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A Look At Attorney James “Jim” Amberg’s Cross Examination Of An Informant

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There’s a popular saying about how there are different ways to do something.  For example,

there’s more than 1 way to skin a cat.

In essence this sayings means that there are different ways to express the same sentiment or thought:

different people have different ways to doing the same thing and both ways may be quite effective as well.

While I have developed a style of cross examination that I refer to as “Killer Cross Examination” that is based on my style, personality and approach, there are other extremely effective lawyers that cross examine a different way.  Some are extremely effective and have the results to prove it.   In other words, my approach is not the only way to “skin the proverbial cat.”   And like an artist who can appreciate the artistry of another painter’s work, I too can appreciate the beauty and craftsmanship in another lawyer’s cross examination style.   Today, we take a brief look at my friend, James “Jim” Amberg’s style of cross examination by examining his cross examination of an informant, Marcus Harvey, in a drug/RICO trial.

About Jim Amberg

A bit about our subject, Jim Amberg, before we examine his cross examination style for while the words appear on the page, they gain more impact if you can picture the actual live examination.  To do that, we have to describe Jim a bit.

First, Jim is nothing if not energetic, passionate and excited.  Literally.   Jim is a bright light — from the moment you meet him until he leaves, he is full of energy.  Not angry energy mind you … but energy that is infectious and captivating .   I wouldn’t want Jim’s voice and energy to be the first thing I see and hear in the morning upon waking after a long night of drinking with little sleep but it is just the sort of energy that I’d want in someone who was leading me into battle or leading me my team onto the football field.  Jim’s demeanor and energy can get you fired up.

Second, Jim is funny.  He makes no apologies for his sarcasm but when he is sarcastic, he is so with a smile on his face rather than a sneer.  He almost appears to be enjoying his own humor.

Last, Jim is fearless.  I’ve seen him in court and he relishes the fight.

The Case – The Informant-Witness

With that as the backdrop, Jim was defending a young man who was accused of participating in a local gang that wrecked havoc in Detroit, Michigan.  This gang regularly participated in drug deals, handgun acquisitions, robberies and murder.  Each of the young men involved were accused of killing people at various times of their young lives.  One young man in particular was arrested and accused of participating in the gang organization.   He faced a sentence that would have likely resulted in his incarceration for life.  However, the young man decided to cooperate with the federal authorities and talk on others.  Despite several meeting with agents, he never once mentioned Amberg’s client.  Looking for an even more favorable deal, the witness mentioned Amberg’s client in a late, late debriefing.  Amberg sought to exploit the following on cross examination:

  • The witness’ own culpability;
  • The witness’ plea and sentence deal that would spare him a life sentence;
  • The witness’ involvement relative Amberg’s clients, i.e., that the witness was more involved yet was cooperating with the government against his relatively uninvolved client;
  • The witness’ omissions in earlier interviews;
  • The witness’ failure to mention his client immediately;
  • Contradictions between the witness’ story and the DEA reports; and,
  • The overall character of the informant.

Amberg did an excellent job demonstrating how incredible the informant-cooperating witness was when he cross examined him recently.  Here are excerpts:

Challenging The Witness’s Claims – Tying Him To A Post

I like to call this practice tethering the witness to a statement or “tying him to a post.”  The lawyer is in possession of a statement that the witness made elsewhere and has the ability to prove that the witness made the statement.  The witness is effectively tethered to it, i.e., admit it or deny at your own peril and be cross examined about it.  You tie him to the post.

If the witness denies the statement, he is impeached with 1) the fact that he is refuting his own words and 2) ultimately by the testimony of the person that took or heard the statement.  Here is an example of Amberg did that here:

Amberg - Cross Sample Page 1

Notice how Amberg actually uses “memory” and “denials” to emphasize the witness’ denial about that statements, eg, you don’t remember saying or you didn’t say, etc.  He is reminding the jurors that the witness’ claim is not believable.

Something else he does is pit the witness against the government agents or police officers.  By asking the witness questions like, “So, if Agent [so and so] put that in his report, he must have been wrong?”, he is directly forcing the witness to choose between contradicting himself or contradicting the agent.  When the witness indicated that the agent must’ve been wrong, the witness lost much credibility.  This is well done.

