Tag Archive for: killer cross examination

Cornering The Witness In A Deposition | Vince Colella Delivers A Killer Cross

imageWhile we criminal defense lawyers seem to have reason to conduct the most cross examinations, once in a while one of our brothers and sisters in the personal injury/civil litigation field conduct a meaningful cross examination that warrants mention.  I’ve seen my longtime peer Geoffrey Fieger do it.  Gerry Spence too.  Both have cross examined witnesses in civil cases where corporations and insurance companies were on trial.  Recently, one of my closest colleagues/friends/warriors, Vince Colella in Southfield, Michigan, conducted a cross examination in a deposition that caught my eye.  Vince is of counsel to our firm and we used to share space together (not to mention the multiple cases that we have worked on together) so it comes as so no surprise that Vince hit one of out of the park.

Here is the exchange that caught our eye:

Vince: [Mr. Adjuster} do you have a philosophy on adjusting claims?

Adjuster: Yes, to be fair.  And, error on the side of providing coverage.

V: So, you give the benefit of the doubt to the claimant?

A: Yes.

V: Do you like baseball?

A: Yes.  In fact, I have been an umpire for 5 years.

V: So, then you are familiar with the phrase “tie goes to the runner.”

A: Yes.

V: What does that mean to you?

A: That if the base runner touches the bag at the same time the fielder catches the ball while touching the bag, the runner is safe.

V: Great.  So, in this case, you were provided with a medical opinion from my client’s treating physician.  And, you obtained one from a doctor you hired and paid for, Correct?

A: Correct.

V: You had conflicting medical opinions. Right?

A: Right.

V: Yet, you chose to accept the opinion of the doctor you hired, and paid for, over my client’s doctor? Am I correct? Well, that’s not consistent with your claims handling philosophy is it sir?

A: Um, well, I guess not.  But, ……(blahblahblah)

In this exchange, Vince revisited a common, easily understood phrase to get the adjuster to admit that where there is a doubt, the insured, driver should win.  Then when the adjuster agreed, Vince pounced to point out how the adjuster wasn’t applying the very rule he adopted a few moments earlier.  A killer cross examination.

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

 

You’re Holding My Pen: Proving A Point During A Cross Examination

The Phone

It was quite a sight.  The seasoned police detective had been on the witness stand for awhile.  He had testified on direct examination and been cross examined for a while by several lawyers.  The “the pen” happened.   “The pen” is one of those moments that makes the courtroom stand still and it did here as well.  Want to know what happened?  I bet … read on.

One of the state’s arguments was that text messages on a phone found in my client’s pocket were sent and received by him.  Mind you that none of the texts mentioned his name, initials, nickname nor bore any identifying information that they were sent by him.   There was no identifying information that the phone even belonged to my client other than the fact that it was in his pocket.  The state didn’t know if he had picked it up with plans to use it, picked it up and put it in his pocket or if it was his and he had lent to another.  It had no evidence that the phone belonged to him and that the texts were sent by and received by him.

Nevertheless, the state and detective fought to tie those texts to my client.  It’s principle argument was that the phone was in my client’s possession and thus … it must be his and … thus the texts must be his.  “The pen” did a lot to disprove

The Pen

blue-bic-biro-pen

As I was cross examining the detective, he was fiddling with a pen.  I smiled and asked him about the pen.  It went something like this …

Q:  you’re holding a pen?

A:  yes.

Q:  where did you get it?

A:  it was up here on the stand.

Q:  you just picked it up?

A:  yes, I guess so.

Q:  are you aware that is my pen?

A:  no.

Q: So the fact that you’re holding it, tells us nothing about whose pen it is?

A:  I guess not.

Holding my pen, “the pen”, the detective had proven our point about the phone.  The fact that someone holds or possesses an object tells you very little about who owns it and who was using it previously.  The fact that a phone was found on my client at one moment in time tells us little about whose phone it is and who used it to text.

How did this develop?  Active listening and paying attention in the moment.  I have long advocated that lawyers should while cross examining should avoid being overly wed to a notepad or a list of questions.  Being fixed to a set of questions prevents the lawyer from watching, listening and reacting to what is actually happening with the witness.   As I was cross examining the detective, I observed him holding my pen.  At that moment, in real time, I realized what opportunities were available if I put the right questions to him.  And so … I did.

The pen.  The real time cross examination.  The points made.  A killer cross examination.

I’m Not Going To Be Cross Examined By “That” Lawyer

So the worst kept secret in Michigan is out:  it is not fun to be cross examined by me.  Not fun at all.  I wouldn’t compare it to getting one’s teeth pulled.  However, I would compare it to trying to out punch your shadow.  Trying to fend me off is tiring and usually pointless.  It is a fight that can’t be won.  But, you don’t have to take my word for it … take the word of others that have watched it first hand or experience it.

