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Confront the facts; do not downplay the terror of the incident.

By Thomas J. Farrell

http://jamespublishing.com/shop/relentless-criminal-cross-examination/

Excerpted from Relentless Criminal Cross-Examination

Jurors place great importance on eyewitness testimony, particularly if that witness has no obvious axe to grind. For the jury, this is appetizing evidence—if they believe that the eyewitness has correctly identified the assailant or robber, they simply return a guilty verdict; they need not fit this type of testimony into an evidentiary puzzle. It is seemingly simple evidence that can hang your client. In reality, eyewitness testimony is not so simple. Indeed, it may be the most complicated and least trustworthy of all the evidence the jury hears or sees.

I.    Attack Conditions Under Which Victim Made Initial Observation

§6:01     Governing Principles

Eyewitness testimony is the product of the conditions under which the eyewitness made the observation and his ability to recall what he observed. External conditions include lighting, rain, fog, and obstacles. Internal conditions also affect a person’s ability to perceive, understand, or even see an event. An event may trigger memories of a past event (similar or not), fears real and imagined, ambitions, obligations, and self-doubts. A thousand inner voices, images, and thoughts may flood the eyewitness’s mind, competing with each other and overriding his ability to make sense of what his eyes and ears tell him. After the event, visually unsettling images—ambulances, blood, angry police officers, crying victims—bombard the eyewitness, interfering with his ability to process the event and thereby obscuring and blurring the images. As the witness sees a crime being committed, especially a violent crime, his mind may race: “Should I interfere?” “Should I try to stop him?” “Is that a gun?” “He’s awfully big.” “Will he kill me?” “Am I a coward?” “I’m not a police officer.” A witness’s inner struggle and inner demons may prevent him from really seeing what is happening right before his eyes.

What a witness sees will not be enhanced by his memory; instead, it will only be further compromised. The mind does not store complete digital images that it can reproduce on command. A memory may grow hazy over time or it may be altered—by the pressures or desire to recall it and, perhaps, to make that recollection fit “the facts.” Many eyewitnesses’ memories magically improve over time. An unrealistic conviction in the accuracy of their memory gradually replaces the uncertainty they felt following the incident. During cross-examination, the eyewitness is unlikely to admit that he could be incorrect.

§6:02     Strategy

For many defense attorneys, there is a pathological, often counterproductive, need to make a robbery or attack seem less terrible or frightening than the impression created by the prosecutor or the victim. While there is the possibility that, if the impression is left unchallenged, the jury will be so angry at the gravity of the crime they will rush to crucify your client, by downplaying the circumstances in a case involving an eyewitness, you make the ordeal seem less threatening and, thereby, undermine your contention that the witness’s faculties were overridden with emotion. Moreover, downplaying the terror of the incident may lead the jury to believe that you believe your client is guilty and are hoping the jury won’t be too hard on him because the crime wasn’t as bad as claimed. By confronting the facts, you demonstrate that you have no fear of them.

I begin the cross-examination of the bystander by establishing the basic facts to illustrate just how terrible this ordeal was for him. Since he will likely anticipate that I am attempting just the opposite, he may exaggerate these facts—to my benefit. Interestingly, in this case, the goal isn’t just to undermine the jury’s confidence in the bystander’s claims, but to enhance the credibility of the victim.

§6:03     Angles of Attack

  • Robbery was a terrible ordeal for witness. [§6:04.1]
  • Witness was immobilized with fear. [§6:04.2]
  • Witness did not look the robber in the eye. [§6:04.3]
  • Witness had little time to observe. [§6:04.4]
  • Chaos ensued after robbery. [§6:04.5]

§6:04     Cross-Examination: Sample Questions & Tips

§6:04.1  Robbery was a terrible ordeal for witness.

Q:   In broad daylight, an individual pulled out a sawed-off shotgun?

A:  Yes.

Q:  And pointed it at Mrs. Webster?

A:  Yes.

Q:  You saw the gun?

A:  Yes.

Q:  You stared at the gun?

A:  Yes.

Q:  Mrs. Webster was a frail, elderly woman?

A:  Yes.

Q:  She let out a yelp?

A:  That’s right.

Q:  The robber reached out and grabbed her pocketbook?

A:  Yes.

Q:  But Mrs. Webster wouldn’t let go?

A:  No.

Q:  The robber screamed at her to let go?

A:  Yes.

Q:  He said, “If you don’t let go, I’m gonna blow your f***ing head off?”

A:  Yes.

Q:  You believed he might do it?

A:  That’s right.

Q:  You wanted Mrs. Webster to let go of the bag?

