t want Jim’s voice and energy to be the first thing I see and hear in the morning upon waking after a long night of drinking with little sleep but it is just the sort of energy that I’d want in someone who was leading me into battle or leading me my team onto the football field.  Jim’s demeanor and energy can get you fired up.

Second, Jim is funny.  He makes no apologies for his sarcasm but when he is sarcastic, he is so with a smile on his face rather than a sneer.  He almost appears to be enjoying his own humor.

Last, Jim is fearless.  I’ve seen him in court and he relishes the fight.

The Case – The Informant-Witness

With that as the backdrop, Jim was defending a young man who was accused of participating in a local gang that wrecked havoc in Detroit, Michigan.  This gang regularly participated in drug deals, handgun acquisitions, robberies and murder.  Each of the young men involved were accused of killing people at various times of their young lives.  One young man in particular was arrested and accused of participating in the gang organization.   He faced a sentence that would have likely resulted in his incarceration for life.  However, the young man decided to cooperate with the federal authorities and talk on others.  Despite several meeting with agents, he never once mentioned Amberg’s client.  Looking for an even more favorable deal, the witness mentioned Amberg’s client in a late, late debriefing.  Amberg sought to exploit the following on cross examination:

  • The witness’ own culpability;
  • The witness’ plea and sentence deal that would spare him a life sentence;
  • The witness’ involvement relative Amberg’s clients, i.e., that the witness was more involved yet was cooperating with the government against his relatively uninvolved client;
  • The witness’ omissions in earlier interviews;
  • The witness’ failure to mention his client immediately;
  • Contradictions between the witness’ story and the DEA reports; and,
  • The overall character of the informant.

Amberg did an excellent job demonstrating how incredible the informant-cooperating witness was when he cross examined him recently.  Here are excerpts:

Challenging The Witness’s Claims – Tying Him To A Post

I like to call this practice tethering the witness to a statement or “tying him to a post.”  The lawyer is in possession of a statement that the witness made elsewhere and has the ability to prove that the witness made the statement.  The witness is effectively tethered to it, i.e., admit it or deny at your own peril and be cross examined about it.  You tie him to the post.

If the witness denies the statement, he is impeached with 1) the fact that he is refuting his own words and 2) ultimately by the testimony of the person that took or heard the statement.  Here is an example of Amberg did that here:

Amberg - Cross Sample Page 1

Notice how Amberg actually uses “memory” and “denials” to emphasize the witness’ denial about that statements, eg, you don’t remember saying or you didn’t say, etc.  He is reminding the jurors that the witness’ claim is not believable.

Something else he does is pit the witness against the government agents or police officers.  By asking the witness questions like, “So, if Agent [so and so] put that in his report, he must have been wrong?”, he is directly forcing the witness to choose between contradicting himself or contradicting the agent.  When the witness indicated that the agent must’ve been wrong, the witness lost much credibility.  This is well done.

Here, Amberg discusses omissions with the witness.  Pointing out what a witness said is important but so is pointing out what a witness omits.  Here, despite sitting down to discuss others involved in crime as a part of a cooperation agreement, the witness never mentions Amberg’s client.  Amberg points this out by discussing the absence.

Here is another example of tethering the witness to a statement.

Amberg - Cross Sample 3

Amberg tied the witness or tethered the witness to another post — this time a tape recorded interview between the witness and the police.   When the witness acknowledges the interview, Amberg moves in for the kill to point out what the witness did and did not talk about.   As you can see, this is not the first time the witness has ducked what he told agents in those interview sessions.  First, he denies making certain statements in an interview, then testifies that the agent must’ve been wrong and now the witness is disputing a tape recording.  With each answer, Amberg is stretching the witness past the point of believability.

Humor To Finish Him Off

I am a firm believer in using humor where one can to make a point.  A laughing jury is not a hanging jury, an old saying goes.  Amberg is from the same school.