One person watched the officer’s eyes as I walked into the courtroom, and he swore that they showed fear in their eyes.

There are other stories too:

The retired police officer that reminds me on social media what it was like to be cross examined by me.  Every time we post a transcript or a video, he comments and chuckles and reminds me of an encounter we had.  He dreaded the experience.

Or, there are the thousands of people that watched our YouTube.com videos of my cross examinations of a Michigan State Trooper in a circuit court trial.   Read the comments … you’ll see what they think.

But one stands out to me.  I cross examined several witnesses in a personal protection order hearing and some of the potential witnesses watched me do it. They were going to be witnesses for the opposing party.  One look and they changed their minds.  They said:

I’m not going to be cross examined by that guy.

snody-rockind-crosssnody-rockind-cross

Pretty high praise for my style of cross examination.  Killer Cross Examination.

 

Neil Rockind

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.

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.

“Actions Speak Louder Than Words” – A Recent Killer Cross Examination – “The Cross of Gray”

A theme can make all the difference between a rayood cross examination and a killer cross examination.  Our them was “actions speak louder than words.”  This is the story of the cross examination of a seasoned officer based on a theme of “actions speak louder than words.”

The hearing in the racketeering case began on a Tuesday.  The prosecutor, a seasoned veteran of the Michigan Attorney General’s Office, was going to hang his proverbial hat on the testimony of a single witness:  a veteran police officer who was the Drug Task Force Director of a neighboring county.   For days, five lawyers, Matt Newburg, Michael Komorn, Paul Tylenda, Noel Erinjeri and I sat in court each questioning witnesses and our own clients attempting to show the unfairness of our client’s arrest and prosecution.  One by one, our client’s took the stand and each told their story as best they could.  Each time one finished, the prosecution would cross examine the client’s aggressively.  In the end, we all knew that the case would boil down to one (1) witness, a retired officer.  It was obvious that the case would boil down to a credibility contest between our client and the officer.

Before the officer testified, I questioned the officer in charge.  By the time I finished questioning the trooper, we had laid the groundwork to show the officer’s testimony was likely to be untruthful and that the state was too quickly and without appropriate caution embracing the officer’s claims.  The officer was denying, wholeheartedly, that he had sanctioned and advised our clients that their business was legal and in compliance with the law.  Prior to the officer testifying, one prosecutor assisting the prosecution was so concerned about the officer’s testimony that he spent time prepping the officer, e.g., showing him photographs, emails and other items that had been admitted in the days proceeding.  By the time the officer appeared for testify, the prosecution was advising each other that “he’ll be golden”, “[the officer’s] going to kill it”, etc.

After the prosecution finished its direct examination, I stood to cross examine the officer.   I decided to separate his current statements in court and those made to the police from his actions at the relevant period of time.   I would compare his words now and his actions then.   Soon, the officer admitted that actions speak louder than words and we examined his actions.   His actions and inaction would prove his downfall.  I ended my cross examination by pointing out that the way he described the relationship between my client, the reputed racketeer and drug dealer, and himself: professional, courteous and decent.  The way the officer described it, it remind me of a scene from Looney Tunes:

Sam_and_Ralph_clock

Stay tuned as we go deeper into the “actions speak louder than words” cross examination of this retired officer.

If A Cop Could Tap Out During Cross Examination – This Was That Time

Ronda Rousey is famous for her ability to quickly force a victory by submission in professional mixed martial arts fighting.

ap-ufc-157-mixed-martial-arts-e1423492606179

Getting opponents to tap out, i.e., submit and quit, is quite an accomplishment and Rousey has it down to both a science and an art form.  The tap out, i.e., sign of submission, is just that — a literal “tapping” of the fingers or hand.

Some police officers, during a killer cross examination by yours truly, have clearly wanted to tap out or submit.  At some point in the cross examination, I can sense when a witness wants to tap out, if only there was some way to do so.

We recently tried (to jury) a drunk driving case in which the police officer, undoubtedly, wanted to tap out.  Some cross examinations produce one, two, maybe three good exchanges between the examiner and the witness but this cross examination was relentless — the officer at one point looking like he wanted to tap out.  Take a peak at how in each series we setup the so-called submission move, i.e, the powerful moments where the witness is admitting that his prior testimony was incorrect, he erred, he was lazy/made assumptions or is undermining his case.  Imagine him sitting there, not knowing when it will end and wishing for a way to make it stop, i.e., to tap out.

