Tag Archive for: acquittal

“When the witness is digging himself a hole, keep the shovel in his hands”

Killer Cross Examination Snippet from P v Morrow

“When the witness is digging himself a hole, keep the shovel in his hands”


The informant took the stand to attempt to finish his “work” for the Straits Area Narcotics Enforcement (SANE) drug team. He thought he’d be cagey and try to argue with me as I cross examined him. Ask those in the attendance whether his caginess or attempt to “talk back to me” worked. I suggest that most in attendance realized that he was only digging himself a deeper a hole.  I kept the shovel in his hands.  

Here is a summary of just one portion of the killer cross examination of this informant-witness:

 Q:        You would lie to get yourself out of trouble?

 A:         No.

 Q:        You’ve admitted as much under oath in the past, right?

A:         No.

Q:        You testified in oath in {this other case}?

 A:         Yes.

Q:        Weren’t you asked this question, “You would like to get yourself out of trouble?” and your answer was, “Yes.”

A:         Yes.

Q:        So you lied earlier today?

A:         No.

Q:        You denied that you’d lie to help yourself get out of trouble and you denied that you said that under oath earlier.   Those were lies, right?

A:         Yes, I guess.

Q:        There’s not much to guesswork in that is there?

A:         I don’t know what you mean.

A killer cross examination can expose the witness’s willingness to lie but also by addressing each aspect of the lie, e.g., in the past, in the present, etc., reveals the witnesses willingness to continually lie even in court.  When a witness is digging himself a hole, make sure that you keep the shovel in his hands and get him to keep digging. 

(This is a summary of an excerpt of one portion of the cross examination of the informant.   It is not meant to state that this is an identical transcript or verbatim copy of the transcript.)

Stay tuned from more revelations from the cross examination of the informant in the Morrow case as well as cross examinations of the officer in charge – those too proved to be quite revealing.


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


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

Killer Cross Examination Is Effective

While we normally don’t put quotes or testimonials on this website and instead reserve it for cross examination pieces and excerpts, I thought it appropriate here.  We just finished an OWI/DUI – 3rd Offense trial in which our client was acquitted.  Every one of the state’s witnesses testified “for the defense.”  How is that possible?  Killer Cross Examination.  

The client, publicly, shared her observations of the effectiveness of the style in a recent post on www.Avvo.com :

“He strategically cross examines the witnesses against you in a way that I think they even start to believe that they’re wrong for even being against you.”

Stay tuned for more cross examination tips from Neil Rockind, author of killer cross examination.

Attorney Comments On Neil Rockind’s Cross Examination Of A Police Officer In Trial – Calls It “Classic”

UPDATE: the trial at issue resulted in an acquittal for our client:  he was acquitted of all charges, including Aggravated Assault and Assault and Battery.   Here are pictures of the complainant so that the reader can appreciate what we were up against:

Thompson Photo 3 Thompson Photo 2 thompson photo 1

In a hotly contested Aggravated Assault trial presently underway, veteran trial attorney Michael Hohauser has been intently observing the proceedings.  As trial started, Hohauser watched each step Neil Rockind took in the case.  Rockind is defending the accused and it will be Hohauser’s job to defend the same gentleman in a civil case that has been filed in which the complainant is seeking monetary damages.  Hohauser watched Rockind’s opening statement and his cross examinations of the three (3) witnesses to date:  the complainant, the complainant’s wife and the arresting officer.  During each and at times, the judge interfered sustaining some objections raised by the prosecutor and one time raising an objection sua sponte.  As Hohauser said, “you handled the judge perfectly.” Rockind never raised his voice to the judge and never let on how one-sided the judge appeared to be.   Rockind remained calm and continued undaunted.  After watching Rockind use the killer cross examination approach to examining the officer, a cross examination that will be shared here in full when the case is over, Hohauser had this to say about what he saw:

Yes I was Neil. It was classic. You brought it in perfectly. I was so busy watching you and the officer I didn’t notice if the jury was alert.

The cross examination was so compelling and the observer so drawn in, that his attention was focused on nothing else.  That is the best compliment that a trial attorney could receive from another trial attorney.

Neil Rockind (242)

Catching A Snitch (Jailhouse Informant) In A Lie

Jailjouse informants.  Every criminal defense lawyer in a major case in which his/her client is in custody in jail fears one of these low-lifes coming out of the woodwork.  These informants seek favor from the police and government by offering testimony against someone with a case pending.  They are sketchy, unreliable and unfortunately, dangerous witnesses.  Too often, juries rest guilty verdicts on these witnesses.  Too often lawyers do a poor job of cross examining these informants.  In the case of Mark Lundy, charged with murdering his wife and daughter, a jailhouse informant materialized out of thin air.   The witness claimed that Lundy said he would’ve got away with what he’d done, if his daughter hadn’t walked in and seen what he was doing to his wife.

