Cross examining the detective who obtained your client’s confession.

By Kevin J. Mahoney

Excerpted from Relentless Criminal Cross-Examination

Written Statement Is Invalid

Strategy

Few criminal defense attorneys seem willing to challenge written statements, particularly those signed by the client. No doubt, few clients are up to the task of credibly testifying to having signed a confession they knew to be untrue. The detectives, though, can be cross-examined so thoroughly that the jury will lose faith in the validity of the written statement. The client, after all, did not type that statement, did not choose the words used, did not decide what was included and what was excluded, and either did not appreciate the significance of the word choices and omissions or was too resigned and overcome with mental fatigue to challenge the detectives.

§4:31     Angles of Attack

  • Detective typed out the questions and answers that make up the statement. [§4:32.1]
  • Six hours of interrogation is reduced to 11 pages and 37 questions. [§4:32.2]
  • At least 100 questions were asked during the interrogation, but only 37 are represented in the statement. [§4:32.3]
  • The statement is a summary of what the defendant said during the interrogation. [§4:32.4]
  • The detective chose the words that went into the statement. [§4:32.5]

§4:32     Pattern Cross

§4:32.1  Detective typed out the questions and answers that make up the statement.

Q:  Instead of a videotape, we have a written statement?

A:  Yes.

Q:  It is done in a question-and-answer format?

A:  That’s correct.

Q:  Like it was taken down by a transcriptionist?

A:  Yes.

Q:  Like the court reporter, here?

A:  Ah, yes.

Q:  As if this is a verbatim account of what was asked?

A:  Yes.

Q:  And what was answered?

A:  Yes.

Q:  But it was not typed by a transcriptionist. It was typed by you, Detective?

A:  Yes.

Q:  You didn’t go to secretarial school?

A:  No.

Q:  You’ve not been rigorously tested, like the court reporter?

A:  No.

Q:  Tested and tested again to make absolutely sure that you take down everything accurately?

A:  No.

Q:  You can’t type as fast enough to take down a conversation in verbatim form?

A:  No.

Q:  So, while this is portrayed in a question-and-answer format, it is really a summary?

A:  Well, the questions represent what we asked him, and the answers represent what he said.

Q:  You didn’t take down the questions verbatim?

A:  No. Not verbatim. But it’s very close.

Q:  And the answers were not taken down verbatim?

A:  No. Not verbatim.

Q:  If I had you read this Q-and-A aloud for the jury, it wouldn’t take you more than five minutes to read?

A:  I don’t know. About that, I suppose.

Q:  So, unless there was five hours and fifty-five minutes of silence, this Q-and-A represents a summary of what was said?

A:  Okay.

Q:  Is that a yes?

A:  Yes.

§4:32.2  Six hours of interrogation is reduced to 11 pages and 37 questions.

Q:  You interrogated Mr. Smith for almost six hours?

A:  Yes.

Q:  Yet this written statement is only 11 pages long?

A:  Correct.

Q:  There are only 37 questions?

A:  I’m not sure about the number of questions?

Q:  Kindly examine the statement please, Detective.

A:  Yes, there are 37 questions.

Q:  And 37 answers?

A:  Yes.

Q:  In a 10-minute conversation, you could ask someone more than 37 questions?

A:  I could.

§4:32.3  At least 100 questions were asked during the interrogation, but only 37 are represented in the statement.

Q:  During a six-hour interrogation, you must have asked Mr. Smith over 500 questions?

A:  We didn’t ask him that many questions. I spent a lot of time typing.

Q:  You asked him at least 250 questions?

A:  I don’t know.

Q:  At least 100 questions?

A:  I’m sure we asked him many questions.

Q:  At least 100 questions?

A:  Yes.

PRACTICE POINT:

Gain obvious concessions that will resonate with the jury.

Use cross-examination to gain obvious concessions from the interrogating officer, such as the number of questions posed. If only 37 of the more than 100 questions asked are represented, most of what was said is unaccounted for. Might the missing dialogue be crucial to the jury’s understanding of the so-called confession?

Q:  So of the 100 questions, only 37 are represented?

A:  Correct.

Q:  Sixty-three questions are missing?

