2017Trial advocacy
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Research all defenses
All defense witnesses
Go and talk to defense witnesses with a
prover
Assess defense witnesses
Try and draft cross before trial
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Defense experts
Alibi witnesses
defendant’s family members
The defendant
Ethical parameters
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Do you cross at all
Set limited goals
Not going to win the case
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Theory of the case
Theory of the witness
Goals for closing argument
 Review the instructions
▪ Ability to perceive recall
▪ Prior inconsistent statements
▪ Interest in the outcome
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Defense theory
 Identification
 Wrong defendant
 Dui-wrong driver
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Lying?– why?
Mistaken? How did he make this mistake?
Fashion your cross to make this point
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Argue
Fight over small stuff
Ask questions longer than seven words
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Stick to the facts
Build cross to logical conclusion
Stop before the end—save it for closing
argument
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Control the witness
State facts witness must agree with
Not trying to learn—you’re teaching
Limit areas of cross
Begin and end strong
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Lead
One fact per question
No modifiers
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Realistic goals
Do you need to cross-examine at all?
If so what is your theory?
Stick with that
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Your chance to testify
Begin with constructive agreement
Look to what witness did not do
What doesn’t make sense
Save the why how so questions for closing
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You don’t need to ask
Gives chance to explain
Disagree with your closing argument
So……
 Why did I need to ask that question?
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No one can disagree with you then
Answer your own questions
The best way possible
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Commit
Credit
Confront
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You just told the jury that the defendant was
with you that evening—correct
 Do not act like you believe this testimony
▪ Are you telling this jury today, the D was with you
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This is not the first time you have spoken
about that evening
You spoke with an officer
The night of the robbery
He came to your home
Asked you what you knew
He was wearing a uniform
Taking notes
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Isn’t it true you told the officer you had not
seen the defendant for days?
That’s what you said
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If witness was telling the truth
You’re using this for impeachment
Just make the witness say he said it
Be prepared to prove it up
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The credit part adds:
 Prior sworn testimony
 Before the grand jury
 Court reporter
 Understood you were under oath
 On a day closer to the events
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You were asked this question and you gave
this answer:
 Q: Who did you see the night of the robbery?
 A: I was alone all night.
 Q: So you did not see the D that evening?
 A: Man, I hadn’t seen him in days!
 Were you asked that question and did you give
that answer?
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Do not paraphrase—witness can deny making
the statement
Do not ask if either statement is true
Do not ask were you lying then or are you
lying now
Get in—get out—argue the lie in close
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Prepare
Know the opinion
The expert
The applicable area of expertise
Keep looking, ask, figure out theory of the
witness—hired gun, straight shooter
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Attack qualifications
Attack quality of basis information
Attack method of analysis
Impeach with prior statements
Learned treatises
Attack assumptions
Expose bias
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Attack qualifications
Attack quality of basis information
Attack method of analysis
Impeach with prior statements
Learned treatises
Attack assumptions
Expose bias
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Qualifications—rarely successful, see James
O’Donnell, Dr. Pharm.
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The Court finds that O'Donnell does not
possess the qualifications to render a
causation [**9] opinion in this case
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243 F. Supp 672
3 To be clear, the one-year Pharm.D. program that
O'Donnell completed in 1971 was a degree in
pharmacy, not pharmacology. Notably, O'Donnell
admitted in his deposition that from approximately
1982 to 1985, he intentionally and falsely advertised
that he possessed a doctorate in pharmacology in
an attempt to attract more interest from lawyers for
his consulting expert business. See O'Donnell Dep.
at 21-22.
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Check references
Westlaw
Google
Call prior prosecutors
Get transcripts
Read articles
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Limits of the opinion
All the things the witness did not do
All the things the witness does not know
Brand new method?
Bad data?
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Copy of ad, web site
“The Care and feeding of an Expert Witness”
Number of times the witness testifies for the
defense
Percentage of income from testimony?
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Control witness with:
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Facts
Statements
Prior testimony
Learned treatises
Assumptions witness made
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Repeating direct
Following organization of direct
Open ended questions
Long compound questions—with long
answers with selective information
Failure to listen to answer
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Not using opposing expert to
Bolster your expert’s background
Bolstering your expert’s methodology
Validating written materials your expert relies
on
Points not focused
Battle on experts turf—stay on facts of your
case
Buying into opponent’s view
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Frontal attack on opinion
Buying into opponent’s view
Not getting answers to your questions
Showing you’re frustrated with expert’s
answers in cross
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Person
Process
Product
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With a prover on the line
Won’t talk—document
Will talk—what was she hired to do?
