1. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF DEFENSE WITNESSES/EXPERTS Sponsored by CDAA Presented By Rosalind Russell, Los Angeles Deputy City Attorney Los Angeles Deputy City Attorney 1.The best answer is never at the beginning of opposing counsel’s direct. The witness for the other side will often have rehearsed his or her answers to questions posed by the attorney favoring them. It is very common for lawyers to ask questions in the chronological order that the events took place. Of course this is logical and helpful for direct examination for many reasons. You want your evidence to come forth in an organized and logical fashion; however when you are cross examining a witness, one of your goals is to take that person out of their comfort zone.

2. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF DEFENSE WITNESSES/EXPERTS ALWAYS START YOUR CROSS EXAM WITH A QUESTION THAT SUPPORTS YOUR THEORY OF THE CASE. ALWAYS START YOUR CROSS EXAM WITH A QUESTION THAT SUPPORTS YOUR THEORY OF THE CASE. For example, if a person has red eyes, slurred speech, unsteady gait and is unable to successfully perform three FST’s, this would be consistent with being under the influence of alcohol correct? NEVER START YOUR QUESTIONS IN THE CHRONOLOGICAL ORDER THAT THE EVENTS OCCURRED. NEVER START YOUR QUESTIONS IN THE CHRONOLOGICAL ORDER THAT THE EVENTS OCCURRED. Most witnesses have rehearsed their testimony. Take them out of their comfort zone by starting your questions in an area they don’t expect.

3. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF DEFENSE WITNESSES/EXPERTS KNOW WHAT POINTS YOU WANT TO MAKE KNOW WHAT POINTS YOU WANT TO MAKE Ask questions that will benefit your case. Don’t ask questions to just fill up the time. All questions should be geared towards getting answers that support your theory of the case.

4. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF DEFENSE WITNESSES/EXPERTS KNOW WHERE YOU ARE GOING WITH YOUR EXAMINATION. KNOW WHERE YOU ARE GOING WITH YOUR EXAMINATION. Determine what you want to do with the answers you receive. Do you want to follow up on some of the answers?; or do you want to wait and bring the answers back up to the witness later in the examination.

5. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF DEFENSE WITNESSES/EXPERTS KNOW WHEN TO MOVE ON FROM A PARTICULAR SUBJECT. KNOW WHEN TO MOVE ON FROM A PARTICULAR SUBJECT. If you are not making any points, move on. If the judge is consistently sustaining objections made by the defense, move on.

6. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF DEFENSE WITNESSES/EXPERTS ALWAYS GET YOUR QUESTION(S) ANSWERED. ALWAYS GET YOUR QUESTION(S) ANSWERED. Get the question you want answered. Don’t allow the witness to change your question to fit their desired answer.

7. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF DEFENSE WITNESSES/EXPERTS CONTROL THE EXAMINATION. CONTROL THE EXAMINATION. NEVER ALLOW THE WITNESS TO CONTROL THE EXAMINATION BY BEING EVASIVE. NEVER ALLOW THE WITNESS TO ASK YOU A QUESTION. OBJECT TO ANSWERS THAT ARE NON RESPONSIVE. ASK THE COURT TO STRIKE THE ANSWER. DON’T HESITATE TO REPEAT THE QUESTION(S) AFTER REPEATED NON- RESPONSIVE ANSWERS.

8. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF THE DEFENSE WITNESSES/EXPERTS CAREFULLY LISTEN TO THE ANSWERS THAT THE WITNESS GIVES. CAREFULLY LISTEN TO THE ANSWERS THAT THE WITNESS GIVES. USE THE ANSWERS THAT THE WITNESS GIVES AGAINST HIM OR HER. KEEP YOUR QUESTIONS SIMPLE AND IN A COMMON SENSE FASHION.

9. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF THE DEFENSE WITNESSES/EXPERTS MAKE THE EXPERT KEEP HIS OR HER ANSWERS SIMPLE. HAVE PREVIOUS TRANSCRIPTS ON HAND TO IMPEACH THE EXPERT IF THE OPPORTUNITY ARISES. KNOW WHAT ISSUES THE EXPERT IS INCONSISTENT ON IF ANY.

10. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF THE DEFENSE WITNESSES/EXPERTS HIGHLIGHT ACTIONS BY THE DEFENDANT THAT SHOW IMPAIRMENT. GET WITNESS TO AGREE THAT THESE ACTIONS ARE CONSISTENT WITH IMPAIRMENT.

11. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF THE DEFENSE WITNESSES/EXPERTS HIGHLIGHT TESTIMONY BY THE EXPERT THAT SUGGESTS THAT HE OR SHE IS SPECULATING ON ANY ISSUE IN THE CASE. POINT OUT THAT THE EXPERT NEVER MET THE DEFENDANT PRIOR TO THIS INCIDENT. PRESENT A HYPOTHETICAL THAT WILL BENEFIT YOUR CASE.

12. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF THE DEFENSE WITNESSES/EXPERTS HIGHLIGHT THE BIAS/WEAKNESSES OF THE EXPERT’S TESTIMONY HIGHLIGHT THE BIAS/WEAKNESSES OF THE EXPERT’S TESTIMONY POINT OUT THAT THE EXPERT IS A PAID WITNESS. POINT OUT THAT THE EXPERT WAS NOT AT THE SCENE OF THE ARREST. POINT OUT THAT THE EXPERT HAS NO EVIDENCE TO SHOW THAT THE INSTRUMENTS USED TO TEST THE DEFENDANT’S BLOOD ALCOHOL LEVEL WASN’T WORKING PROPERLY.

13. This program is funded by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration CROSS EXAMINATION OF THE DEFENSE WITNESSES/EXPERTS MAKE EVERY EFFORT TO END YOUR CROSS EXAMINATION OF ANY WITNESS WITH A STRONG POINT. MAKE EVERY EFFORT TO END YOUR CROSS EXAMINATION OF ANY WITNESS WITH A STRONG POINT.