A:  Right, I didn’t want to see her shot.

Q:  You thought she was being pretty stupid?

A:  I did.

Q:  The robber knocked her to the sidewalk?

A:  Yes.

Q:  She fell hard?

A:  Yes.

§6:04.2  Witness was immobilized with fear.

PRACTICE POINT:

Expose witness’s character.

To successfully cross-examine a witness, particularly an eyewitness, you must crawl into his hide and assess his character, motives and fears to fully understand his emotional reaction to what he claims he saw. This cross-examination exposes not just the bystander’s cowardice, but that he was so overcome by fear that he did not even manage to dial 911. In contrast, the victim fought back against the robber. In closing, I’ll argue that the jury should credit the description provided by the courageous victim, rather than the pathetic bystander.

Q:  You wondered if you should come to her aid?

A:  Well, I… didn’t know what to do.

Q:  You didn’t want to be shot?

A:  No.

Q:  You didn’t want to do anything that would upset the robber?

A:  No.

Q:  He was a maniac?

A:  Yes.

Q:  He might just shoot you?

A:  Right.

Q:  You did not rush to her aid?

A:  No.

Q:  You made no move?

A:  No.

Q:  You did not tell the robber to leave her alone?

A:  No.

Q:  You did not yell out “Help!”?

A:  No, I didn’t.

Q:  At that moment, you did not call 911?

A:  No.

Q:  You did not run?

A:  No.

Q:  Your mind was racing?

A:  Yes, it was.

Q:  You were immobilized with fear?

A:  Well, I… I was scared.

Q:  You were terrified?

A:  Yes.

Q:  You neither intervened nor fled?

A:  No.

Q:  You were too scared to do either?

A:  Yes.

Q:  You were immobilized with fear?

A:  Yes.

§6:04.3  Witness did not look the robber in the eye.

PRACTICE POINT:

Eye contact is crucial to identification.

When we look at someone, we are drawn to his eyes. We may note other facial features (such as a large nose or full lips), but unless the person’s nostrils are flaring or he is smiling, we are primarily focused on his eyes. We can often identify someone by his eyes only. If shown a photo of George W. Bush’s squinty eyes alone, I could identify the president. If shown Bush’s nose or mouth alone, I would be hard-pressed to identify him. There is something unique and impressive about someone’s eyes. If too intimidated to meet the robber’s eyes, it’s unlikely the witness did more than glance at his face. At worst, making such a point on cross gives defense counsel another point to raise in his closing.

Q:  You did not look the robber in the eyes?

A:  No, but I saw his face.

Q:  You did not look the robber in the eyes?

A:  No.

Q:  You were unable to tell responding police officers his eye color?

A:  No, I wasn’t. It happened so fast.

Q:  You were too intimidated to look the robber in the eyes?

A:  I was scared, yes.

Q:  Too scared to look him in the face?

A:  Well, yes, I guess.

Q:  You did nothing more than glance at his face?

A:  I saw him. It’s your client.

Q:  You did nothing more than glance at his face?

A:  I looked long enough.

Q:  Even though you were too scared and intimidated to look him in the eyes?

A:  I know what I saw.

§6:04.4  Witness had little time to observe.

Q:  The robber grabbed the pocketbook?

A:  Yes.

Q:  And fled down the street on foot?

A:  Yes.

Q:  And entered a car?

A:  Yes.

Q:  Then drove off?

A:  Yes.

Q:  The entire incident lasted only a few seconds?

A:  About 10 seconds.

Q:  During that 10 seconds, you looked at the shotgun?

A:  Yes.

Q:  It was a real shotgun?

A:  Yes.

Q:  Not just a couple of pipes?

A:  No, a real shotgun.

Q:  You watched the robber and Mrs. Webster struggle over the purse?

A:  Yes.

Q:  That lasted a few seconds?

A:  About that.

Q:  You watched her fall?

A:  Yes.

Q:  You wished you could catch her?

A:  Yes.

Q:  And you watched the robber run away?

A:  Yes.

Q:  All in 10 seconds?

A:  Yes.

Q:  Of those 10 seconds, you spent less than two seconds looking at the robber’s face?

A:  I saw his face.

Q:  Of that 10 seconds, you spent less than two seconds looking at the robber’s face?

A:  Two or three seconds. Maybe more.

Q:  And during that two to three seconds, your mind was racing?

A:  Well, kind of.

Q:  Your eyes darted between the robber, the shotgun, and Mrs. Webster?

A:  Yes.

Q:  You didn’t focus on the robber’s face?

A:  No.

