A plan for cross-examination

By Brian Foley
Assistant District Attorney in Harris County

For a long time I was pretty uncomfortable with cross examination.  Cross was an afterthought.  Defense is never going to call a witness or put the defendant on the stand.  Why do I need to worry about that anyway? I have no idea what they are going to say so how can I prepare?  This isn’t civil law with depositions and discovery. 

            Then I heard from the great prosecutors who came before me.  The secret to a good cross-examination is preparation. You must watch the dashcam video 10 times, talk to the defendant’s neighbors, and subpoena his seventh-grade teacher to grand jury to lock down her testimony.

            That sounds great in theory, but we don’t always have time for all that. So how do we prepare to cross-examine a witness or defendant who isn’t making headlines with a preferential trial setting? How do we prepare for a surprise witness in the eighth case on the docket?

            I was inspired to write this article by the great prosecutors with whom I have worked and stumbled upon these ideas.  I hope you can share in their great success using the below strategies.  I’d like to offer three priorities for cross-examination: the right organization, the right goal, and the right attitude. Then I’ll share specific cross-examination questions for scenarios that occur frequently. 

The right organization

I’ve found that asking questions in a specific order has helped show when a defense witness is hiding the truth. The best organization is to start with:
            1)         the elements, and move on to
            2)         the evidence, and finish up by
            3)         confronting him about his lies.

This plan helps secure the jury’s “permission” to go after the recalcitrant witness.[1] It’s also a great plan when you have to cross someone without a lot of time to prepare.

The elements

First, try to get the defendant or witness to say yes as many times as you can.  See how many elements he will agree to. By doing so first, you keep the questions and answers focused. If he agrees with you as to all the elements of the offense, then you can stop asking questions.

            But more likely, he will disagree about something, and that’s where you can focus your attention. It also allows you to appear reasonable while the witness has the confrontational attitude. With each question, you build up the squirm factor—that feeling in the defendant that the doors around him (directions his story could take) are closing one by one. He can no longer pretend that the State can’t prove what day the crime occurred or that he wasn’t at the scene of the crime. These facts might not mean much to the jury, and you might not have thought they were important because there’s really no credible argument to the contrary. But a defendant under cross-examination thinks differently. Forcing him to close these doors from the witness stand seems to make him more and more uncomfortable, and he squirms in his chair and wants to wiggle out of the next answer. He may even become hostile.

            Such a cross could look something like this:

“You’re John Abuserston?”
            “Yes.”
“You were there that night?”
            “What night?”
“The night we’ve been talking about this whole trial, April 23, 2018—the night you were arrested for assaulting your girlfriend?”[2]
            “Yes.”
“It’s a house?”
            “Yes.”
“In Nueces County?”
            “Yes.”
“Everything you did that night you did intentionally?”
            “No.”
“So you were on drugs and that made you do it?”
            “No.”
“Then everything you did that night was a conscious choice?”
            “I guess so.”
“You did it because you wanted to do it?”
            “Did what?”
“Everything you did that night, every choice you made, you made for yourself?”
            (The defendant is silent.)
“You knew what you were doing?”
            “Yes.”
“You did everything knowingly?”
            “Yes.”

            In this line of questions, you haven’t really said anything groundbreaking at all, but you have forced the defendant to disagree with you when he doesn’t really need to. If you can get him to say he knew what he was doing and he did it intentionally, I think the jury will be halfway there to “… and you didn’t do it in self-defense.”

            Another example of starting with the elements is questioning about bodily injury. If opposing counsel is presenting a self-defense argument, then the defendant shouldn’t be reluctant to say that he caused bodily injury to another person. If you ask, “You caused bodily injury to Suzie Sweetheart?” he will either say, “Yes,” in which case you will move on to the manner and means, or he will say, “No,” in which case you can move into the “evidence” section (below) and confront him with the evidence that shows bodily injury. Once you compel a witness’s disagreement on a particular point, you can start hitting him with all the evidence.

The evidence

Say a witness just disagreed with the prosecutor on the element of bodily injury, or he minimized how much injury he caused. Now it’s time to show him photos of the injuries and ask about them. If I have a good photo showing blood on clothing, blood on the floor, or an obvious red mark on a person’s skin, I will show it to the defendant and ask a non-leading, “What’s that?”[3]

            This strategy works only with a photo where the injury is really obvious. If it isn’t obvious in the photo, don’t show it to the defendant. Otherwise you may hear about all the “crazy skin conditions” he knows the victim has to explain away the injury.

