| Mike Nifong on the art of cross-examination | |
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| Tweet Topic Started: Mar 7 2010, 10:39 AM (197 Views) | |
| Quasimodo | Mar 7 2010, 10:39 AM Post #1 |
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http://www.wadebyrdlaw.com/CM/Articles/Articles52.asp POINTERS FOR CROSS EXAMINATION NCATL TRIALBriefs Magazine Fall 1998 Copyright © 1998 by North Carolina Academy of Trial Lawyers TO BEGIN WITH: Ask yourself, "Is there anything the witness can say that can help my case?" The answer tells you whether to cross and how. You're not there to show the jury how brilliant you are. Cross examine to show weaknesses in the witness's position or in his credibility or in his perception of the case, or if there are other ways that crossing that witness will concretely help you. (Paul D'Amato, Esq.) THREE STEPS. A good cross has three phases. They go in this order: 1) Extricate: extract everything the witness knows that is favorable to you. Do this before you attack, so the witness will be less resistant. 2) Close the doors: before the witness knows what you're going to ask in phase three, close any doors through which the witness could escape. 3) Impeach. If you start with phase three, phases one and two become hard if not impossible. (F. Lee Bailey, Esq.) (snip) KNOW YOUR GOAL. Don't spend time beating a dead horse. Know where you're trying to go and how you're going to get there. Once you're there, stop. But don't be afraid to change your plan if you have good reason to do so. If your original plan isn't working, or if something comes up that seems to dictate a change, don't just barge on with the original plan. You have to be flexible enough to make strong decisions on your feet, because as important as preparation is, you can't plan for every eventuality. Think of it this way: Know your destination in advance, know all the roads in advance, but decide the exact route en route. (Michael Nifong, Esq.) HOME RUNS. In baseball, the best batters don't try to hit a home run every time. Don't try to do it on cross, either. When you miss it gives the witness too much confidence, so the rest of that examination is harder. (Michael Nifong, Esq.) (snip) OFF BALANCE. With a witness who's lying, don't examine linearly. Don't hand the witness the alphabet, so that he or she knows you're going to ask C because you just asked B. Get the witness off balance and keep him or her there. Disrupt their rhythm and don't let them figure out where you're going next. That makes it harder for them to maintain their fiction. And don't fall into the easy trap of letting the order of direct determine your order of cross. Plan by points, not by linearity or by the order of direct. At the start of cross, the witness does not know your plan(so why telegraph it by working linearly or in the same order as direct? (Michael Nifong,Esq.) (snip) YOUR BEHAVIOR ON CROSS. I try to make myself contrast with my opponent. If she's measured and quiet, I'll try to add emotion or vice versa. (Michael Nifong, Esq.) (snip) BE GENTLE. Treat the witness gently if there's something small you can get from him or her. A softer approach often gets you something you did not expect, because the witness's guard is down. (Michael Nifong, Esq.) (snip) THREE POINTS. On cross, hit no more than three points. Lawyers who go on ad infinitum are a turn-off. Be succinct and professional. If there are more than three or four points, try to do them with other witnesses. This is usually easier to do than it sounds. We lawyers like to hear ourselves talk, so instead of paring cross down to an important three points, we take the witness through direct again. This is extremely helpful for the other side, and they will thank you afterwards. (Wes Covington., Esq.) (snip) RELAXATION. Making the witness think you are relaxed will keep the witness from relaxing. After all, the other side may prepare the witness for everything else, but not for you to be relaxed. So the witness is more likely to get nervous. When that happens, I call attention to the witness's nervousness by asking, "Are you okay?" It makes me seem like a good guy because I'm concerned, but it also makes the jury see that the witness is nervous. When jurors see that I'm relaxed and the witness is nervous, they regard me, not the witness, as the credible one. In closing, the jurors know what I'm talking about when I ask them to remember who was relaxed on the stand versus who was nervous(and why that might have been. Nervousness undermines credibility. (Wes Covington, Esq.) EMPHASIZE. Find a way to emphasize the one key point. When you get the key answer about that key point, respond by using body language or a facial expression different from anything else you've done. (Wes Covington, Esq.) (snip) WAITING FOR YOUR CUE. I had a law school buddy who had a joke prepared for every class. He had it ready to go and waited for the professor to say the right thing to "cue" the joke. When my buddy said the joke everyone thought it was spontaneous. This works on cross. Have a plan and know what to wait for that cues it. Set traps on cross by asking questions designed to have the witness give you the cue. (Michael Nifong, Esq.) (snip) BIAS. One of your strongest tools is bias. Totally impartial witnesses are rare. Even a witness with no personal stake in the case will usually still have an opinion how the case should turn out(and they will think it is fair to bend a little to help it come out that way. In the Simpson case, the North Carolina film teacher who'd taped Mark Furhman did not come forward when she heard Fuhrman on the stand even though she knew he was lying, because she believed that justice was on the prosecutor's side, not ours. She thought it was right to refrain from helping Simpson. If you can convince a witness that you have the better case, he or she will often change and help you. (F. Lee Bailey, Esq.) (snip) Edited by Quasimodo, Mar 7 2010, 10:41 AM.
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7:14 PM Jul 10