Tag Archive for: neil rockind

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.

 

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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.

 

Controlling The Witness | A Key To A Killer Cross Examination

Killer cross examination tips by Neil Rockind, author of killercrossexamination.com — Controlling The Witness

Many cross examination experts implore or recommend that lawyers “keep control” of the witness during a cross examination.  Generally speaking, this is true.  Adverse witnesses that testify for the state and government often times want to testify adversely to the accused and favorably for the government.  Some witnesses will do whatever they can to hurt the accused’s case.  They will attempt to introduce additional evidence and/or prejudicial information while testifying, refuse to answer direct and simple questions and will additionally attempt to assist the state’s case.  These witnesses are potentially dangerous and must be controlled carefully.  The cross examination master, Terry McCarthy, suggests that lawyers use short declarative sentences in order to maintain control of a witness.

The killer cross examination technique that I suggest utilizes this technique, e.g., McCarthy’s short declarative statements to which the witness must agree or disagree, but involves something additional: I find sources of information that bind the witness, bind the witness to those sources of information and pepper the witness with questions that contain suppositions and declarations that he cannot disagree with for fear of sounding or seeming stupid.  The last part is key:  even the most difficult and hostile witness can be controlled if the witness is only given the choice between agreeing with the cross-examiner or looking stupid.  Let me share an example from a recent  DUI/OWI case.

We represented a young man who was accused of drunk driving, i.e., DUI/OWI, by getting into an accident in a vehicle.  What made his case unusual was that he left the scene of the accident, drove to his parent’s home nearby, parked his damaged car in a secluded spot and took out another car to go check on the activity of law enforcement.  This latter decision ultimately led to a traffic stop. Why?  The vehicle that he crashed was a red Jeep and the vehicle that he was driving to go inspect the scene was a different type of vehicle but still a red Jeep.  A police officer stopped him.  We argued that the stop was unlawful.  Our basis for arguing that the stop was unlawful was that the BOL for the vehicle involved was for 1) a red vehicle, 2) made my Jeep, 3) that had been involved in an accident and 4) that had significant front end and side damage.  The latter two factors were key:  absent those two factors, any red Jeep vehicle driver was subject to being stopped and in our opinion that is objectively unreasonable.

The day before the hearing, the prosecutor informed me that he had found a second officer, the one that actually made the traffic stop, had just found that officer’s police report and that he had interviewed the officer personally.  According to the prosecutor, this particular officer denied hearing or knowing that the vehicle involved had significant damage.  In other words, the prosecutor was informing me that the officer that made the stop was only aware of vehicle’s color and make, i.e., red Jeep, and not the factor that distinguished the involved vehicle from all other red Jeeps on the road.  Nevertheless, despite this information, I prepared my plan to cross examine this officer.  I got exactly what I wanted.  Despite the prosecutor’s warning the day prior, I actually got the officer to admit that he was aware of the BOL information that the vehicle had significant damage.

The key to this cross examination was our having obtained copies of the dispatch audio recordings via FOIA.  The audio recordings provided us with the “posts” that I described earlier to which I could tie and handcuff the officer.   We discovered that the dispatcher had provided the information to the officer that the vehicle should have significant front end damage and that she had been speaking directly to him when providing that information.  I was going to tie him to those dispatch records and get him to admit that he was aware that the involved was not just a red jeep but a red jeep with damage.

First, I locked the officer down by discussing his training and his reliance on dispatch audio transmissions.  Take a look:

 

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At one point in his direct examination, the officer tried to claim that dispatch had only advised him that the involved vehicle was a red Jeep.  If the officer is able to maintain this, I fear that the judge will let slide the fact that he did not confirm the most critical piece of information, i.e., that the vehicle had significant damage.  My concerns are based on recent cases that permit the police to confirm whatever information they possessed in order to justify a stop and if this officer claims that he only possessed information about the type and color of the vehicle, the judge may let that slide.  However, I decide that if my cross examination is successful that not only will I prove that the stop was not justified but I will also prove that this statement by the officer is a lie.  Accordingly, I lock him into it:

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I gave him a chance to admit that he possessed more information but he denied it.  Instead, he stuck with his direct examination claim — dispatch only told him about the color and type of vehicle — nothing more.

As a part of this cross examination, it was critical to tie the officer to the squad car number that the dispatcher repeatedly used when communicating with him.  In this case, “19-46” was this officer’s number.  As you can see, I tied him to this number rather easily.

Hroba Page 4 X

 

Now that he is locked into a falsehood, his training about listening to and relying on dispatch information and his squad car number, I start to walk him down the primrose path towards my goal by using the dispatch audio recording.  As you will see, the audio recording becomes one of the posts that I repeatedly tie the officer to in order to maintain control over him:Hroba Page 5 X

Using his conversation with the dispatcher, I get him to admit that he was advised that the vehicle was involved in an accident.  I next get him to admit that it is common for vehicles in accidents to have damage.

hroba page 6 x

After the officer concedes that automobile accidents commonly involve damage to the vehicles, I move in for the kill, i.e., “that in this case he knew that the distinguishing factor that separated all red Jeeps from the involved red Jeep was vehicle damage”, the very fact that he denied knowing on direct examination.  To get him to admit it, I tie him to another post:

hroba page 7 x

Having played the tape, he was forced to concede that the dispatcher provided him with information that the vehicle had heavy damage and that he knew it.  Here is how I did it — up to this point, the dispatcher had revealed the following facts: 1) a vehicle was involved in an accident and 2) it should have heavy damage.  After listening to the tape several times, I realized that the dispatcher had not described the type of vehicle.   More importantly, the officer himself, “19-46”, upon hearing that  a vehicle involved should have heavy damage too must have realized that there was no description of the vehicle and so, he asks the dispatcher for the vehicle description.  I decide to tie these pieces of information together to force him to admit that he knew that the involved vehicle had heavy damage and that he was inquiring about the described vehicle.  It worked:

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As you can see, by this point, he was forced to admit that he heard the dispatch about the vehicle with heavy damage and that after hearing that dispatch information, he inquired of what kind of vehicle was involved.  The fact that he inquired, allowed me to 1) loop the heavy damage dispatch several times and 2) tie him to it.  Clearly, since he questioned about it, he could not deny hearing it…and he despite his direct examination testimony and his claims to the prosecutor, he did not:  he admitted that he was aware that the vehicle had heavy damage.

When the officer testified to this fact, the prosecutor looked startled and surprised.  No doubt he was wondering how the officer did not mention heavy damage knowledge in his report or in his direct and even went so far as to claim that he did not know about the heavy damage and then within a matter of minutes into my cross examination, he admitted it.  As you can see, I asked tight questions that tied the witness to his training and his dependence on dispatch information.  After he admitted being trained to listen to dispatch audio transmissions, relying on dispatch audio transmissions and hearing the dispatch audio in this case, he found himself painted into a corner:  he’d have to deny his training, deny hearing the dispatch audio and most importantly, claim to only have listened to one part of a transmission that he personally responded to.  Once I led him down that path, he had no choice but to admit that he was informed about the heavy damage and that he was aware of it prior to the stop.

Controlling a witness with short questions, having a goal when you start a cross, having a plan of attack and tying the witness  to posts, e.g., writings, audio recordings, and the witness’ desire to not look foolish, are all important parts of a killer cross examination.

 

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.
www.rockindlaw.com
www.killercrossexamination.com
248.208.3800