What was she told by defense counsel?
ask what information would change her
opinion
Ask her all her assumptions
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Straight shooter
 Build up your expert
 Limited by information he was given
 Stick to the report
 What expert did not do
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Prior transcripts
For one side
Ads in publications
Cookie cutter opinions
Computer search
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Know the area of expertise
Use your expert to identify weaknesses
List of things he didn’t do
Keep it short—he’s been in court more than
you have
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Find learned treatises that disagree
Read the latest material (carbon date the
expert)
Have your expert help you craft your
questions
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Subpoena all raw test data
Think anti-social personality—it almost
always fits
Information witness not given? (know this
answer from interview, subpoena, defense
discovery)
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majority vote re diagnostic criteria
Subjective data—what patient tells the
doctor
Diagnoses change—DSM- II Homosexuality
was identified as mental disorder until 1973
vote
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What he is relying on
What he wasn’t told
Prior statement (transcripts, articles..)
witness must admit
Chicago punk rock documentary, entitled:
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DUI expert
Used tests himself
Hundreds of times
Some measure of sobriety
Not a toxicologist
Video is only two dimensional
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Brainstorm closing argument
Theory of witness
Bias
Mis-perception
List all facts that support these theories
Those are the facts to cross the alibi witness
on
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The crime happened
Motive to commit crime?
Defendant had opportunity to commit crime
Witness wasn’t watching the defendant the
whole time
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Create timeline
First time this information revealed
Tell it to anyone else? (find this out before
asking)
Relationship with defendant?
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Built in impeachment
Try and speak to witness
Theory of witness
 Alibi witness
 fact witness
 character witness
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Try and talk to them before trial
At trial: Respectful of mother—to a point
Relatives—highlight relationship
Alibi method—first learned of Defendant’s
arrest
Jail records for visits
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List the things witness did
What witness did not do—delay?
Listen for discovery violations
 Didn’t trust the cops—knew Jimmy had a lawyer
 Sitting in jail
 Tell me the first time you told this to defense
counsel, or an investigator
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Organize according to closing argument,
facts of case
Previous statements
Proof of state of mind/mental state
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Motive
Theory of the case
Brand new version of events—generally selfdefense which was never raised before
arrest= inconsistent Jenkins case
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Bias
Sensory defect
Prior convictions—offer in rebuttal, don’t ask
on cross
What sounds new/untrue?
Misdirection—big strong cyclist gets cut off
LISTEN
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Timeline
Facts
Listen for new facts
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Don’t be cross
Let the witness make the jury mad
Get answers
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You live in the home
You were home the night of October 17th
You had a few beers (track D’s statement to
police)
You heard a crash
You ran into the bedroom
Saw Ronnie
He was seven years old
You gave him “reasonable discipline”
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You are 5’11”
You weigh 185 lbs
Ronnie was seven years old
In his pajamas
You hit him in the head
He fell over
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You had ten beers that night?
 I can hold my liquor
▪ Has your question been answered?
▪ Ask it again---slow be patient
▪ You drank ten beers that night?
▪ I can handle a lot more than that
▪ Mr. Davis, you drank ten beers that night
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Put it on you—I’m sorry, I misspoke, let me
try this again,
You had ten beers that night, correct?
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Keep at it
Build your close
Ask witness if he understands your question
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Go small
 You walked to your car
 Opened the door
 Got in
 Put the key in the ignition
 Started the car
 Pulled out
 Drove off
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You had been drinking
Officer asked if you had been drinking
You said yes
Officer asked you to get out of the car
You knew he was deciding whether you were
impaired
You listened to his instructions
Performed FSTS
Did your best (breaking a rule on cross where
it doesn’t matter)
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A fact
Witness must agree to
In a clean sound bite
 You told the jury you were with your cousin
 Who lives here in town
 Who knows you were in jail
 For two years
▪ Clean up on closing argument
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Factual, good faith basis
Reasonable inferences
Go to the judge beforehand if not sure
Don’t comment on post-arrest silence
No burden shifting
Never ever misquote
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Newborn baby vocal chords
NDAA Standards 1-1.1
 The primary responsibility of a prosecutor is to
seek justice, which can only be achieved by the
representation and presentation of the truth
 6-6.3
 Prosecutor should use cross-examination as a
good faith quest for the ascertainment of the
truth.
Same rules apply
Know where you’re going
Stick to facts
Remember the truth is on our side