Tag Archive for: expert

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

Straight Answers — The Line That Helped A Great Personal Injury Lawyer Depose A Tough Doctor

“Are you going to give me straight answers?”  A rather simple question, right?   Opposing experts in civil and criminal cases often do anything but give straight answers.  Long, twisted, curvy and evasive answers are what experts typically give to lawyers cross examining them.  How to tackle the problem?  A colleague of mine, Vince Colella of Moss & Colella,  LawyersWhoWin.com and DetroitCivilRights.com, is one of the finest personal injury lawyers in Michigan.  He is so dedicated and talented, that he has been named a Super Lawyer, a prestigious honor bestowed on only the top 5% of all lawyers in Michigan.  Recently, Vince Colella approached me to discuss a trial deposition that he was preparing for involving a particularly feisty and difficult doctor.   The doctor was being called as an expert witness by the opposing side, the insurance company.  After a few minutes of discussion, I suggested starting the deposition with a simple question — one that would catch the expert off guard and unprepared:

Are you going to give me straight answers?

You see, depositions typically begin the same way:  lawyers asking background questions, questions about the expert’s experience, work, etc.  It provides the lawyer with information but it also gives the expert a chance to get in a groove, warm up and get comfortable.  Vince elected to take a different approach.  He elected, a few questions into the deposition, to pop the question:

Are you going to give me straight answers?

The goal being to confront the expert with that stark question.  We prepared for the expert’s possible responses.  If he hemmed and hawed, Vince could challenge him right then after all, why wouldn’t he agree to just give straight answers?  Vince even planned to write it out on a sheet paper, once the expert agreed.   Whenever the expert started to go sideways, he would ask the question again using the prior commitment:

I thought you were you going to give me straight answers?

He might even use the sheet of paper.  After a while, we figured, the expert would see Vince reaching for the sheet of paper and know that he was about to get whacked.  He left to put it into action.

After the deposition, Vince returned to the office and reported back how successful this simple tactic was.  Vince asked the expert the question, “Are you going to give me straight answers?” early in the deposition, earlier than expected, and the doctor responded:  “I’ll try.”   Vince told me that he smiled at hearing that — “why would one have to try to give straight answers,” he said he thought.   But he soldiered on and periodically, the expert would attempt to offer some rubbery answer to which, Vince asked:

I thought you were going to try to give me straight answers?

After only a few incidents of having to remind the expert about his commitment to try and give straight answers, Vince relayed that the expert was controllable and manageable and that the deposition not only didn’t hurt Vince’s case but actually helped.

Sometimes doing the unorthodox or unconventional makes all the difference in the world.  This time Vince delivered a killer cross examination with one question:

Are you going to give me straight answers?

About Vince Colella

Vince Colella is a personal injury, civil rights attorney and plaintiff’s attorney representing individuals who have been injured in automobile accidents, personal injury cases and/or who have been sexually harassed or discriminated against at work.  Colella has been named a Super Lawyer in the area of plaintiff’s personal injury cases and has garnered millions of dollars in awards for clients and their families over the years.   To find out more about him, visit www.LawyersWhoWin.com.

About Rockind Law

Rockind Law is a Southfield, Michigan-based criminal defense law firm aggressively pursuing justice for individuals facing criminal charges, including white collar crime, drunk driving, narcotics and assault. To find out more about the firm’s services and resources, visit http://www.rockindlaw.com/.

About Neil Rockind

Neil Rockind is a criminal defense lawyer with offices in Southfield, Michigan.  Rockind has been named a Super Lawyer, among the Top 100 Lawyers in Michigan, among the Top 50 Lawyers in Michigan, among the Top 10 Criminal Defense Lawyers in Michigan, among the Top 100 DUI Attorneys in the United States, the Best of Detroit by Hour Magazine, a Top Criminal Defense Lawyer by Dbusiness Magazine and among the Top 100 Trial Lawyers by the National Trial Lawyers Association.  He has lectured and taught trial tactics and strategies to other lawyers and is frequent guest in the media discussing legal issues and current events.  Rockind is also the WDIV Legal Expert.

