Techniques for neutralizing the prosecutor’s cross-examination of defense witnesses in a criminal trialProsecutors work from a disadvantage on cross-examination. As a general rule, criminal defense lawyers present fewer witnesses than prosecutors do, and as a result, the prosecutor will have fewer opportunities to hone his cross-examination skills. If a defense witness has a long criminal record, the defense attorney simply will not call him to the stand. However, prosecutors often must call victims, informants and coconspirators who carry baggage containing long criminal records and promises of favorable treatment. Most defense witnesses, except in white-collar cases, do not leave the same trail of prior reports and testimony that prosecution witnesses do as gist for a prior inconsistent statements cross-examination. Consequently, prosecutors often resort to several routine techniques on cross-examination. A sharp criminal defense lawyer can defeat some of these routine techniques with valid evidentiary objections; others may be neutralized by preparing the defense witness.
Prosecution technique: Comments on the credibility of other witnessesA common, but improper, tactic is for the prosecutor to ask a defense witness to comment on the credibility of another witness, usually a police officer. For example: Q. So you say you never had the gun that is Government Exhibit 1 in your hands on June 5? A. That’s right. Q. You heard Officer Smith’s testimony yesterday, didn’t you? A. Yes. Q. And you heard him testify that he saw you with the gun in your hands, pointing it at Mr. Lewis, on June 5. You heard that, didn’t you? A. Yes. Q. So you’re telling this jury that Officer Smith was lying when he gave that testimony yesterday? A. If that’s what he said, he must have been. Q. And you’re telling the truth? A. Yes. This cross hurts the defense for several reasons:
- It enables the prosecutor to repeat, sometimes at length, the testimony of his witnesses.
- It puts the defendant in the uncomfortable position of calling reputable witnesses “liars.” Most people, including jurors, find that accusation distasteful and will hold it against the defendant.
- It is nearly impossible to give a direct answer to any of these questions. Nearly any answer sounds evasive (e.g., “I don’t know,” “I can’t say; I just know what I said,” “I don’t know if they’re lying or if they’re mistaken.”). Any answer invites safe, follow-up questions that mostly consist of repeating the prosecution witnesses’ damaging testimony and getting the defendant either to assert that the witnesses were mistaken or that the witnesses are lying. Jurors do not like evasive witnesses. Getting a witness to answer evasively, even on minor points, is one of the most devastating of cross-examination techniques.
Prosecution technique: Admission that witness did not notify policeAnother common prosecution technique on cross-examination is to elicit from a witness an admission that he did not notify the police or prosecutor of his exculpatory story prior to trial. This is done with a question like, “Why didn’t you tell the police before?” When the witness is the defendant on trial for criminal charges, use of this technique is restricted to those instances in which the defendant made a statement to the police or grand jury, but omitted the exculpatory story or some of its details. If, on the other hand, the defendant chose not to speak at all prior to trial, drawing any attention to the defendant’s pre-trial silence might impinge on his Fifth Amendment privilege against self-incrimination. This prosecution technique usually is not objectionable. Furthermore, many prosecutors will ask the question in an open-ended fashion, inviting the witness to explain with why he did not speak to the police. While such a style is risky for the prosecutor, even more damaging is a witness who, given the chance, cannot answer a “why” question. An experienced criminal defense lawyer will ask the defendant this “why” question well before trial, and explain the importance of having an answer to this question. There are many possible answers, which vary in helpfulness from believable but apologetic, to those that throw into doubt the integrity of the prosecution. For example:
- Distrust of the police, especially based on past experience. This rings true especially for minority group members from disadvantaged neighborhoods.
- The witness, in fact, may have contacted the police, but they did not have any interest in speaking to him.
- The witness was interviewed, but noticed that the police stopped writing whenever she said anything helpful to the defendant, so she realized they had no interest in the truth.
- Counsel advised the witness that the police could not be trusted and that he should save the story for trial.