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EFFECTIVE TRIAL ADVOCACY: CROSS-EXAMINATION DISTRICT COURT OF THE VIRGIN ISLANDS MID-YEAR CONFERENCE JULY 11, 2014 PROFESSOR STEPHEN A. SALTZBURG.

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Presentation on theme: "EFFECTIVE TRIAL ADVOCACY: CROSS-EXAMINATION DISTRICT COURT OF THE VIRGIN ISLANDS MID-YEAR CONFERENCE JULY 11, 2014 PROFESSOR STEPHEN A. SALTZBURG."— Presentation transcript:

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2 EFFECTIVE TRIAL ADVOCACY: CROSS-EXAMINATION DISTRICT COURT OF THE VIRGIN ISLANDS MID-YEAR CONFERENCE JULY 11, 2014 PROFESSOR STEPHEN A. SALTZBURG

3 Cross-Examination Purpose: To Argue Your Case to the Jury (or Judge) Through the Witness Strategies 1. Get Favorable Info From Witness (Hitchhiking) –Don’t Assume All Witnesses Will Only Help 1 Side

4 2 More Strategies 2. Limiting or Cabining the Testimony –Pointing Out What the Witness Did Not See or Hear 3. Attack the Witness’s Credibility –You Must Attack When Necessary to Win –You Must Win the Attack –If You Lose the Attack, Your Credibility is Damaged

5 Multiple Tasks It is Possible to Do More than 1 Thing with a W –Might Elicit Favorable Facts –Might Also Attack W as to Facts on Direct Inconsistent Statement as to Opponent’s Facts –Might Limit and Also Elicit Favorable Facts Order of Cross-Exam is Different from Order of Direct

6 Destructive Cross-Examination If you are going to hit a W, draw blood early Jury expects it If you believe you can damage a W, you have to show it early If you strike a heavy blow early, it’s impact is likely to have a continuing effect on the W You want to start strong and end strong with every W This is particularly important with Ws you attack

7 Learn How to Lead: Young Lawyers Need Practice Learn to Lead Young Lawyers Ask “Isn’t it a fact...?” Or “Isn’t it true that... ? Or “... Isn’t that true?”

8 With Experience, Learn to Lead with Statements With More Experience You Can Drop These Words E.g., “You Went to Philadelphia?” E.g., “You were alone?” E.g., “It was dark?” E.g., “You were scared” The X-Exam is Your Opening Statement Broken into Pieces

9 Court Reporters Know They Will Put a Question Mark After Your Statement But Suppose There is an Objection – E.g., “Will Lt. Kaffee Ask a Question Any Time Soon?” Suppose the Court Sustains the Objection

10 No Reason for Fear Next Question: “So, You Went to Philadelphia, didn’t you? Next Q: “Then You Went Home, Right?” Next Q: “And You Went To Bed?” Let an Adversary Object That This is a Statement Not a Q. The Jury Will Decide in the End Whether You Are Asking Qs

11 1. Use Only Leading Questions –Sometimes a Witness Hurts Herself More When She Has to Answer a Non-Leading Question 2. Insist that Witnesses Answer Yes or No –What If They Say They Cannot? 3. Never Ask a Question You Do Not Know the Answer to –Sometimes You Will and Will Not Fear the Answer Reject the Commandments

12 General Rules Commonly Said, Don’t Ask a Q You Don’t Know the A To –Good Rule Generally –But, There are Times You Don’t Care What the Answer Is Any Answer Will Help You May Take Some Experience to Know When Be Very Careful with a “Why” of “How” Q on Cross? –Opens the Door for the W to Repeat Entire Direct –But Never Say Never

13 The Oft-Repeated Idiocy Commonly Said, Don’t Ask the Extra Question –E.g., Direct Exam W Says D Bit off Victim’s Ear X-er Asks “It’s True, Isn’t It That You Never Saw the D Actually Bite the Victim?” Extra Q: “So How Do you Know He Bit It? –A: “I Saw Him Spit it Out” –Failure to Ask the Extra Q Hurts the X-er, Because the Direct Examiner Will Bring Out the Fact and Make it Appear that the X-er Tried to Trick the Jury

14 If You Have a Point, Make It The Fact is that The X-er Should Not Go Down a Road If the End is Unhelpful If You Have a Point to Make on X-Exam, Make It Save Nothing for Closing Argument Jurors are Making Up Their Minds Early Closing Argument Will Be Too Late

15 Telling the W to Answer Yes or No Some Lawyers Like to Tell A W, “Now Just Answer My Questions Yes or No” Good? No, But Why Not? Suggests Lawyer is Afraid of Witness or Truth You Must Learn to Control the W Through Questions Not Orders