The Driver

At the scene of the stop, our client claimed that another man was driving the car and had left prior to the officer arriving.  The officer attempted to suggest that he searched for records of the other individual.  That didn’t go well:

Q:  how’d you spell the last name that you looked up?
A:  multiple ways.
Q:  tell me.
A:  (cop does one)
Q:  others.
A:  (cop does one more)
Q:  wouldn’t a way to see if the accused has a friend or connection named that be to check Facebook for a Facebook friend?
A:  I suppose.
Q:  if he has a friend with a name like that, wouldn’t a way to see whether or not you got the name correct to check Facebook?
A:  yes.
Q:  you didn’t check.
A:  no.
Q:  when you ran [that name] through CLEMIS or LIEN and claimed that nothing showed up, you’re purpose was to suggest to the jury that this person doesn’t exist?
A:  attempting to suggest that there’s been no driver, nobody came forward.
Q:  that’s not the defense’s responsibility, to prove a defense, is it?
A: no.

As bad as that sounds, it only gets worse:

Q:  The quality of the search of the name is only as good as the names you type in?
A:  Correct.
Q:  you’ve heard of garbage in, garbage out?
A:  we’ve seen one in another in court on this case before right?
Q:  you never once asked me how the name of the driver was spelled, did you?
A: no.
Q:  you made an assumption about the name?
A: I used what I heard and what I —
Q:  What you heard?
A:  what I heard on the video?
Q:  so if you heard it wrong that means that the name you looked up is wrong?
A: correct.
Q:  so your search doesn’t tell us very much does it?
A: correct.

At this point, I recall the officer looking around as though he wanted to be anywhere else.  However, this exchange was within the first 6 pages of my cross examination of the officer.  In other words, this was the beginning.

The House Was Dark

The officer also tried to testify that when he pulled up, all of the lights were off in my client’s house and thus, he concluded, that our client had not come from his house to his car to get something but instead had just returned from driving.  Like the subject of the name of the driver, this cross examination section was devastating to the officer’s credibility.  While “Gotcha” moments rarely happen in court, we produced one here.

In order to pull off what you’re about to read, you must thoroughly prepare to cross examine the police officer.  I don’t mean “read the police reports” but rather, you have to think about each strand of the officer’s claims and examine them from different angles and different perspectives asking:

  • is this true?
  • could be this an an exaggeration?
  • how could this wrong?
  • is this an assumption?
  • etc.

When the officer claimed that there were no lights on in the house, I was curious if that was true.  I imagined a moment in which I could show lights on in the house … I thought how devastating this would be the state’s case:  a true “gotcha” moment.  I planned.

First, I watched the video carefully and at a painstakingly slow speed.  After multiple frame by frame segments, I saw it … the house and a light on inside.  Second, I noted the time.  Third, I took multiple still photos from the video program itself, from my computer still photograph program and with other devices.  Fourth, I identified every possible landmark I could and pointed to them with an indicator.  Last, I took daytime photos to show the same angles and landmarks.   My plan, unfurl this examination piece by piece so that the officer was trapped and forced to reveal that he was wrong and had made a devastating and prejudicial assumption.  To the person watching, it would have seemed like I was just up there talking to the cop about this stuff but this was the product of a plan and the execution of the plan:

IMG_0001

When I question the officer about which house was the accused’s, you’ll notice him fight and obfuscate a bit.  I don’t mind at all … to me, he is walking right into the cross examination trap that we’ve laid out for him.

IMG_0003

 

 

Because he tried to suggest that “he didn’t know” which house it was, we start identify landmarks for him to “assist” him and to show the jury that he is not being forthright.IMG_0004

At this point, using our exhibits, I attempt to identify several landmarks for the officer:IMG_0005 IMG_0006

As you observed, I continued to use our exhibits to identify the house for the officer and jury.  We identified two ceramic, distinctive and unique lawn ornaments and zeroed in on those and the house between them and as you’ll see, the cross comes together at this point.  The evidence is undeniable and devastating:  the house between the lawn ornaments (the balls) is the accused’s house and …. there is a light on in the house.  Which leads to the final questions:  there was a light on in the accused’s house and that he was wrong about the absence of a light.IMG_0007

That’s a light on in the house you’ve identified as [the accused’s] house, isn’t it? Here is the answer —

IMG_0008

The cross examination continued past this point but the killer cross examination approach had already won the case.   The witness made assertions and those assertions turned out to be wrong and, worse, were proven wrong before the jury.  Just as Rousey does in her matches, she goes for a submission early on and is typically successful.  This is no accident.  My killer cross examination did the same … if the officer could have tapped out then, he would have.  Several hours later, when the proofs were in, the jury did it for him and found our client not guilty.

“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.