Tag Archive for: informant

Cornering The Witness/Informant

img_2120.jpgWe just finished two (2) long trials.  Both involved difficult facts and difficult circumstances.  And both involved informants or cooperating witnesses testifying for the prosecution.  Cross examining a cooperator or informant is not for the feint of heart … it requires listening, persistence, patience, wit and a plan or attack.  Some lawyers just want to get up there and yell and scream.  Those lawyers rarely succeed during a cross examination of an informant/cooperator.

In our most recent trial, we were confronted with two (2) cooperating witnesses.  We’ll write more about the cross examinations of these witnesses in the coming days but suffice it to say that we had a plan of attack for each and we executed that plan.  Court observers claimed that they didn’t believe either witness.  But I digress …

In another recent trial, one that last several weeks, we were confronted with one of the most challenging witnesses around — the cooperating accomplice who is willing to admit every prior lie, misdeed, etc.  This witness is street smart and is willing to light himself on fire so long as he lights the accused on fire as well.  Think of a mob movie with a smart-alecky turncoat “snitch” on the stand who tells jokes, laughs at himself and others and is good with a comeback or two and you’ll start to understand the type of witness that we just dealt with in this trial.  But there is a way to effectively cross examine this witness — you have to corner him in ways that he doesn’t expect it, with a series of questions where the witness will likely lie to avoid looking bad.  You see, its easy for someone on the stand who is getting a deal to admit to having lied to the police or having committed crimes — they know that the prosecutor, judge and jury already know that about them.  They have embraced those facts and they are willing to admit them.

But if you can corner the witness into situations where he is forced to admit facts that make him look bad, that reveal the core of his character, i.e., things that he wasn’t prepared to have to admit to, he will naturally lie or have to admit being a con.  This is the gold of a killer cross examination.

During this cross examination of this witness, we cornered the informant/cooperator twice to such a degree that even the judge knew he was lying and the judge jumped in and actually pointed out that the witness was lying.  Here are two (2) excerpts —

In this excerpt, I confronted the witness with his looked the cops right in the eye, on the scene, and lied.  The witness didn’t want to admit that … he was prepared to say that he had lied at the police station but he wasn’t prepared to reveal that he had the ability and character to lie on the fly (so to speak) and to do so convincingly.  Even the judge knew he was a “deceitful guy” and called him out on it:

informant x- Judge Recognizing 1

You see the trap?  When the witness was cornered, he didn’t want to admit the truth but he didn’t know what to say.  When he paused and hesitated, the judge called him out, admonished him and even called him a deceitful guy.  It doesn’t get must better than that.  Or does it?

In this next excerpt, I cornered the witness again.  The judge saw the witness trying to lie and called him on it too.  The witness didn’t want to admit that he was going to get insurance proceeds that he wasn’t entitled to … he realized how that made him sound to the jury:  bad, devious, deceitful.  So, the witness tried to lie:

killer x - Judge Recognizing 2

He was cornered with having to reveal his true character, his true self and he didn’t want to.  Instead, he answered “I can’t answer that.”  This was a copout of course.  But the judge wouldn’t have any of it … the judge called him on it again.  Again, it doesn’t get much better than the judge calling the witness a liar during a cross examination.

When confronting a witness, make sure to corner him with having to admit that he is a liar/or scoundrel or watch him try to squirm out of it.  If you have a judge like we had, the judge will recognize it too and even help you prove your point.  Either way, the jury will see and understand what’s happening.

Neil Rockind
Rockind Law

 

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.

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. 

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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