16 Listening and Using the Direct Exam in Your X-Exam X-er Must Pay Careful Attention to Direct Don’t Take Notes on a Pad in Chronological Order Order of Cross-Exam is Different from Order of Direct Use Separate Pages or Cards for Each Point

17 Listening and Using the Direct Exam in Your X-Exam Write Down Verbatim What Witness Says that You Want to X-exam on Plan “Lines of Cross” –Different Points You Want to Make Consistent with Your Theme –Put Witness’s Direct Testimony Where it Fits Remember that Your Theme Was Laid Out in the Opening –X-Exam Drives Home that Theme

18 Cheating Witnesses Some Ws will Cheat As Terry MacCarthy (Federal Defender, Chicago) Says, “There are Ws Who, Like Puppies, Want to Tinkle on Your Floor” E.g., You Ask, “So After You Met with the Plaintiff, You Went to Johnny’s Bar & Grill? W Answers: “So What, Your Client Goes There All the Time.”

19 When a W Cheats and Answers a Q Not Asked, the Answer (Part or All) is Nonresponsive Only the Questioner Has This Objection If the Questioner Does not Care that W Gave More than Was Asked, No Harm Done If an Answer is Nonresponsive and also Reveals Inadmissible Info that Hurts, You Must Object and Move to Strike or the Inadmissible Info Stays in the Case Non-Responsive, Inadmissible and Hurtful

20 Example of an Answer that is Nonresponsive and also Reveals Inadmissible Info Q. Did You go to Johnnie’s Bar After the Accident? A. So What, Your Client Got Into a Fight There a Year Earlier and Tried to Kill a Police Officer. If the Testimony About the Fight is Inadmissible, You Must Move to Strike or the Testimony Remains in the Case Example of Non-Responsive, Inadmissible and Hurtful

21 Don’t Appeal to the Judge Unless You Have To If an Answer is Nonresponsive but Merely Reveals Admissible Info that Will Come Out Later or is Otherwise Harmless, Don’t Appeal to the Judge Judge May Not Be Paying Attention Judge Might Rule for the W –Makes You Look Bad You Look Weak –Looks Like You Need the Judge to Help You with the W

22 Show That the Witness is Cheating w/o The Help of the Judge How? Ask the Cheating W the Same Question Again in the Same Words Don’t Ask the Court Reporter to Read the Q Back –They Can’t Find Anything –Takes Too Long You Ask the Same Q Again

23 Ws Always Try to Save Themselves A W Will Always Pick Him/Her Self Rather than the Party Who Called the W Rules and Laws of Probability Matter W Does Not Want to Look Like a Liar or Fool

24 Ws Always Try to Save Themselves A W Will Always Pick Him/Her Self Rather than the Party Who Called the W Rules and Laws of Probability Matter W Does Not Want to Look Like a Liar or Fool

25 July 17, 1997 Cross-Examination of Government Tanker Expert Testimony of David St. Amand — Illustrating How Not to Appeal to the Judge Maritrans Sues US Claiming a Taking When US Passes Statute Barring Use of Single Hull Tank Barges Maritrans Hired an Expert, David St. Amand, Who Had Agreed to Be in a Partnership with a Retired Maritrans V.P., James Sanborn, Who Clearly Would Be an Important Witness in the Case for Maritrans St. Amand Agreed to Be a Govt Expert Without Consulting Sanborn When Sanborn Learned What St. Amand Did, the Partnership Ended

26 July 17, 1997 Cross-Examination of Government Tanker Expert Testimony of David St. Amand -- Illustrating How Not to Appeal to the Judge QJim Sanborn, and I wrote this down. I think I have the words right. He is an extremely trustworthy person. That was your quote. Is that not true? AThrough Monday I would have said he's one of the most ethical people I know. * * *

27 July 17, 1997 Cross-Examination of Government Tanker Expert Testimony of David St. Amand -- Illustrating How Not to Appeal to the Judge QYou had to know that he might be a witness in this case. AI didn't know where his relationship with Maritrans stood after he left the board. QYou did work for Maritrans, you have said. You did not know he was the vice- president in charge of operations in 1987, the year this entire case revolves around? AOh, yes. I was very much aware.

28 July 17, 1997 Cross-Examination of Government Tanker Expert Testimony of David St. Aman -- Illustrating How Not to Appeal to the Judge * * * QYou were in this relationship where you have agreed with him you are going to do the tug and barge stuff, yet you decide that you are going to take on the possible role of becoming a witness and put yourself directly in conflict with the person who have a business relationship with? AI don't think I would characterize it that way.