The witness also claimed that Lundy told him he’d been planning what he did for some time, and “she had it coming to her”.  One part of Lundy’s lawyer’s cross examination of the informant caught our attention at KillerCrossExamination.com.

The informant testified that he met Lundy while they were in the segregation wing of a prison, in 2002.  He’s told the court he got chatting to Lundy while in the prison yard.  According to the informant, Lundy told him that he was waiting for an appeal to go through, but didn’t explain it.

Lundy’s lawyer seized on some information that he obtained from an investigation into the informant’s background, e.g., a probation report that referred to the informant as “manipulative” and aggressive when doesn’t get his own way.  The witness could hardly deny what was in the report.  And then, using the “manipulative” reference, the lawyer went to work on a glaring hole in the witness’s story:  that Lundy said he was on appeal while in the yard.  Why?  Lundy was not on appeal.  

Lundy’s lawyer, using a bit of killer cross examination, pulled some jail records and noted that the informant and Lundy were jailed together before his first trial and thus before any appeal.

“He wouldn’t have been waiting for an appeal because he hadn’t even been convicted,” he says.

Witness X replied, “he told me he was waiting for an appeal”.

Lundy’s lawyer then used the probation report to impeach the witness:

“Are you being manipulative again,” pressed Burns.

“No,” Witness X replied.

Meticulous attention to detail and a thorough investigation into the informant’s background is required in order to pull off a killer cross examination.  Some lawyers think that we just stide up to the podium or lectern in a courtroom and outwit the witness “off the cuff”.  They are wrong.  Conducting a killer cross examination requires skill, talent and wit, that is of course true, but it also requires something additional:  preparation.  Lundy’s lawyer likely neutralized this witness by obtaining information about the witness’ past, constructing a timeline and then reviewing that timeline against the facts.

Neil Rockind is a criminal defense lawyer with Rockind Law, a criminal defense trial firm in Southfield, Michigan.  Rockind has won virtually every award and accolade available to lawyers, including, Top Lawyer, Super Lawyer, Top 100, Top 50, Top 10, Leading Lawyer, Legals Finest and a Leader in the Law.  The Detroit Legal News referred to Rockind as “Tenacious”.  Laws.com characterized Rockind as someone who fights for the underdog.  Rockind is the Channel 4-WDIV (NBC) local television analyst/expert.  Rockind handles drug, alcohol related, white collar and assault type cases in and around the state of Michigan and in federal court.  He is the author of killercrossexamination.com. 

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:

ward nighstand xward nighstand x



Here is what the tables next to the bed actually looked like:color photograph of nighstandHe 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.

Trap Two

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:



All of these arguments were developed and made possible by our killer cross examination setup

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:

ward - no witnesses to location

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.

Trap Three

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:

exterior of house ward

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.


Using Real Time “In The Moment” And Common Sense – Critical Elements Of A Killer Cross Examination

Neil Rockind, author of killercrossexamination.com, shares tips and real world examples of cross examinations to help lawyers develop a Killer Cross Examination | Using Real Time

Many trial teachers and instructors teach students to be “in the moment” yet having watched many of the lawyers who were educated in this fashion ply their trade, I am convinced that too few actually practice what they learned or preached.  Many lawyers think that being in the moment means being emotionally in touch with the witness or their own feelings, etc.  I view it differently.  In a killer cross examination, “being in the moment” is actually being in a conversation with someone and actually reacting to the information that the other person is saying and the manner in which they sharing it.   Rather than referring to it as “being in the moment,” I prefer to think of it as using “real time” and encourage lawyers to react in real time.  This is critically important in a killer cross examination:  react to things being said and done in real time.  Think about it as if there was little opportunity to think — imagine yourself in a tennis match in which your opponent hits a shot cross court.  You are going to “react” in real time to the cross court volley, chase down the ball, size up where your opponent is on the court and attempt to hit a winner.  In some circumstances, continuing with the tennis analogy, you make not even have time, in real time, to try and do anything other than just chase the ball down and attempt to hit it.  One thing I know, however, is that if your opponent hits the ball to your right, you’re going to move left — if he hits a drop shot, you’re going to run towards the net, not back up behind the baseline.  “Real Time” reactions.