            If the defendant was at the scene and gave a statement to police that “nothing happened,” have him admit that he didn’t claim self-defense or that he didn’t say he arrived after the assault. But don’t just ask him that one question. Rather, think about all the things an innocent person who was acting in self-defense might do in such a situation, and ask him those questions:

“You told the jury you were acting in self-defense.”
            “Yes.”
“You were still at the apartment when the officers arrived?”
            “Yes.”
“You saw the police?”
            “Yes.”
“You saw their badges?”
            “Yes.”
“You knew why they were there?”
            “Yes.”
“You didn’t tell Officer Davis that you were acting in self-defense?”
            “Yes” or “No”—it doesn’t matter.
“You didn’t tell Officer Flores it was self-defense?” [and] “You didn’t shout at the victim across the room that she knew it was self-defense?” [and] “You didn’t call 911 and ask for help?”
“I’m showing you State’s Exhibit No. 1, the dashcam recording. Not one time on this recording do you say that you were acting in self-defense.”

            Once a witness starts down the path of dishonesty, every additional photo or inconsistent statement starts to sting a little more. This is the most important time for the prosecutor to be listening to the defendant’s answers. I know that when you are standing right by the defendant, it can be a little difficult to take note of his answer while you are planning your next question, but it’s important to try. When the prosecutor is referring to physical or photographic evidence, the defendant tends to do the most explaining and minimizing. Great cross-examiners use these explanations and minimizations against the defendant so that he becomes his own worst enemy.

Lies

You may discover a defendant or witness lied when you listen to the officer’s body camera, or you might find a lie when you read a witness statement. But I find that the best place to find them is when the witness is testifying on direct. The witness will be more adept at making the lies sound acceptable on direct because the defense attorney might be helping him frame his answers or jog his memory, often through leading questions. So a good place to start a cross-examination of a defense witness is through objecting to defense counsel’s leading questions. Compel the witness to remember his story himself.

            Additionally, take good notes during direct examination of a defense witness. I use a yellow legal pad, draw a line down the center, take notes for the direct examination on the left side, and write notes about what cross examination point or evidence might contradict the direct examination testimony on the right side. I save these for the end of cross; when I start cross, I go through the same elements and evidence first and then go into where the witness might have lied. Saving the lies allows you to end with a bang. Try to show the jury not just that the defendant lied, but also question him about why an innocent person would lie like he did.

            Say you discover that the defendant lied to officers by saying he called 911, and the call log for the address shows no other 911 call besides the victim’s. I would hold onto this until the end of cross-examination. See what elements the defendant wants to fight about, and confront him with the physical evidence first. The jury will have picked up on his discomfort by then.

“So you don’t agree that this photo shows a red mark on the victim’s face?”
            “No, it doesn’t. She was the one attacking me.”
“That’s right. In fact, you told the officer that you called 911 on her?”
            “I don’t remember.”
“You don’t remember if you called 911?”
            “No.”
“Don’t you think it’s a pretty important decision to call 911?”
            “Yes.”
“And now you don’t even remember if you did it or not?”
            “No.”
“You were in here when we played the footage from the officer’s body camera, right?”
            “Yes.”
“You heard yourself tell the officer that you called 911?”
            “I don’t remember.”
“But you didn’t call 911.”
            “I don’t remember.”
“You didn’t know that the sheriff’s office keeps records of all 911 calls dispatched to a certain address, did you?”
            “I don’t know.”
“I’m showing you what’s been previously admitted with a business records affidavit as State’s Exhibit No. 7. Your phone number isn’t anywhere on this list, is it?”
            “I don’t see it there.”
“But you wanted the police to think you had called 911?”
            “No.”
“Because that’s what real victims do?”
            “No.”
“And the only person who called 911 in this case was Suzie Sweetheart?”

            Prior convictions are kind of like lies. I keep the defendant’s prior convictions for impeachment under Rule 609 in my back pocket. If you start off cross examination with “You’re a felon, aren’t you!” it can come off as name-calling, and it’s not particularly persuasive if presented this way. Instead, while each juror is making up his own mind about the defendant’s credibility, let the defendant give an answer that is a little outlandish first—and then pull out the felon card.

“So you’re saying that a woman who weighs 115 pounds put you in fear of your life?”
            “Yes.”
“You weigh 280 pounds?”
            “Yes.”
“You just don’t want to be convicted of this, do you?”
            “No, I’m not guilty.”
“But you’ve been convicted before, right?”
            “Uh yes, I have a past.”
“You’re a felon.”

