Killer Cross Examination

Did you know that the police and prosecution must turn over evidence favorable to the defense to the accused?  Did you know that the U.S. Supreme Court has stated that it is a denial of due process for a prosecutor not to turn over favorable evidence? Likewise, did you know that even if a prosecutor is unaware of the evidence, if any member of the police department or someone within the sphere of influence and control of the prosecution knows about it, it must be disclosed.  Yet, why do cases still get overturned for the failure of evidence to be disposed?

Perhaps the root of the problem is that some police officers do not took for evidence of innocence or as we call it, “exculpatory evidence”.  Instead, the police simply seek out evidence that confirms the allegations or “helps prove the charges” rather than seek or attempt to obtain evidence that undercuts the allegations.  Most police officers would claim that they are neutral, i.e., that they just gather evidence without bias but when do they overlook evidence that tends to exculpate the accused so regularly.

Within the last month, I’ve cross-examined 2 police officers who both admitted that they didn’t know what exculpatory evidence was.  Isn’t that shameful?  How can police officers claim to look for something and claim to preserve it if they don’t know what it is?  How can prosecutor’s claim to have turned everything over and to be even handed ministers of justice, if the police officers that are working with them don’t know what exculpatory evidence is?

Things should change.  If they haven’t looked for and processed all evidence, and most importantly, evidence that favors the accused, than a person should not stand trial for that offense.  Hear me discuss this issue in Episode 10.

There’s a court reporter either sitting somewhere in the courtroom or someone ready to turn the recording into a verbatim record. So, stop looking down at your notepad trying to take down word for word what the witness says in direct examination. Instead, just as you’d tell your child or teen to pick their head up from their phone, pick your head up and look at what’s happening in front of you. Much of communication is non-verbal. Movements, positioning, facial expressions, arm and body placement and style of answering, eg, direct or narrative and rambling, can only be learned by watching a witness. So, watch. This not only applies to witnesses, but in life ... watch how others communicate rather than trying to remember what he/said, watch how they’re saying it.

I once was prepared to examine a witness in a trial whose demeanor told me everything. He was hostile, angry and vengeful about my client not having promoted him years ago. I could only tell how hostile he was by watching his demeanor. His tone and posture revealed that he was trying to spike the balk and my client’s future with every answer. That was only learned by watching him. Had I shoved my head in my notepad, I’d have missed it. It proved to be an easy cross examination because the jury, once I shared with him/them, his motivation and bias, the manner of speech and communicating made sense. They discredited what he had to say.

Episode 9 is devoted to this tip on cross examination. You’re not a note taker. Listen. Watch. You’ll learn a lot more than you will from having “good notes.”

The system has to work in all cases including cases in which people are accused of drunk driving or DUI. But is it? Over the years, these investigations have become one-sided, slanted and skewed. Exculpatory and favorable evidence is ignored. Any misstep by the driver is interpreted, without question or query, as evidence of intoxication or impairment. Even the slightest physical “sign”, e.g., bloodshot eyes, is assumed without follow-up or investigation, to be the result of alcohol or drug consumption and intoxication. When we query the police about whether they made any inquiry at all or did they just assume, they are cornered time and time again into admitting they made assumptions and relied on supposition. Yet, it continues.

In episode 8, I explore how intoxicated or impaired (DUI cases) are built by the police from the initial observation of driving to the arrest. I explore how the process is skewed and how the legal system has over time become seemingly tolerant of slanted investigations into allegations drunk driving. You’ll hear how the police have been permitted to ignore troves of favorable, exculpatory evidence while cherry picking a couple of “bad” facts and using those against the driver. Any mistake that could be due to nerves or fear is noted as a sign of intoxication and impairment. And if the driver acquits himself perfectly on all of the questions and tests, the police just assume that “he’s a good drunk” and “he holds his liquor well.” What’s worse … nearly all of the evidence gathered in the investigation comes from the driver’s own mouth and his own deeds. After arrest, if the police want to interrogate you, Miranda Warnings (the subject of Episode 7) are required. But during a traffic stop and investigation into drunk driving, they aren’t required. And because people choose to answer questions and participate during these skewed investigations, they end up providing most of the evidence against themselves. They unwittingly assist and aid the police in making the case against them and they do so thinking they have a chance to convince the police that they weren’t intoxicated, impaired or high. They end up being their own worst enemy.

Anyone who has watched any television show involving cops or the legal system, knows the Miranda Warnings.  We know the words but what do they really mean.  Not using legalese or fancy lingo, what do each of the rights really mean to the average person.  How should you understand them? And why do so many people despite the warnings, waive them and make statements to the police that harm their case?

While some trials involve forensic or scientific evidence, all trials involve an element of witness credibility. Historically and as a matter of common sense, we know that some witnesses will lie, get together and get their story straight or at least try to. We separate our children and students in class when we’re trying to figure out who broke the vase. Where the stories diverge or contradict, we can start to get at the truth. There is an old biblical story about 2 elders who accused a woman, Susanna, but were caught lying during a trial. How? They were separated. Sequestered. And when their stories differed, it was evident that she was innocent and they were lying.

In the law, there are rules to create the same environment. Sequester witnesses so that they cannot hear what the other has to say. This allows us to show contradictions, inconsistencies and even outright lies. This is what cross is about but there is a rule, a procedural rule, that is used by the prosecution and state to get around this rule in an important way: they are permitted to have a police officer sit in the courtroom the entire time and listen to what every witness says. Even when that officer testifies, they can designate another officer to sit there and do the same thing. While every other witness is sequestered, the detective is not. It’s unfair but there is a way to deal with it. Listen and find out ...