A recent cross examination that I conducted in a contested DUI/OWI-Accident case is a prime example of a real time reaction to a witness’ testimony.  In this case, our client was accused of operating or driving while intoxicated.  An accident was reported involving a red Jeep.   We believed that the officer’s stop of the vehicle and detention of the driver was unlawful.  Our principle argument rested on the fact that the officer that made the stop did not identify or even attempt to identify the most significant detail given to him by dispatch:  the involved vehicle should have heavy damage.  It was my position that the police should have done whatever was minimally intrusive to our client’s constitutional rights and that he must, before approaching and communicating with our client, look at the vehicle to see whether it matches that given by dispatch:  a vehicle with heavy damage that was in an accident.  Let’s take a look:

In this passage, you’ll see that I set the officer up with my premise, i.e., that he should take the least intrusive means when making a traffic stop.  By taking the least intrusive means, the accused’s constitutional rights are least impacted.  I pose this to him in a way that is hard for him to deny:

Hroba - Real Time 1

After getting him to agree that the least intrusive means test, I walk the officer down the path, taking small steps — first asking him to agree that the least intrusive means would be to identify a car, matching color, matching make and matching “heavy damage.”

Now I move in for kill, i.e., that the officer did not attempt to take the least intrusive means, because he failed to identify whether the vehicle that he was stopping had “heavy damage.”  However, as you’ll see the officer attempts to give me a hard time.


Hroba Real Time 4

Here is how he tries to give me a hard time by saying that he “was behind the vehicle,” an answer to a question that I never asked.  In the moment, in real time, I pursue it — reacting to not getting the answer to my questions:

hroba real time 6

As you can see, he was persistent — he was trying to dodge the issue but I was not letting go.  I was listening and reacting in “real time” to what he was saying:  him citing to my suggestion as “unreasonable” was too calculating and argumentative.  Just like I would with someone in my family who was trying to ” bs” me, I reacted in real time to what the witness said.  Him claiming that it was unreasonable suggested to me that he had thought about doing as I suggested but deciding against it — accordingly, I questioned about just that:

hroba real time 7


Rather than going away, crawling into a hole or feeling like the witness was getting away from the point that we were making, in real time I considered the answer, the implications of it and questioned him:   he was offering a justification for not having done something and by doing so he was necessarily implying that he  had thought about it but decided against it.  I ask him, “you’re giving a justification … which suggests that you thought about it but just didn’t do it…?”  I was listening, thinking and responding.   My opponent had hit a volley and I was chasing it down and then going to return it for a winner.   I didn’t stand there stuck on some note page with pre-printed questions.  I was live, in real time and reacting.  This is part of a killer cross examination. 

Of course, the witness cannot concede that point for fear of looking stupid.  He knows it too.   So when I ask him the question, he is stuck with having to agree and … he did:

Hroba Real Time x 9

Trapped with a real time, in time confrontation, i.e., challenging his assertion with logic and reason, he returns to the point that we were trying to make with this line of cross examination and concedes the point:

Hroba Real Time x 10


This is just one example of a killer cross examination: one that controls the witness but one that is dynamic where the questioner responds in real time to comments and testimony offered by the witness.  The witness was trying undermine our arguments and help the government’s case.  He knew he was trapped when I questioned him about the least intrusive means and with questions that inspecting whether the vehicle had damage was “least intrusive.”  He knew he was cornered and rather than concede that point, he tried to argue with me:  “that would not be reasonable,” he responded.  Yet, were he to have made that judgment on the road, that would necessarily mean that he had thought about it and decided not to check whether the car had damage.  I questioned him about that inference and he knew that in the process of trying to wiggle out, my grip had become tighter.

Killer cross examination is a fluid, dynamic, in time, real time style of cross examination that involves preparation, knowledge, wit and reason.   It is my style of cross examination.   Maybe you can add some elements of this type to your cross examinations as well.  Good luck.


The Beginning Of A Killer Cross Examination – The Setup

One of the keys of a killer cross examination is to have an idea of what you, the cross examiner, wants to get out of the witness.  Are you looking for testimony that helps build your case?  We call this positive cross examination, i.e., questioning designed to get you information that will affirmatively help prove your point.  Or, are you looking for testimony that impeaches or discredits what the state or witness is claiming?  We call this negative cross examination, i.e., questioning that is designed to solely to undermine the reliability of a specific witness called the state.  Sometimes, the two types of cross examination merge into one — this is an integrated cross examination.  This type of cross examination is the type of cross examination that is most commonly the focus or a part of a killer cross examination.  In other words, the cross examination has a two fold purpose — 1) help build your case while 2) undermining the reliability of a key state or government witness.  A killer cross examination, at least the type that I conduct, contains a setup.  The setup is key.  The setup is what sets the witness up for a subsequent knockout, i.e., like a boxer propping up the chin of his opponent before delivering the uppercut that puts him on his back.