 

The Case Of The Illegible Handwriting – A Killer Cross Examination That Resurrected An Under Advisement Sentence For A Client

Read the story and excerpts about how we saved a young man from a probation violation and got a judge to give him an under advisement plea, i.e., MCL 333.7411, after she had originally denied it.  A killer cross examination saved the day.  Here’s the story:

A young man who chose to handle his case without our assistance found himself placed on probation by a local district court judge.  He left the court, went to a clerk’s window and then left the building with plans to appear for a probation meeting the following Monday.  He showed on Monday, met with a probation officer for the first time and was asked a single question that would require him to appear again in court for a probation violation hearing:  “how did you get to the courthouse today?”  When he answered, “I drove,” the probation officer advised him that he was prohibited from driving and that his license was suspended.  The young man was stunned.  He left and contacted our office.  We ordered the transcript from the sentencing hearing and obtained copies of the “Sentence Order.”  Here is a copy of the pertinent part of the “Sentence Order” — the probation officer claimed that the handwriting at the bottom of the form, writing that had never been explained to the young man, put him on notice about his license being suspended:

 

Miller Sentence Order

Our defense at the hearing was that he did not know that his license was suspended and that his license was not suspended.  After reviewing the transcript and line number 37, we even decided to argue that his application for MCL 333.7411, the under advisement statute, had not been denied as the Court maintained.

The witness, the probation officer, attempted to tow the proverbial party line as much as is possible.  She proved to be a resistant, difficult witness that tried to repeatedly argue with me and use the judge as a backdrop or safety valve.  At one point, she attempted to claim that our client had received a copy of the Order of Probation and Sentence Order together.  She would not concede this simple point that Sentence Order was not attached to the Order of Probation even though the Order of Probation referenced a “Sentence Order Attached.”  Worse, she attempted to rely on “practice and procedure” rather than actual facts.  On this one issue, whether the order was attached to the Order of Probation, here is a sample of how I dealt with her difficulty:

miller sentence order cross

Miller Sentence order cross 2

In order to challenge the claim that he knowingly violated his probation, I needed to undermine the claim that he had been told of the condition prohibiting driving and then I needed to challenge the claim that the handwriting put him on notice.

I began a challenge that would poke and point out how illegible handwriting on the Order actually was.  

Miller 7411

This was the order that contained the handwriting that I was challenging.  Here was was my first challenge:

miller question mark crsos

 

My attack on the legibility of the handwriting on the Order continued with a discussion about the words next to community service hours.  Here is the Order:

miller fines handwriting order

 

It looked like “zoo” to me so I didn’t shy away from cross examining on what appeared to be written in that space.  Here is the cross:

Miller fines cross

Miller fines cross 2

The Order contained some words that were illegible regarding drugs.  It said “no drugs” and than what looked a couple of scribbles and the word “rumor”.  Here is the Order:

Miller No Drugs Order

 

 

I cross examined on the illegibility of the handwriting and started laying the foundation for how the probation officer was relaying on the her familiarity with the judge’s handwriting, something that our client did not have.  Take a read:

 

Miller No Drugs Cross

Miller no drugs cross 2

 My cross examination was leading up to the primary issue, the language on the bottom of the order but I could not resist a shot at the Order and what it said about MCL 333.7411.  Did the Order say that MCL 333.7411 was “okayed” or “denied”.  Here was the Order:

Miller deny 7411

I cross examined the probation officer on the what the word was next to the “/”, was it “okay” or a “deny?”   You’ll see that the judge tried to interject and “testify” and accused me of testifying to which I responded, “this is cross examination”:

Miller 7411 deny cross

Miller 7411 cross 2

Having made a challenge to the legibility of the language on the Sentence Order, I proceeded to the language that was at the heart of the allegation of a violation of probation, i.e., the language that supposedly indicated that the accused’s license was suspended.  What was written here?  The first word looked like “Liz” … Here is the Order:
Miller Sentence Order

My cross on the handwriting follows:

miller license susp cross

Miller license susp cross 2

I then closed in … I questioned about a review of the transcript to discover 1) what was actually said to the client and 2) what was on the Sentencing Order since the handwriting was to put it generously, ambiguous:

Miller license susp cross 4

 

Of course, the probation officer had not reviewed the transcript.  Had she reviewed it, she would have learned that the judge never mentioned license sanctions on the record.   But, she tried to stick with the handwriting on the “Sentence Order”, i.e., she walked right into our trap.  Read on:

Miller license susp cross 5

 

Or course it was clear to her, she works in the probation department, is familiar with the terminology and the judge’s handwriting.  The accused was not:

Miller license susp cross 6

Miller license susp cross 3

In the end, the transcript did not provide the probation officer with support and the sentencing order proved to be unreliable in terms of notice.  While perhaps the probation officer was aware of what the judge wrote or meant because she had seen 100’s of these orders and knew the judge’s handwriting, our client had not.  He was a novice.  A killer cross examination exposed his lack of notice and awareness that his license was suspended and ultimately ended up persuading the judge to give him what she claimed she had originally denied him, MCL 333.7411.