Here, Amberg discusses omissions with the witness.  Pointing out what a witness said is important but so is pointing out what a witness omits.  Here, despite sitting down to discuss others involved in crime as a part of a cooperation agreement, the witness never mentions Amberg’s client.  Amberg points this out by discussing the absence.

Here is another example of tethering the witness to a statement.

Amberg - Cross Sample 3

Amberg tied the witness or tethered the witness to another post — this time a tape recorded interview between the witness and the police.   When the witness acknowledges the interview, Amberg moves in for the kill to point out what the witness did and did not talk about.   As you can see, this is not the first time the witness has ducked what he told agents in those interview sessions.  First, he denies making certain statements in an interview, then testifies that the agent must’ve been wrong and now the witness is disputing a tape recording.  With each answer, Amberg is stretching the witness past the point of believability.

Humor To Finish Him Off

I am a firm believer in using humor where one can to make a point.  A laughing jury is not a hanging jury, an old saying goes.  Amberg is from the same school.

The witness has testified that money given to him was not for marijuana or pot.  He has testified to picnics, parties and barbecues however.  Amberg combines the two and the use of the word “pot” to point out the absurdity in the witness’ testimony and to convey what he thinks of it:

Amberg - Sample Cross 9

Did you see it?

so it might not have been pot money, it might have been potluck money

Amberg is finishing him off with humor.  The refusal of the witness to concede that the collected money by a group dealing drugs was for drugs/pot is silly.  There was no reason for the witness to deny this claim other than his desire to avoid admitting to more crime or his feeling that Amberg had made him look and sound untruthful.  Rather than admit it, he chose to sound even more untruthful.

Amberg gave him just enough rope for the witness to figuratively hang himself.  This too was well done.

The lesson in Amberg’s cross examination is simple:  use your own personality to challenge and cross examine witnesses.  Amberg does this well.  He uses wit, humor and smarts to force the witness to be his own worst enemy.   Amberg literally gave this witness a chance to tell the truth, i.e., “I needed more people to throw under the bus and so I picked on your client” and when the witness didn’t admit that, Amberg forced him to admit everything but …

Neil Rockind, Rockind Law
Criminal Defense Lawyer

A Comment On My Cross Examination Style

Killer Cross Examination.  Yes, that is my style. Not fire breathing. Not screaming. Not pounding the table. Real, methodical, surgical cross examination that points out the lack of candor by a witness.  This is what people think of when they they think of a killer cross examination:


This is what a killer cross really looks like:


Chess playing. Strategizing. Planning.  Laying traps. You get the point.

A client of ours recently watched us utilize these skills to dissect witnesses that testified against her. She was vindicated. Here is description of our cross:


Killer Cross Examination.

Killer Cross Examination Is Effective

While we normally don’t put quotes or testimonials on this website and instead reserve it for cross examination pieces and excerpts, I thought it appropriate here.  We just finished an OWI/DUI – 3rd Offense trial in which our client was acquitted.  Every one of the state’s witnesses testified “for the defense.”  How is that possible?  Killer Cross Examination.  

The client, publicly, shared her observations of the effectiveness of the style in a recent post on www.Avvo.com :

“He strategically cross examines the witnesses against you in a way that I think they even start to believe that they’re wrong for even being against you.”

Stay tuned for more cross examination tips from Neil Rockind, author of killer cross examination.

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.

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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:

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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.

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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 —

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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.

Creating Something From Nothing | Killer Cross Examination

It happens many times.  I sit down and start reading through police reports in the case and the case looks bleak or there appear to be too few issues for us to challenge.  I look at the case from different angles and perspectives and still see very little.  This has happened to every lawyer.  Some admit it.  Some don’t.  However, it is at these moments that the great lawyers separate themselves from the pack — they create something from nothing.

Young lawyers want to know, when they reach these points:

What should they do?

How do good lawyers get past those points and moments?

How can they learn to do it?