            Now when you go through his criminal history, there is a reason. It isn’t name calling at this point—it’s telling the whole truth to the jury. Remember also that 609 says that the criminal conviction for a felony or moral turpitude crime must be admitted regardless of punishment if the conviction is less than 10 years old.  If it is older than 10 years, it is admissible only if its probative value substantially outweighs its prejudicial effect—a reverse 403 standard if you will.[4]

The right goal

Even with all the preparation in the world, none of us are television lawyers and we will likely never have a television moment on cross-examination. The best cross-examinations in the real world happen because a witness goes off the rails after the prosecutor calmly and persistently tells them things that are undeniable and damaging. My goal on cross is to either:
            1)         get the witness to admit all the elements of the crime, or
            2)         prove the witness is not truthful.

I stop asking questions as soon as I do either of those two things. If you don’t think you can achieve either of these goals, you might not want to ask the witness any questions. The only exception to this rule of thumb is if the defendant is called to the stand—if that happens, I think you have to cross-examine him no matter what.[5]

            A defendant will almost never admit to all the elements of the crime. However, I have seen where the prosecutor simply read off the elements listed in the information and the defendant agreed that he did each of those things. Can you guess what the prosecutor did afterwards? Did he pass the witness? No. He kept asking more questions, and the defendant walked back an answer.  Quit while you’re ahead!

            If the defendant doesn’t testify himself, his friend or family member might, and these folks are fairly likely to admit most, if not all, of the elements of the offense—they just may not know what is happening when they are doing it. Don’t underestimate a prosecutor’s ability to make some headway by just going over the elements with them.

            Once I tried a defendant for possession of marijuana. His girlfriend was in the passenger seat when he was pulled over for expired inspection, the officer smelled marijuana as he approached the vehicle, and he found marijuana when he searched the trunk. At trial, the defense called the girlfriend to testify, and she said she knew what marijuana smelled like and that the vehicle did not smell like marijuana. Defense counsel was trying to prove a lack of probable cause to search the vehicle; the defense had also been challenging if the substance itself was actually marijuana. I had no idea the girlfriend was going to testify, nor for what purpose, so I sat there for a moment and thought about my two goals (getting a witness to admit all of the elements of the crime or proving her to be a liar) and my organization for success (elements, evidence, and lies). Maybe she could help me prove the case?

            I had already admitted the marijuana in a baggie labeled State’s Exhibit No. 1. It reeked of marijuana—the odor was undeniable. So I asked her, “You said you know what marijuana smells like?”
            “Yes.”
            I approached her with the baggie and asked, “What does this smell like?”
            “I don’t know—I don’t smell anything.”
            I asked the court, “May I publish the exhibit to the jury?” and the jurors passed the baggie around to each other as they shook their heads in disgust at the overwhelming smell.
           I probably should have sat down right there, but I couldn’t resist and asked her again, “Are you sure you don’t smell anything?”
            Defense counsel jumped up and objected to argumentative and badgering the witness. I finally said, “No further questions.”

            I had started out by seeing if I could use her to prove one of my elements, and I inadvertently proved she was untruthful. I was worried at the time because I had done so little to cross-examine her, but I asked the jurors about it after trial, and they told me, “We knew she was a liar right then. It didn’t matter what else she said after that.”

            If we keep our goal posts low, it will be easier to get into cross, score a point or two, and get out.

The right attitude

Unlike direct examination, where we want the jury to focus on the witness, during cross-examination we want the jury’s attention focused on our own words and credibility. Prosecutors enhance the evidence with our own credibility when we can control the other side’s witness, and we control defense witnesses through the wording of our questions and the attitude we present. I think we should be fearless, genuine, and in control.

            Be fearless. Sometimes, the way we say things is more effective than what we actually say. Like most prosecutors, I was nervous before my first cross-examination, and 10 years later I still get a little nervous. But we should be confident! We have every reason to be confident. We have read more about the case than the witness. We are more comfortable in a courtroom than the witness. We have a lot less to lose than the witness. If the witness is the defendant and he gets ripped apart on cross-examination, he could go to jail or prison. Friends or family members of the defendant who testify are worried about messing things up for someone they care about. We prosecutors are in a much better position than others in the courtroom.

            When waiting on a verdict, I often tell new prosecutors, “If you think this makes you nervous, just imagine how the defendant feels!” The same is true for cross-examination. When a prosecutor cross-examines a witness, it means we have already rested our case. We already proved the defendant guilty beyond a reasonable doubt. And guess what? He agreed with you! If he didn’t think you had proved him guilty, he wouldn’t be taking the stand. If the defense attorney thought you had failed, she likely wouldn’t have called the girlfriend to say what a peaceful guy he was or how he wasn’t really drunk that day. Be fearless because the truth is on our side. If it weren’t, we wouldn’t be trying this case in the first place.