29 July 17, 1997 Cross-Examination of Government Tanker Expert Testimony of David St. Amand -- Illustrating How Not to Appeal to the Judge QWe seem to have to be here in exactly that position, do we not? AWe do now, but you are saying what was my frame of mind when I took on the assignment, and that wasn't my frame of mind. I didn't know how Jim was going to react.

30 July 17, 1997 Cross-Examination of Government Tanker Expert Testimony of David St. Amand -- Illustrating How Not to Appeal to the Judge QYour frame of mind was you wanted the money, right? AI'm in business as a consultant. I'm not in business to turn down jobs. QYou wanted the money? AAnd I thought I was being asked to work for the correct party. QYou wanted the money?

31 July 17, 1997 Cross-Examination of Government Tanker Expert Testimony of David St. Amand -- Illustrating How Not to Appeal to the Judge MS. MOORE: Objection, Your Honor. This is unduly argumentative. He has asked the same question three times, and it is irrelevant. THE COURT: But he has not answered it yet. I suppose it is implied, but if you answer it he will move on, I guess. MR. SALTZBURG: I will. I promise. I will only ask it once if I get an answer.

32 July 17, 1997 Cross-Examination of Government Tanker Expert Testimony of David St. Amand -- Illustrating How Not to Appeal to the Judge BY MR. SALTZBURG: QYou wanted the money? AI would like to be hired on this job, yes. QYou wanted the money? Was that a yes to my question? AYes. I want to be paid for working on this job.

33 Do Not Fear the Evasive or Cheating Witness When a W Fights the Examiner on a Point the W Cannot Win, the End Result is to Bolster the Credibility of the Examiner and to Damage the W Greatly Do Not Fear Ws Who Try to Fight the Impossible Fight –They Give You Gifts

34 1. Prior Inconsistent Statements –Lawyers Preparing for Trial Want to Obtain as Many of These as Possible 2. Credibility Attacks –Case Specific Prior Inconsistent Statements and Bias –General Attacks Convictions, Reputation, Bad Acts 3. Rules and Laws of Probability 3 Tools of Cross-Examinaiton

35 Prior Inconsistent Statement Don’t Wind Up –Do You recall having your deposition taken? –You came to my office? –Your lawyer was present? –You took an oath like the one you took today? –You were physically and mentally okay?

36 Impeachment Must Be Immediate and Clear Pit the Witness’ Trial Testimony Against the Prior Statement So that the Contradiction Cannot Be Missed Q. “Now, sir, you have just testified to this jury that you went to Philadelphia after this meeting. Do you recall that when your deposition was taken on May 3, 2003, you were asked this question and gave this answer [page 20, lines 4- 8]: ‘Q. Where did you go after the meeting?’ ‘A. New York.’ Do you recall that Q and that A?”

37 Prior Inconsistent Statement Page and Line Numbers Avoid Interruptions and Satisfy Rule 613 (b). Once You Have the Contradiction, You Can Point Out that the Depo Was Under Oath, with Counsel Present, etc. Make the Jury Understand the Contradiction in the Moment Don’t Let the Witness Blurt Out an Explanation Before You Make the Accusation

38 Criminal Defendants are Often Convicted on the Basis of Testimony from the “Worst of the Worst” Jurors Understand That Even They Sometimes Tell the Truth Jurors Are Looking for the Truth, Not to Punish Witnesses for Past Acts Bad Character and False Testimony Together is Likely Fatal Credibility Attacks Alone Don’t Often Win Cases

39 Jurors Vote on Every Q and Every A If They Agree with the Cross-Examiner and Reject the Witness, the Cross- Examiner’s Rule I Soars and the Witness’s Credibility Suffers Along with the Opposing Lawyer’s Rule I If the Jurors Agree with the Witness, the Reverse is True Rules and Laws of Probability

40 The Cross-Examiner Need Not Cross- Examine on Everything Said on Direct and Can Choose and Avoid Subjects A Witness Who is Hurt Badly During Cross-Examination on One Subject May Lose Credibility on All Subjects The Converse is True If a Witness Survives Cross-Examination on One Subject The Cross-Examiner’s Advantage

41 How to Maintain Your Own Credibility No cheap shots No trick questions No quibbling No demeaning the W unless the W has shown he/she deserves it Argue through the W, not with the W No rudeness Make the jurors vote for you

42 Last Word Juries are likely to empathize with Ws not Lawyers But, if a W cheats and you show it to the jury, they will respond appropriately No one likes a bully, especially a bullying lawyer But, no one likes a W who appears biased and who disrespects the process


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