The witness has testified that money given to him was not for marijuana or pot.  He has testified to picnics, parties and barbecues however.  Amberg combines the two and the use of the word “pot” to point out the absurdity in the witness’ testimony and to convey what he thinks of it:

Amberg - Sample Cross 9

Did you see it?

so it might not have been pot money, it might have been potluck money

Amberg is finishing him off with humor.  The refusal of the witness to concede that the collected money by a group dealing drugs was for drugs/pot is silly.  There was no reason for the witness to deny this claim other than his desire to avoid admitting to more crime or his feeling that Amberg had made him look and sound untruthful.  Rather than admit it, he chose to sound even more untruthful.

Amberg gave him just enough rope for the witness to figuratively hang himself.  This too was well done.

The lesson in Amberg’s cross examination is simple:  use your own personality to challenge and cross examine witnesses.  Amberg does this well.  He uses wit, humor and smarts to force the witness to be his own worst enemy.   Amberg literally gave this witness a chance to tell the truth, i.e., “I needed more people to throw under the bus and so I picked on your client” and when the witness didn’t admit that, Amberg forced him to admit everything but …

Neil Rockind, Rockind Law
Criminal Defense Lawyer

Criminal Defense Attorney Rockind’s Cross Examination “Shakes Up” A Cop

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Shaken Up.  A cop reported to the officer in charge of a case that my cross examination of him “shook him up.” His description sounded like he had been “hypnotized” in a way. I kid you not!

The cross examination really shook me up.

This is one of the greatest testaments to my style of cross examination and it all happened in open court.

What happened? Here is the story:

I mentioned an exchange between a detective and me on Friday during a hearing in court. The detective was caught violating a sequestration order and was under cross examination. The following exchange (being paraphrased here until we get the transcript) occurred:

Q: you spoke with officer [name withheld]?

A: about his testimony, yes. He felt he hadn’t testified well. He felt he was misrepresented.

Q: “misrepresented”?

A: yes

Q: so he was blaming me and the questions that I asked?

A: not at all. He was blaming himself. He felt like the questions made areas that were black and white grey.

Q: he testified falsely?

A: HE WAS SHAKEN. He said that that the cross animation SHOOK HIM UP.

Q: shaken?

A: yes. I could tell that he was shaken. He said that the cross examination really shook him up. I said, “you’re normally a very competent witness. What happened?” He said, “I don’t know…”

Q: I want to follow up on this? Like I hypnotized him?

A: Mr. Rockind, you’re a very good lawyer. Your cross examination is really good. If I could, I’d have you teach a class at the police department on cross examination.
While I won’t be teaching the academy or police departments hoe to handle my questioning, I have to admit that it felt good to hear that my years of practice and focus on cross examination paid off.

While some people can learn how to cross examination, there is an art to it as well. To learn more about our firm, Rockind Law, visit Rockind Law.

Neil Rockind

Patience, My Friend – How Being Patient, Actively Listening And Cornering A Witness Reveals A Lie

Be patient, son.

How many times have I heard that phrase in my life?  How many times have I said that to others?  Many.  Likely too many to recall and too many to count.  Yes, patience is a virtue but I’m not a patient person.  However, a killer cross examination requires patience and more — it requires active listening in real time and then doggedly pursuing every attempt a witness may take to evade the question.  Some key points of this discussion:

  • be patient;
  • keep moving forward toward your goal;
  • knock down down attempts to pass like a tennis player approaching the net;
  • be relentless; and,
  • eventually, you’ll cut off the witness, leaving him nowhere to go but to answer the question.

In a killer cross examination, if you follow the above rules, what happens during the cross examination is remarkable — while ultimately getting to the goal of the cross examination, the examiner will also expose the witness as an evasive and argumentative witness.  This is a killer cross examination.

Take a look at this recent cross examination in which I cross examined a detective that took interrogated our client and made some exaggerated claims to our client during the interrogation, claims that were designed to convince our client to confess.

First, the detective told our client during an interrogation that he had researched the topic of x-rays and the procedures involved.  This was a lie that I wanted to expose:

Sommers  Cross - Blog 1

The detective equivocated so I forged ahead, patient but relentless:

sommers - Cross Blog 2

Notice how he starts to backtrack and stammer.  His claim that he had researched x-ray procedures and talked to professionals quickly becomes something informal and imprecise.  Notice how the detective tries to answer the question about “naming” the professionals with something else, i.e., information about procedures and processes that he thinks will hurt my client.