            Be genuine. Sometimes I see new prosecutors trying to do an impersonation of other successful prosecutors. Sometimes it works, and sometimes it falls really flat. I am a thief when it comes to good ideas related to prosecution—I will take and borrow from anyone at any level if it helps me get justice for a victim or safety for the community. But I’ve seen prosecutors say and do things that I just cannot say or do, not effectively anyway. It works great for them, but it’s not great for me. If you’re a total bulldog and you’re ready to bite off the defendant’s head, don’t pretend to be the nice guy. If you’re friendly and measured throughout the trial, don’t go straight for the jugular on cross-examination. Jurors have formed some kind of opinion about who you are and how you act, and if you change it all just for cross-examination, then it may hurt your credibility instead of the witness’s credibility.

            Be in control. I think Terence MacCarthy probably has the best advice on how to be in control; he says to ask leading questions that are as short as possible. Generally, the rule is one fact per question. For example, if you want to prove that the defendant has a 2007 green Mitsubishi Eclipse, you can ask, “Isn’t it true you drive a 2007 Green Mitsubishi?” But you are in greater control if you break up the question into:

            “You drive, right?”
            “A car?”
            “It’s a Mitsubishi?”
            “It’s a 2007?”
            “Green?”

The last question is only one word. It is extremely difficult for someone to argue with a one-word question. If they do, they make themselves look a little unhinged or like they’re lying.

            My other favorite advice on control comes from Irving Younger’s “10 Commandments of Cross Examination,” which is still available for free on YouTube.[6] You won’t get better advice on cross. Commandment No. 6 is “Don’t quarrel with the witness.” You don’t want to get into an argument with the witness—it just makes you look like you are on the same level as he is. If an offense report and a judgment say the defendant committed a robbery by stealing from a bartender with a knife, and the defendant denies it, don’t argue with him. Just point out all the evidence you have to the contrary in a direct manner:

            “So you didn’t rob the bar?”
            “You didn’t go up to the counter?”
            “You didn’t have a knife?”
            “You didn’t say [looking down at the offense report and reading directly], ‘Bitch, give me the money or you’re gonna get it!’?”
            “You just got arrested for it?”
            “And you just pled guilty to it?”[7]

By the end of this line of questioning, everyone in the room will believe that the defendant did everything you just said, and they will think of him as a liar. You don’t have to deliver these questions in a sarcastic or indignant manner for them to be effective. Remember that the only thing you likely proved with these questions was that the defendant pled guilty to robbery. Don’t argue facts in closing argument if the only thing that happened on the record was that a witness denied those facts.

            If you have 10 days—or 10 minutes—to prepare for cross examination, you can get results with the right organization, the right goal, and the right attitude.

Conclusion

Because so many of us are struggling with large dockets and weekend prep time, having some kind of plan to start thinking about cross examination can make a difference. I hope that you find this article helpful to your effort to preserve justice in your community.  God bless you all for what you do, and if there is anything I can do to help, feel free to email me at [email protected] .hctx.net.

Endnotes

[1]  “Permission” in this context is that feeling when everyone in the room knows the defendant or witness is full of it, and they want the prosecutor to reveal it. You get that feeling from the witness’s responses to questions, where he is lying and then has to stick to the lie over and over again. I’ve found that confronting a defendant or witness with the elements, followed by the evidence on the State’s side and the logical destruction of his explanation, is the best way to show the holes in the witness’s story and get that “permission” to reveal his lies.

[2]  In the beginning, I’ll always ask, “This is what you were arrested for?” not “What are you guilty of?” A defendant can’t deny getting arrested for a crime, though he can certainly argue whether he’s guilty. If he answers this question by saying he never assaulted his girlfriend, the prosecutor can go down a list of questions about who agrees that he is guilty of it: “The officer thought you did it? Your girlfriend said you did it? The only one who was there that night that says you didn’t do it is you, right?”

[3]  Yes, yes, I know we should never ask a non-leading question on cross examination, but I do it in limited instances when I don’t care what the answer is. If I ask him, “What’s that?” as I point to an extraordinarily obvious photo of blood, then I don’t care what he says. I have asked an assault defendant this very question while pointing to a white shirt soaked wet with blood as red as a cardinal. Did he say blood? No. He said it was sweat! Give defendants the chance to lie, and a lot of them will take you up on it.

[4]  TRE 609 (a) & (b).

[5]  I think this is unavoidable because if the defendant takes the stand, he is going to testify to something that negates an element or establishes a defense. Even if he doesn’t, refusing to question him makes the prosecutor look scared—as though the defendant will reveal something you are afraid of.

[6]  Available at https://youtu.be/dBP2if0l-a8.

[7]  On this question, they may say no or something like, “I just did it to get out of jail.” These answers generally fall flat without the necessity of a response from the prosecutor.