These questions are not easily answered.  Some lawyers learn how to handle these situations and some don’t.  However, make no mistake about it … in these moments you must create something out of nothing.  You must look past the words on the page, imagine what was happening and taking place, imagine whether what the police claim they observed is in fact reliable or is what you imagined occurring more believable.  Make no mistake about it, I do not mean lie … I mean be creative:

“see what is there to be seen but that which is not obvious.”

Once you imagine a strategy, you’ve got to bring it to life and there is no surer way than by using a killer cross examination. Let me show you an example from a case that Rockind Law handled and won where the police reports seemed bleak but I saw what was there to be seen but that which was not obvious and then used a killer cross examination to bring it to life.

In this case, our client was caught with pounds of marijuana in a backpack in his car.  What was particularly troubling was that the cop claimed that our client made damning admissions during the traffic stop.  What’s worse?  The traffic stop and encounter was recorded and … our client did make damning admissions to the officer.   While our client was talking to the officer, he was not in handcuffs, was in his own car and was not told that he was under arrest.  It seemed like so many traffic stops and sad to say, our Supreme Court has already previously ruled that roadside questioning during a traffic stop does not ordinarily give rise to Miranda warnings.  Except when I watched the squad car video, I noticed that from the start, the officer ordered our client to keep his hands outside the window of his, an extremely unnatural position.  Worse, after playing and replaying the video, I captured one moment where the officer “threatened” our client with physical action if he moved his hands.  I decided to attempt to turn these facts into a claim that our client was “detained”, “in custody” and thus interrogated by the officer without the benefit of Miranda.  Take a read:

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Notice how I took two (2) simple details, (1) the officer ordering our client’s hands to be outside of the car window and his not having access to his hands to do even the simplest things, e.g., rub an eye, scratch an itch, and (2) the officer’s threat (on video/audio) when our client started to gesture towards his bag, and weaved them into a comparison to “custody”, “the functional equivalent of being handcuffed” and his “freedom of movement being deprived in a significant way.”  As a result, the damning statements that came during that period of time were excluded as the product of “custodial interrogation” without Miranda warnings.

The next time that you’re struggling with a case, take a step back and think outside the box.  You have look past the words and see what is not easily seen or readily apparent.  Once you do, use a killer cross examination to bring that strategy to life.

About Neil Rockind

Neil Rockind is a criminal defense trial lawyer with Rockind Law, a Michigan law firm that handles only criminal defense cases.  Neil Rockind has been awarded nearly every award and honor given out to lawyers, including being named a Leader in the Law, a Super Lawyer, the Best of Detroit, a Leading Lawyer and among the Top 10 Criminal Defense lawyers in the state.  Neil Rockind is also the WDIV-TV legal expert commenting on legal issues and is often sought out for commentary by radio and newspaper reporters.  Both Neil Rockind and Colin Daniels, attorneys with Rockind Law, have been named Super Lawyers by Thomson Reuters.

Answer The Question

It has been too long since my last installment of killercrossexamination. I’m sorry about that. Lot’s going on…new website (www.rockindlaw.com), new award (Leader in the Law), television appearances (WDIV), etc.  Still, there is no excuse for not writing about my passion – great cross examination.  So here is a short but fun piece on “getting the cop to answer.”

I have many methods that I use to get the reluctant witness to answer. One of my favorites though is to ask the officer a simple question:

If you don’t want to answer my question just say ‘I don’t want to answer that question’

It focuses everyone’s attention on the evasiveness of the officer’s answers.  Here is an example where the officer didn’t want to admit that my client’s freedom of movement was deprived in a significant way, ie, the standard for custody.

Notice how he wouldn’t answer the question until I asked him simply, “if you don’t want to answer it, just say so.” At that point, he answers the question that he had been evading for nearly a page of testimony.

I have more to share on cross examination and many more transcripts to reveal.  However, I too long neglected updating this killer cross examination blog and wanted to take a moment to remind everyone that when it comes to cross examination, there is no better way than my way: killer cross examination.

About Neil Rockind
Neil Rockind had received nearly every accolade or honor as a criminal defense lawyer. He is the founder of Rockind Law, a criminal defense firm in Michigan. He is also the WDIV-TV legal expert commenting on law related issues and high profile cases.

 

 

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.

 

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.

 

Hroba Real Time 4

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.

 

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