Dean Coronel Trial Practice Techniques

5.9 Special Problems on Cross  The goal of the opposing witnesses is to defeat the purposes of your cross-examination. cross-examination. So it’s important to be familiar with their nature and how to deal with them.

Rehearsed Witnesses -

They have have a well-re well-rehear hearsed sed testimo testimony ny that that is caref carefully ully pre prepar pared ed by the the opposing opposing counsel, prosecutor or the police.

 Your  Your G!" # $rove that his story story is pre-fabricated pre-fabricated and unworthy of court%s belief belief.  You  You have to look for CLUS CLUS like# like# 

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&emori'ed details (ould )T ordinarily be remembered  (ould normally be recalled  *erbatim repetition +especially applicable on a young witness  se of unnatural vocabulary   Too  Too similar testimonies among among witnesses

!ction Plan# Plan # n/uire whom the witness tal0ed to before testifying. testifying. 1ow many conversations too0 place2 (ho were present during the conversations2

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"plainin# and !r#uin# Witnesses -

They always always want want to to expound expound on every every point point and and argue argue with with you you on everythin everything. g.

 Your  Your G!" # 3ontrol the witness.  You  You often see them# them#  

!rguing with you on every /uestion !nswer your /uestions with /uestions

!ction Plan# Plan # i. ii. ii. iii. iii.

!s0 !s0 part partic icul ular arly ly and and conc concis isel ely y 3ut 3ut him him o4 with with your your next next /ues /uesti tion on !s0 for for court’ court’s s assist assistanc ance e to stri0 stri0e e out the the unimpo unimporta rtant nt part part of his his testim testimony ony55 admonish him to give a responsive answer

vasive Witnesses -

They They had no di6culty di6culty answe answerin ring g during during the direct direct-e -exa xamin minati ation on but they they become become evasive on cross-examination

 Your  Your G!" # 3reate a horrible horrible impression impression on him through through his evasive evasive answers. answers.

$o% evasive %itnesses behave# 

7epeat your /uestions !nswer /uestions slowly !lways respond with, 8 don’t 0now,’ 8 can’t remember,’ etc.

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!ction Plan& i. ii. iii. iv. v. vi. vii.

9on’t s/uee'e out better answers from them :xtract as many  don’t 0now,’ 8 can’t remember,’ answers 9emand clear and direct answers 7apidly ;re /uestion !s0 low by emphasi'ing on his evasiveness 9ismiss him summarily

Positive Witnesses -

They always ma0e positive testimonies through a6rmative declaration of facts.

$o% evasive %itnesses behave# 

7efuse to ma0e any statement other than in positive terms

!ction Plan& i.

:ncourage them to ma0e positive statements on matters where there can be no positive

ii.

nduce contradictory statements.

Stubborn Witnesses -

They are always hostile towards you and ;rm on their stand.

'%o '(pes#  

1e holds bac0 facts 1e ta0es a position and refuses to retreat

!ction Plan& i.

!s0 a few /uestions until you get what you need

ii.

&a0e his position appear ridiculous

Contrar( or Unrul( Witnesses -

They harbor deep hostility toward your client.

 Your G!" # mpeach his credibility.

!ction Plan& i. ii.

Turn the the hostility toward your client against you 9o not /uarrel with him

iii.

!s0 the court to warn him to behave

)denti*cation Witnesses -

1e always positively identi;es the accused.

 Your G!" # 9emonstrate that courtroom identi;cation as worthless.

What to e"pect# 

 They impress sincerity, honesty and con;dence to the court

!ction Plan# i.

$oint out that identi;cation was prepared because of the obvious courtroom position of the accused

ii.

$oint out con?icts and discrepancies on the testimonies of several witnesses

iii.

:stablish ?aws in the identi;cation of the witness ◦

$oor memory

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$hotographed image shown to the witness was impressed on his mind

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!bsence of 8police lineup’ or ?aws thereof 

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n?uence of news from T*, radio and newspapers

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$olice’s n?uence

Witness to into"ication

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1e attests to the intoxication of the accused at the time the crime was committed.

 Your G!" # 9iscredit the witness licit the follo%in#&  =amiliarity with the accused  @nowledge of intoxication  $resence at the time of drin0ing !ction Plan& i. $rove he does not 0now the accused too well ii. $rove he does not 0now enough about intoxication iii. $rove he himself might be intoxicated

Witness to defendant+s confession  Your G!" # $rove that waiver of rights was not done with full grasp of the facts and e4ects

'he !pproach&  n/uiry on all the circumstances surrounding the confession !ction Plan& i. $rove that he was not advised of his rights ii. $rove that accused was forced to admitting

,er( old or (oun# %itnesses -

They have the court’s sympathy.

 Your G!" # $rove that he was coached 'he '%o '(pes&  7ehearsed child 1e was coached by the parents or counsel repeatedly   7espected elderly 1e ma0es silly remar0s at times but never ma0e fun of him  !ction Plan& i. bAect to child’s testimony f the counsel fails to lay the predicate ◦

ii.

Show the child’s approval of 8white lies’ "ead him to a line of /uestioning that reveals his approval of saying untruthful statements in certain circumstances ◦

iii.

Show the di4erence between rehearsed and the unrehearsed parts >egin by as0ing unimportant matters until he gains con;dence  Then probe on unexpected matters that reveal the memori'ed parts of  the testimony ◦ ◦

iv.

"ead the child to exaggeration se his imagination to elicit a ridiculous testimony ◦

v.

Treat older persons tenderly >e ever courteous and polite up to his dismissal ◦

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-emale Witness -

She appeals to the emotion.

 Your G!" # Get direct answers $o% she behaves& 

She becomes highly emotional, angry or upset

!ction Plan& i.

9on’t be condescending or solicitous )ever alter your manner despite her emotions ◦

ii.

7emain unmoved She becomes surprised or hopeless when she sees your stoic reAection, thus, susceptible to penetration ◦

iii.

se her emotions to elicit answers 3ounter her evasiveness with continuous /uestioning until you get direct answers ◦

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WitnessComplainants to se" crimes -

She’s more emotional than an ordinary female witness.

 Your G!" # $rove that accused is the 8wronged’ party '%o '(pes&  

ne who tries to bra'en her way out of the compromising situation ne who see0s revenge She may have been reAected by the accused She may be vengeful of all men, not Aust the accused ◦ ◦

!ction Plan& i.

$rove lac0 of force 7elationship with the accused !bsence of physical indication of force ◦ ◦

ii.

$rove presence of opportunity to escape Stress the opportunity of resistance or outcry ◦

iii.

$rove that complaint is an afterthought nterval between the attac0 and the reporting of the crime ◦

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Police /0cers and /0cials -

They determine the motive behind your /uestions before they answer

 Your G!" # mpress the court by showing inconsistencies in the investigation. 'he nature of a Police /0cer Witness& 

 They are careless of the form and manner of statements made to them

!ction Plan& i. ii. iii.

=amiliari'e yourself with criminal investigations Taint the credibility of the investigation se the