A:  Well, I don’t know if they are missing. Some were repeated.

Q:  Repeated or not, 63 questions are unaccounted for?

A:  Yes.

Q:  And, therefore, 63 answers are missing?

A:  Everything Mr. Smith said is represented in that statement!

Q:  Mr. Smith gave at least 100 answers?

A:  Yes.

Q:  And only 37 answers are represented?

A:  Yes.

§4:32.4  The statement is a summary of what the defendant said during the interrogation.

Q:   So, some of the answers represented are summaries of more than one answer?

A:  That’s probably true.

Q:  Mr. Smith did not decide how these answers would be summarized?

A:  No.

Q:  You decided how they would be summarized?

A:  Well, yes.

Q:  And because you were not able to type sufficiently fast, you were always playing catch-up?

A:  Yes.

Q:  Relying on your memory of what was said?

A:  Yes.

§4:32.5  Detective chose the words that went into the statement.

Q:  You decided what words to use?

A:  I used the words he used.

Q:  You decided what to include?

A:  I included everything.

Q:  You decided what to exclude?

A:  I did not exclude anything.

Defendant’s Signature Is Meaningless

§4:33     Strategy

By having the suspect initial each page and sign the final page of the statement, the detectives hope to neutralize any efforts by the soon-to-be-defendant and his attorney to claim that the defendant never adopted the statement as his own. Presented with a written statement, some suspects finally begin to appreciate the consequences of having been enticed into making a statement. It is only then that some cry for their lawyers, as if their words, their confessions and admissions, can be retracted by sharp lawyering. Many suspects sign the statement; most, perhaps, without even reading it. Those who do read the statement may be too overwhelmed or too resigned to challenge its accuracy. Some, sadly, continue to believe that the detectives will stand by their offer to help them. Few detectives really want the suspect to review the statement; inviting scrutiny of any kind at this moment could prove disastrous. From the detective’s perspective, it is better to include a line stating that the defendant acknowledges having read the statement in its entirety, and to rush the defendant to sign it.

You can undermine the importance normally attached to a signature by demonstrating, through cross-examination, that the defendant was given no real opportunity to review “his” statement.

§4:34     Angles of Attack

  • Detective found today’s court testimony grueling, but it was mild compared to Defendant’s interrogation. [§4:35.1]
  • Defendant was asked to read and approve 11 single-spaced pages after more than six hours of interrogation. [§4:35.2]
  • Defendant had not slept or eaten for days, and was experiencing a cocaine crash. [§4:35.3]
  • Detective watched the defendant “read” and sign each page. [§4:35.4]
  • Defendant did not point out obvious errors in the statement. [§4:35.5]

§4:35     Pattern Cross

§4:35.1  Detective found testimony grueling, but it was mild compared to Defendant’s interrogation.

Q:  You’ve been on the stand now, almost three hours?

A:  Yes.

Q:  It’s been a little grueling, hasn’t it?

A:  Yes, it has, Counselor.

Q:  You’re a little fatigued, no?

A:  A little.

Q:  But you’ve been on the stand before, haven’t you?

A:  Yes.

Q:  This isn’t unfamiliar territory?

A:  No.

Q:  And you’re not here alone?

A:  What do you mean?

Q:  There is a judge here to oversee the questioning?

A:  Yes.

Q:  There is a prosecutor to object to questions?

A:  Yes.

Q:  You had some idea what you’d be asked?

A:  Not everything you’ve covered, Counselor.

Q:  You know you can ask for a break, if you need one?

A:  True.

Q:  You slept well last night?

A:  I did.

Q:  You ate breakfast?

A:  Yes.

Q:  And lunch?

A:  Right.

Q:  And yet this has been grueling?

A:  It’s not that bad.

Q:  You told me not two minutes ago, Detective, that it was grueling, no?

A:  Yes.

§4:35.2  Defendant was asked to read and approve 11 single-spaced pages after more than six hours of interrogation.

Q:  You typed the statement into your laptop?

A:  Yes.

Q:  It was tedious work?

A:  Yes.

Q:  When you finished, you printed it out?

A:  Yes.

Q:  It was 11 pages long?