In a large quantity drug case, we were convinced that the detective had threatened our client in order to get our client to make a statement to the police.  Our client claimed that he was threatened but we knew that the officer was going to deny it. For most judges, a “he said vs he said” credibility contest between an accused drug dealer and a decorated police officer is no contest at all:  they would side with the police officer.  In such situations, most prosecutors will argue that “the officer wouldn’t risk his career for one case” and “how dare we argue that the detective could engage in something so nefarious … I’m offended”, some would argue.   So we knew that the battle could not rest solely on each of the witnesses, i.e., the detective and the accused, telling their respective accounts.  We knew that such a strategy would fail.  So what did we do?  I used a killer cross examination “set up”, i.e., a series of questions that sets up the detective or witness for failure.  This setup is a trap.

In this case, we had two pieces of other information that we needed to use to our advantage.  A false statement that the witness made at the preliminary examination and another misstatement that the witness made in a written affidavit in support of a search warrant.   It was my plan to reduce the detective’s claim, i.e., that he didn’t threaten my client, to just his word and then cross examination about the unreliability of his word using the other statements.  Here is the killer cross examination setup:

Ferguson SetUP 1 Ferguson Setup 2 Ferguson Setup 3 Ferguson Setup 4
Notice the setup?  The beginning of the cross examination goes right to the issue — the Detective had his gun unholstered, i.e., he had his gun out of the holster and was using the gun as a part of his threat and intimidation to compel our client to make a statement.   Of course, I anticipated that the detective would not bite on the question and true to form, he didn’t.  But, I continued with the setup:
Ferguson Setup 2Ferguson Setup 2



Besides denying that he didn’t have his gun unholstered, we have upped the ante so to speak, by brining the detective’s tactical assault rifle into the picture.  The accused claimed that the detective held the assault rifle menacingly while he was being compelled and threatened into making a statement to the police.  Just as I anticipated the detective would do with regard to the gun, I anticipated that he would deny having his rifle or brandishing it any meaningful way.  As I walking him towards the trap, he was following along — taking the bait.  He was walking into the setup.

Ferguson Setup 3


This section of the setup deals with two parts … the first part is obtaining a denial of our client’s claim:  the detective told him that our client was getting arrested unless he made a statement that day.  The client confidently asserted that the detective threatened him with arrest if didn’t answer questions.  We believed that this had taken place but we knew that the detective would not readily admit it.  We used his denial to our advantage by framing it and making his denial the centerpiece of the setup.  As you can see, he denied threatened the accused and denied threatening the accused with arrest unless he made a statement.  Now the final piece of the trap is laid … I begin to to focus on the detective’s lack of corroboration or anything to support his testimony.  I want his word, his claim, to have stand alone because soon, I will attack the very reliability of his word.  As you can see, isolating his denial and his word began with a simple question about a cell phone.  It was followed by this:

Ferguson Setup 4



A police officer can use a cellphone to record a conversation.  A police officer can use other mechanisms to record a conversation. By recording a conversation, the judge and jury can hear what exactly went down.  Without a witness or recording, we must take the detective at his word.  His word.  We have no isolated his word and the claim that he did not compel a statement.  This setup, isolating the detective’s word, resulted in a successful cross examination where I pursued the detective’s other lies in court and reduced the reliability of his word to “rubble”.

A Killer Cross examination has a beginning.  It is more than just walking up to the podium, grabbing your trousers and pulling them up and saying whatever is at the tip of your tongue or on your mind.  It has a purpose.  A killer cross examination is not based on written questions and reading the questions from a book or pad.  You can see above that I wasn’t reading — I was talking like a real person, a believable person, but one that had a purpose — to isolate the detective’s claim to purely his word and then to destroy its reliability.  As the detective cockily denied these claims of threatening the accused and of having his gun/tactical rifle out, he thought he was getting the best of me but I knew that I was luring him into a trap, a setup … an ambush.  As I walked backwards, he pursued until he was stuck and then I sprang the trap on him.

My cross examinations have a beginning, a purposeful beginning.  They often include a setup, particularly where I am pursuing a witness and trying to impeach him while bolstering my case but they always have a purposeful beginning.  We’ll examine other beginnings of cross examinations, including humor, etc. over the coming days and weeks.  I’ll also explore the trap and how once the trap is dropped, you don’t let your quarry go — no matter what.  Like reeling in a big fish, you continue to pull and work the reel.  Cross examination is hard work but a killer cross examination, when done right, is a piece of art.

To read the full cross examination of the detective in this case, click below.


Ferguson Cross Examination

Neil Rockind
Neil Rockind, P.C.