Q:  So when you say you spent two to three seconds looking at the robber’s face, you’re really saying you looked at his face for a total of two to three seconds?

A:  Well, I mean, I looked at his face.

Q:  You looked at his face more than once?

A:  I believe I did.

Q:  You’re adding together the time, on those two or three occasions, that you spent looking at his face?

A:  Yes.

Q:  So, if you looked at his face on two to three occasions and spent a total of two to three seconds looking at his face, you looked at his face on each occasion for no more than a second?

A:  I guess. It’s difficult to say.

Q:  At two to three seconds you could do no more than glance at the robber?

A:  I… did more than glance.

Q:  And during these two to three seconds, Mrs. Webster was trying to wrestle the shotgun from the robber?

A:  Yes.

Q:  She was jerking the gun back and forth?

A:  Yes.

Q:  And jerking the robber along with her?

A:  Somewhat.

Q:  And he was trying to jerk the shotgun away from Mrs. Webster?

A:  Yes.

Q:  They were twisting and turning?

A:  Yes.

Q:  Twisting and turning violently?

A:  Yes.

Q:  This was a life-and-death struggle?

A:  Yes, very much so.

TECHNIQUE TIP:

Help the jury visualize the struggle.

As you ask a question like this, demonstrate how the two would have been wrestling over the gun.

Q:  It was during this life-and-death struggle that you looked at the robber’s face?

A:  Mostly.

Q:  It was this death struggle that drew your attention to Mrs. Webster and this maniac?

A:  Yes.

TECHNIQUE TIP:

Put a third party in the courtroom.

I refer to the robber as a maniac because it underscores the violence of the encounter, creates a third person, and provides a marked contrast to my client, who is sitting beside me, well-attired and calm.

Q:  You didn’t see the robber approach Mrs. Webster?

A:  No.

Q:  You didn’t see him point the shotgun at her?

A:  No.

Q:  When the robber wrestled the gun from Mrs. Webster, he turned and fled?

A:  Yes.

Q:  Running away with his back to you?

A:  Mostly.

Q:  So, for the entire time that you observed the robber, his face was jerking back and forth?

A:  I guess.

Q:  And all this time, you’re trying to decide what to do?

A:  Well, yes.

§6:04.5  Chaos ensued after robbery.

PRACTICE POINT:

Chaos and stress negatively impact recall.

If allowed a moment to reflect on something we’ve read or seen, we are more likely to accurately recall that thing. But if our observation is immediately followed by chaos and disturbing scenes that unsettle us, we have a far more difficult time conjuring up the images we saw. Eyewitnesses, especially untrained eyewitnesses, can be so rattled by the distressing aftermath of a crime that they cannot reliably recall what they saw. Use cross-examination to walk the witness through each and every distressing scene that he endured following the event and, later, use those scenes to argue that the identification cannot be credited.

Q:  As soon as the robber was gone, you ran over to Mrs. Webster?

A:  Yes.

Q:  She was bleeding?

A:  Yes.

Q:  She was breathing rapidly?

A:  Yes.

Q:  She was emotionally overwrought?

A:  She seemed to be, yes.

Q:  Then you called 911?

A:  Yes.

Q:  You were speaking rapidly?

A:  Yes.

Q:  Trying to hold it together?

A:  Yes.

Q:  You yelled for a doctor?

A:  Yes.

Q:  People began congregating around you?

A:  Yes.

Q:  Crowding you?

A:  Yes.

Q:  You said, “Give us some room”?

A:  Yes.

Q:  Mrs. Webster was nearly hysterical?

A:  Yes.

Q:  You were afraid for her?

A:  Yes.

Q:  You stayed with her until the ambulance arrived?

A:  Yes.

Q:  You were stressed?

A:  Yes, I was.

Q:  Your heart was beating rapidly?

A:  Yes.

Q:  The EMTs examined you?

A:  Yes.

Q:  During the minutes that followed the robbery, you didn’t have time to reflect on what the robber looked like?

A:  Not immediately. But I did later.

TECHNIQUE TIP:

Empathetic cross more effective than confrontation.

When a witness takes the stand many months after a terrifying event, he could be far more composed than he was at the time the event occurred. Beneath the cool surface, however, he may be a cauldron of unresolved emotion. Rather than stridently confronting him, empathetically lead him through the horrifying scene; if he’s been attempting to repress the images you’re making him relive, your sympathetic demeanor could undo his self-control, cracking his façade and leaving him awash in emotions that leave the jurors questioning the accuracy of his observations. If your empathy unleashes no hidden trauma, you have at least left the jurors with the impression that you are a decent human being.


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.

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