I was patient.  I continued moving forward asking him about his official investigation.  He must’ve realized that he was in trouble and now he’s backtracking, flailing his arms and equivocating.  Notice how I don’t bite — “its either a part of your investigation or not?”:

Sommers Blog - Cross 3

Not only was I proving that he had lied to our client but do to his answers, he was proving himself to be untruthful.  Quite honestly, he’d have been better saying, “I lied to your client” rather than this smorgasbord of answers.  The killer cross examination exposes this evasiveness — focusing on each effort at being evasive as we march towards our original goal.

In the interrogation of our client, he claimed that he had talked to “x ray people” but a moment ago, he said it was only a “person” so I pursued that difference:

Sommers- Cross Blog 4

Notice how unbelievable his answers are:  people vs person, lack of memory of the month, lack of memory of the day and nothing notated in his reports.  I intended to damage his credibility but this damage is self-inflicted.  Of course, when a witness is willing inflict more damage on himself, I’m going to let them.

I start to tie his non-answers and contradictions together to make the point:

sommers - Cross Blog 5

Notice how he continues to backtrack.  He tries to deny it was research but is trapped with his own words.  Caught, he dives into the answer head first — like a guy jumping on a grenade:  “I was satisfied with it.”  So I reminded him of the original topic, his lie about “research”:

Sommers - Cross Blog 6

I could’ve let it end there but his self-serving explanation that he’s trying to be forthright can’t stand.  Its obvious that he’s not but I wanted to underscore the point.  I keep turning up the heat, exposing the evasiveness and using his evasive answers against him:

sommers Cross Blog 7

As you can see, my patient and persistence was paying off.  He has characterized his “research” as a nearly happenstance encounter with someone in the hallway.  I take his answers and tie them to what he did and did not tell our client.  Notice that where in the beginning, I had a point to make about “research” he has now given us more than just a lie about “research” but a series of contradictory, nonsensical, evasive answers.

In the end, notice how on one topic, whether he actually lied to our client about doing “research” in to x-ray positions, he refused to concede that he in fact lied or overstated that fact.  It would have been a bit painful for him but the cross would’ve exposed that one point and only that one point but he would’ve gotten credit or scored some points for being “honest” and admitting his shortcoming.  Rather than doing that, he tried to evade and argue — kind of like someone trying to thrust and parry while falling down in a losing match.

As you can see, I was determined, persistent and patient in getting to my objective on cross examination.  Along the way, I capitalized on his evasiveness and combativeness.  By following these techniques and samples, you too can conduct a killer cross examination of a critical witness — just be patient.

DUI Cross: The ABC Test Is Ridiculous

For years, police officers have used the “ABC’s” or alphabet test as a means of drunk driving or intoxicated driving detection. Cops can be heard doing the following: 

Say the alphabet from A to T or say but don’t sing the alphabet. 

There is no science behind this test as a means of detecting drunk driving.  None at all.  It is unscientific and subjective: the rules change with each giving is the test.  Despite these shortcomings, some lawyers don’t know how to cross examine a police officer that still uses this test. 

Here is my killer cross examination of a police officer using this subjective test.  Pay attention to how I did the following:

  • Set up the lack of science;
  • Setup the test as subjective meaning that there are no guidelines for how to score it; and,
  • Tie that to the case. 

Here is how I did it recently:     

     
  
  

 Notice how I got the officer to concede that it was not scientific and that it was subjective and then proceeded to ask him how our client did on this “subjective” test.  By the time I concluded this section of the cross examination, I had proven that

  • The officer used an unscientific test;
  • Knew it was subjective and unscientific; and,
  • Despite the unfairness of it, our client did the test well. 

In other words, we undermined the field sobriety investigation and created doubt that our client was jntoxicated. 

Stay tuned for more examples of killer cross examinations on www.killercrossexamination.com.