Our country is witnessing an awakening of sorts. Our eyes are more open to the power that we have given to those whose job it is to protect and serve, the police. Before  squad car video recordings, body cams and citizen made cellphone recordings, what happened during a police encounter or investigation came down to the citizen’s word vs the officer’s.  Anyone familiar with trying to fight a traffic ticket knows the hopeless feeling that “they’ll just believe the cop.” Did you know that in the criminal justice system, the law has always been that “police testimony is to be given no more weight than a regular citizens”?  But how has it been applied? Is it applied or often ignored and at what costs?

This is Part 2 of Death by a Thousands Cuts and follows closely with Episode 3. Its been said that in the prior episode, the witness’ testimony was “dead” after only 2 cuts rather than 1,000. In Part 2, the witness was cut repeatedly … over and over and over again.

Death By A Thousand Cuts is a form of torture. Literally. The subject is repeatedly and slowly cut, with each cut inflicting a small amount of pain and bloodshed. One individually is not enough to kill the subject. But together, by the end, after many cuts, the subject is done. Psychologically speaking, Death By A Thousand Cuts occurs when something negative is happening to another but it is happening slowly, incrementally and almost without notice until it is too late.

Approaching a witness for cross examination, many lawyers want a clean, knockout punch – one shot that ends the witness’ credibility. Those Perry Mason / Matlock moments rarely, rarely happen. While my approach to cross examination can lead to knockout punches, and sometimes does, what more often happens is that the witness’ credibility is destroyed, i.e., killed, slowly. Death By A Thousand Cuts.

In this episode, I discuss a cross examination of an agent who was part of a large, multi-jurisdictional task force that was investigating a group of people in the Chicago, Illinois and metro-Detroit area. My client, a man in his 60’s was among the defendants. Four (4 ) others were charged as well. They were all charged with Conspiracy To Deliver 1000 grams or more of a controlled substance and Possession of a 1000 grams or more of a controlled substance. Specifically, the government was accusing them of taking part in an intricate plot to transport cocaine in kilogram quantities from Chicago through Michigan and beyond.

My client was locked up during the entire case. Our defense? He was in the wrong place at the wrong time. The police had been overly aggressive in their pursuit of those involved and in the process charged an innocent man.

Central to the state’s case was what the police described and alleged as an exchange in which my client transferred drugs (in a piece of luggage) from his vehicle to another. Later, when the other vehicle was stopped, the police located the drugs. One officer claimed to have observed the transfer, while another claimed to have followed my client from his apartment to the location of the alleged transfer – a self-car wash. Both witness’ testimony were potentially damaging to my client’s defense. This episode is about the latter officer, the one conducting surveillance and how I undermined his credibility entirely.

I listened very carefully to his testimony both in a previous hearing and during the trial. He claimed to see my client pull directly into the car wash. Despite what he as claiming, it was my opinion that he hadn’t seen anything of the sort. I wanted to cast doubt on that claim. Sometimes witnesses claim to see things when in reality they are just putting pieces together of events they did see and then filling in the gaps with what seems logical. They do this for many reasons – some to help their case, some because they are biased, some because they think they won’t get caught and some because they should have been in a position to see something important but failed to do so. I believed all of the above applied here. Take a listen and see how I revealed, through a killer cross examination, our truth as to what really happened.

Question after question was like cut after cut. In the end, the witness’ credibility was destroyed, i.e., killed. Death by a Thousand Cuts.

As I recall, I was 25-26, probably somewhere in between and making my way in the tense environment of the Oakland County Prosecutor’s Office where I was a young assistant prosecutor. The office was not without controversy. Our supervisors directed us to plea bargain few cases meaning that most proceeded to straight pleas or were set for trial. For young lawyers looking for trial experience, we were sure to get it working in Oakland County.

Early on, young prosecutors are assigned a mentor and to a courthouse. In the beginning, everything is under the watchful eye of the mentor. My first trial was no exception. From the start, I pushed hard. I learned the Michigan Rules of Evidence and studied the new cases that came out of the appellate courts interpreting them. I knew then that if I knew the rules, I would be ahead of the game and that’s where I wanted to be – at the head of the field and at the head of the game, so to speak. And so, when my first trial opportunity came along under the watchful eye of my mentor, I was ready. And what a trial it was –

First, I was sick as a dog. There was no coronavirus then but I had all the symptoms – fever, sore throat, cough, sweats, chills and runny/stuff nose. I was a mess. Yet, nothing was keeping me from trying that case. N.O.T.H.I.N.G. I came to court with throat lozenges, Tylenol, tissues, sore throat spray, etc. It was like a pharmacy in the conference room. Why did I push on? I wanted to try this case and try it I did.

The defendant was a lawyer charged with Indecent Exposure. Suffice it to say, he had a lot on the line. He knew the law and had a good lawyer to boot. The facts – they were odd indeed. He was driving a car on a public road next to a loaded school bus full of children. The driver noticed the students peering out the window, pointing at the car and making comments. It was alleged that he had his privates out and was masturbating. The driver tried to slow down and according to her, the car slowed down. When she tried to speed up, she claimed the car sped up. It was called in, he was investigated and prosecuted. None of the parents wanted the kids called as witnesses which made it more difficult.

His defense? He claimed he had a rash and was applying an ointment/prescription medication/salve to a rash and it was all a misunderstanding.

The case of the Exposed Lawyer – my first and where my tenacity at cross examination and killer cross examination finds its roots.

Killer Cross Examination is brought to you by Neil Rockind, a veteran and award-winning criminal defense lawyer. Rockind shares his insight into what he terms “killer cross examination” through his weekly podcast and blog entries. As a former assistant prosecuting attorney and radio talk show host, Rockind believes that killer cross examination is the key to winning any case:  using cross examination in way that highlights the issues and defenses that you are advocating while undermining the foundation for the government’s case.