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.

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