Challenge The Interrogator With A Killer Cross Examination

The Reid Method works. The Reid Method is an interrogation technique developed by John Reid, a former polygraph examiner, who devised a system of interrogation that increases the likelihood that a suspect confesses. Unfortunately, like a fisherman using a tightly knitted net, the Reid Method obtains confessions of people who are innocent too.

How you might wonder? Because Reid is a form of extreme psychological manipulation. It increases the anxiety someone feels maintaining their innocence and gives the suspect relief from that anxiety by confessing. In a few hours, the Reid Technique turns people’s defense mechanism’s upside down and inside out.

Few lawyers have studied it. Few are comfortable cross examining an interrogator. I have studied confessions and interrogations and Reid. I have been hired by clients AND other lawyers to cross examine interrogators and cops.

Cornering the interrogator and exposing the technique and it’s our purpose is critical to effectively cross examine. Here are some examples:

Physical Space:

In a recent cross examination, I exposed the officer’s deliberate attempt to create an intimidating physical space for our client:

Q: you try to increase the anxiety associated with a denial and decrease the stress associated with an admission?

Q: One of the things that you do is you position yourself physically in the room?

Q: The room had no windows?

Q: It had a table against the wall?

Q: Four chairs?

Q: you directed to [the accused] to a chair?

Q: in the corner of the room?

Q: up against a wall?

Q: he didn’t choose to sit there?

Q: you directed him there?

Q: there was another chair that was on the other side of the table?

Q: yet you sat in chair closest to him?

Q: then you moved your chair to within 2 feet of him?

Q: cornering him physically?

Q: at one point, you were so close that you kicked his legs and feet?

When he tried to deny some of the details, I introduced still photographs of the proximity of the detective and our client to show how the detective positioned himself and then challenged him as to the reasons. Other than trying to make our client feel uncomfortable with someone violating his personal space, there was none. It was even better when the prosecutor objected to my standing too close to the witness, claiming that I was “badgering” him. The irony that I was doing nothing different than he did to our client was not lost on anyone. I followed it up with questions:

Q: you heard the objection?

Q: it makes it uncomfortable to have someone in your personal space like this?

Q: I’m no closer than you were to our client?

Q: In fact, here you have a judge and prosecutor to ensure that I don’t cross the line?

Q: there was no judge there during the interrogation, right?

I also compared the the room setting with the way that child witnesses are interviewed. There is a protocol for interviewing child witnesses. It includes putting them in a inviting room, not sitting too close to them, asking them direct questions, not asking them leading questions, not telling that they are lying or wrong and not trying to suggest that one answer is better than the other. The detective agreed that these were safeguards to protect against false accusations, i.e., from a witness just agreeing because of the pressure of the moment. I compared that with his setup of the interrogation of our client:

Q: you asked leading questions?

Q: you challenged him and told him that he was wrong?

Q: you challenged him and told him that he was not helping himself?

Q: you suggested what the truthful answers were?

Q: all things that you indicated could, in a child type witness, suggest an answer?

Q: all things that you indicated could pressure someone to agree just to relieve the pressure?

Again, the irony was not lost on those in the courtroom. The detective had done things that he knew in other circumstances could cause a false accusation. He did them without regard to whether they resulted in a false confession.

Given my training in the area of false confessions and interrogations, these are only a small fraction of the types of cross examination that one can do to lay the groundwork for undermining the reliability of a confession. There is much, much more. Stay tuned as I provide more details of the killer cross examination approach to undermining an interrogation and to challenging the interrogator.

Neil Rockind

A Comment On My Cross Examination Style

Killer Cross Examination.  Yes, that is my style. Not fire breathing. Not screaming. Not pounding the table. Real, methodical, surgical cross examination that points out the lack of candor by a witness.  This is what people think of when they they think of a killer cross examination:


This is what a killer cross really looks like:


Chess playing. Strategizing. Planning.  Laying traps. You get the point.

A client of ours recently watched us utilize these skills to dissect witnesses that testified against her. She was vindicated. Here is description of our cross:


Killer Cross Examination.