A:  Yes.

Q:  Single spaced?

A:  Right.

Q:  It was now 5:50 a.m.?

A:  Correct.

Q:  Except for one break, Mr. Smith had been in that room for almost six-and-a-half hours?

A:  Yes.

Q:  The room with no ventilation?

A:  Yes.

Q:  With you and Detective Dickman?

A:  Yes.

§4:35.3  Defendant had not slept or eaten for days and was experiencing a cocaine crash.

Q:  During this interrogation, Mr. Smith informed you he had not slept the previous night?

A:  Ah, yes, that’s true.

Q:  At almost 6:00 a.m., he had been without sleep for 43 hours?

A:  I’m not sure. I believe that’s probably true.

Q:  He told you he had been smoking crack cocaine?

A:  Yes.

Q:  Almost continually?

A:  Yes.

Q:  From your training and experience, you know cocaine is a stimulant?

A:  Yes.

Q:  You also know from your experience that once an individual stops taking the stimulant, he will “crash”?

A:  Well, I’m not a medical physician.

Q:  I’m not asking you, Detective, for a medical opinion. I’m asking, you know from your training and experience that once an individual stops taking a stimulant, particularly a strong stimulant, he will “crash”?

A:  Yes, that’s probably true.

Q:  You went through this series of events with Mr. Smith at least three times?

A:  Yes.

Q:  And not once did he mention eating anything during that 48 hour period?

A:  Ah, he mentioned going to a convenience store.

Q:  To buy cigarettes and scratch tickets?

A:  Ah, yes.

Q:  He didn’t mention buying anything else?

A:  No, he didn’t.

§4:35.4  Detective watched the defendant “read” and sign each page.

Q:  At 6:00 a.m., you handed Mr. Smith an 11-page document, typed single-spaced?

A:  Yes.

Q:  You made sure he initialed each page?

A:  Yes.

Q:  You made sure he signed the last page?

A:  Yes.

Q:  You included a line, at the very end, in which he, Mr. Smith, acknowledges that he read the statement and agreed with what was written?

A:  Yes.

Q:  Obviously, you typed that before Mr. Smith had read the statement?

A:  Yes.

Q:  Or stated or acknowledged agreeing to what was represented in the statement?

A:  Yes.

Q:  Mr. Smith did not read this statement, did he, Detective?

A:  I handed him the statement. He appeared to be reading it. He initialed each page and signed the last page.

Q:  He told you he was too tired to read the statement?

A:  No, sir.

Q:  He read the whole statement?

A:  Yes, he appeared to be reading it.

Q:  Reading it carefully?

A:  Ah, yes.

§4:35.5  Defendant did not point out obvious errors in the statement.

Q:  You testified on direct that you told him to point out any errors?

A:  Yes.

Q:  And according to you, he saw no errors?

A:  Correct.

Q:  He read it so carefully that he overlooked you having misspelled his name on the very first page?

A:  Ah, I didn’t realize I misspelled his name.

Q:  No, Detective, and, apparently, neither did Mr. Smith. And he overlooked that you wrote that he owned the Taurus, rather than the Accord?

A:  Ah, I’m not sure.

Q:  You would expect Mr. Smith to know which car he owned, no?

A:  I guess.

Q:  Yet you claim that this emaciated, sleep-deprived individual reviewed this document after six hours of grueling interrogation?

A:  That what I said.

PRACTICE POINT:

No review renders signature meaningless

It is crucial to demonstrate that the accused did not review the statement; if he didn’t review the statement, then his signature is meaningless. By showing that the detective rushed the accused through this review period, you can make the jury suspect that he slipped some “facts” by the accused. Use any chance you’re given to undermine the detective’s credibility.


Kevin J. Mahoney has won 36 of his last 38 trials.  Since 1993 he has practiced solo, specializing entirely in criminal defense.  He recently persuaded juries to acquit a broken man of motor vehicle homicide, a father wrongly accused of rape, a woman wrongly accused of bank robbery, a young man falsely accused of assault with intent to rape, and a decent man maliciously charged with assault and battery with a dangerous weapon.  He is the author of Relentless Criminal Cross-Examination, from which this article is excerpted.