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“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.


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.

“32” Questions To Get To A False Statement

After the hearing, the prosecutor attempted to pay me a compliment: “I leaned in to tell the OIC that if I were in trouble, I’d hire you.”  I accepted the compliment.  I had just finished cross examining an experienced police officer, on the force for over 15 years and an experienced witness. He was battled tested.  He wouldn’t go down easy.  But down he went. 

Trapped by my killer cross examination, he was stuck: he wrote his report without referring to an odor of marihuana in the storage shed but was now caught.  I was pushing him on the lack of an reference to an odor and he was struggling.  He knew he was caught.  He was investigating a marihuana case and entered into a storage unit with allegedly 25+ poinds in packages and he didn’t put in the report that there any odor of marihuana in the unit.   Despite admitting he put all relevant information into his reports, he hadn’t done it here.  He was now trying to find a way out.  For about 32 questions, he danced, shucked, jived, moved, ducked and dodged. Kind of like 

I was relentless. 

Q:  you don’t remember an odor? 
A: I’m not saying that. 
Q: you didn’t put it in your report? 
A: I wouldn’t in a marijuana case because it is obvious that there’d be a smell?
Q: that sounds like an assumption?
A: what is your question?
Q: when you say in a marihuana case it’s obvious that there’d be a smell, you’re assuming? You’re assuming that there was an odor of marihuana? 
A: I’m assuming. Correct. 
Q: you think it’s ok to assume? 
A: no. 
Q: don’t assume please… Back to the issue… you don’t recall when walking into that room that you smelled an odor of marijuana? 

A: you’re trying to trap me into a yes or a no. 
Q: officer, I’m just trying to get an answer to a question…
A: I would never put it in my report, that’s why we have the canine sniff. 
Q: but dogs can detect odors that humans cannot, correct? 

A: yes. the canine sniffed it so I wouldn’t put it down it in my report. 
Q: it’s relevant informantion, right? 
A: well, the canine sniffed it. 
Q: it’s relevant information given your earlier acknowledgment that where there is no odor, a person in the area might not know that marijuana is nearby?

A: I wouldn’t say that I didn’t smell it. 
Q: you’ve had other cases? 
A: before and after. 
Q: there was no odor, that’s why it’s not in your report? 
A: that’s a different question. 

And so it went until the very end of my cross where he decided to jump in with both feet:  he claimed to smell an odor of marihuana in the room.  32 questions later! 

My last question summed it up: 

Q:  were you sitting in the gallery, you wouldn’t think a witness testifying similarly was credible, right? 

Of course the prosecution objected but we all knew the answer.  It was not credible.  

Unsettling A Complainant With The First Question

In 2011, I undertook the defense of a son whose father accused him of embezzlement, thefts and other financial crimes.  We anticipated a dogfight with the complainant, my client’s father. Why? He was a too proud man who was upset at the financial devastation that visited his veterinary practice and personal life.  He was too proud to take personal responsibility and so when he needed to open up his veterinary practice again, he used his son to do so. How? He had his son lease the space for the business and entered into a management contract with him to manage the business. However as soon as he got what he wanted, he tried to terminate his son’s contract and then claimed that his son stole hundreds of thousands of equipment and then accused the son formally causing a criminal charge.  

I defended the case and steeled myself for a difficult cross examination: a father accusing his son knows that his relationship is over and so will stop at nothing to make the charges stick.  The dad went “all in” and I figured his resistance to cross examination would be the same.  I developed a plan to throw him and make him look petty early on.  In fact, my plan was do so with the first question. 

Here it is: 

 I called him “Mister”.  Yes, I believed that he’d be a small, arrogant man and so I tested him with my first question: I referred to him as “Mr.”.  His reaction was priceless, predictable and started him off on the wrong foot.  Here it is: 

When he corrected me, I was a nice as could be but continued to bait him. He took the bait. 

For the remainder of the examination, he argued, evaded and fought with me.  At one point, he was caught in a terrible contradiction: property that he was claiming his son took had been paid off at a sheriff’s sale earlier in the year. How could that be? How could the same piece of equipment have still been there for his son to allegedly steal when it was seized and sold previously.  It couldn’t.  

Towards the end of my cross examination, the judge asked us to step into his chambers.  He advised us there and again on the record that he was not persuaded by the evidence and was dismissing.  He said “what’s the point of waiting to do what I’m going to down the line?”.  The case was won on killer cross examination alone. 

Throwing the witness off with the first question — killer cross examination. 

An Excerpt Of A Cross Examination Of A Witness Cooperating With The Prosecution

The cooperating witness has many names:  cooperator, informer, snitch, turncoat, benedict arnold, betrayer, etc.  Many lawyers are afraid to confront the cooperating witness.  A killer cross examination is necessary to undermine the reliability of the witness and at the same time, undermine the prosecution’s case.

A young lady referred to two local judges in a very derogatory fashion.  I had a tape recording of a conversation in which she had made this reference — it was a reference that was unlikely to be uttered or heard in the middle of a drunk driving case, but it turns out that it was one of the elements of a killer cross examination that helped obtain an acquittal for our client.  The case, one of the hardest that I have tried, involved the “switching seats” defense:  the claim that our client (the passenger) switched seats with the driver during the traffic stop in an effort to throw off the police.  The two were cousins.  Our client claimed to have switched seats.  When she was charged and prosecuted, she expected her cousin to come forward and tell the truth and free our client.  It did not go down that way.  Unfortunately, her cousin abandoned her.  Worse, her cousin turned on her and actually attempted to testify that she was only the passenger and that our client was indeed the driver.  The cousin was “cooperating with the prosecution.”  A killer cross examination was needed.  I delivered one.

This excerpt is a small part of the cross examination of the informant/cooperating witness in this case.  I will reveal more excerpts over the succeeding days and weeks.  Of course, you’re wondering how the derogatory reference became a part of a drunk driving trial?  Well … The witness and our client had talked on the phone about the case.  The phone call was tape recorded.  At one point, the pair discussed their judges (the cousin had an MIP).  The cousin stated that “they both sound like whores.”   A killer cross examination involves the use of wit and positioning of witnesses and so we positioned the witness to use this offensive quote.  I questioned her about respecting others and the Court.  She stated that she respected everyone, especially the Court.

Do you think that  referring to a judge as a “whore” is a sign of respect?

Read on for this and more of my cross examination of a cooperating witness in this case.

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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.