Controlling runaway prosecution witnesses is essential for successful Virginia criminal defense

Controlling runaway prosecution witnesses is an approach and skill that is essential in a criminal defense lawyer’s arsenal. As a Fairfax criminal lawyer, I accept as a given that plenty of Virginia police and civilian prosecution witnesses are going to try to take control of cross examination (under Virginia Supreme Court Rule 2:611) in order to put their own spin on evidence, to avoid admitting uncomfortable and embarrassing information, and even to try to stick it to the defense if they are hostile to the defense side. Difficult prosecution witnesses are reason enough why Virginia criminal and DUI defendants need lawyers with substantial and successful experience cross examining such witnesses. By now, I have taken hundreds of cases to trial and cross examined hundreds of challenging prosecution witnesses. My decades of martial arts training and practice helps me keep powerfully grounded as I keep control of the cross examination to the greatest possible defense advantage in pursuing victory against Virginia DUI, felony and misdemeanor prosecutions.

Engaging witnesses as human-to-human, while ready to be relentless in controlling the situation by the criminal defense lawyer

I regularly engage in pretrial conversation with Virginia police and other prosecution witnesses. I do this because I genuinely like getting to know people — even opposing witnesses — and also because such conversation begins my cross examination engagement with that witness before they even take their witness oath. Not only does such conversation give me a better idea what makes the opposing witness tick, but also often gives me new intelligence that was not revealed in discovery, and also humanizes me and my client in the eyes of that witness, to possibly make them think twice before doing anything to violate their witness oath to tell the truth and, by necessary conclusion, to answer the question posed by the examining lawyer, nothing more and nothing less. No matter how good natured is such conversation between me as a Virginia DUI and criminal defense lawyer — and all such conversation needs to be genuine and never fake nor phony — and the opposing witness, I take off the proverbial kid gloves in persuasively controlling the situation when they are on the witness stand, both for objecting to harmful and inadmissible questions and answers during prosecutor direct examination of those witnesses, and during my cross exam of them. If any of my opposing witnesses are taken by surprise by my relentless defense of my clients after having heard me banter good naturedly with them in the courthouse hallway, then they may be overlooking my duty to fully serve my client and only my client — within the bounds of the law and lawyers’ professional conduct rules — in my pursuit of victory against Virginia felony, misdemeanor and DUI prosecutions.

Controlling cross examination for the Virginia criminal defense side means that the defense lawyer should rarely seek the judge’s help in reigning in a runaway witness

Part of controlling cross examination is for the Virginia criminal and DUI defense lawyer not to seek judicial intervention against a runaway witness other than in the most extreme situations, which should be rare. Looking to the judge for such assistance can be seen as abdicating the criminal defense lawyer’s power, or not having it at all, when that power is essential for the judge, prosecutor and opposing witness to recognize that if they cross the defense lawyer’s path, the consequences of doing so (for instance getting the judge reversed on appeal, and having the prosecutor and opposing witness look bad to their detriment to the judge and jury) are less desirable than not crossing the lawyer’s path. Moreover, the judge has his or her own oath and viewpoint on carrying out that oath, which may not mesh with a defense request for judicial help against a runaway prosecut9ion witness.

I give opposing criminal and DUI witnesses the choice between a proverbial thumbtack and a dagger

Many police in the Fairfax courthouse and other courthouses are approachable and more open than police in plenty of other settings. However, just as I take off my proverbial kid gloves in persuasively controlling the situation in court, police officers and many civilian prosecution witnesses do the same. Examples of that include their starting to testify in direct examination before I have completed my question (which is often a result of being apprehensive about what is coming in the rest of the question, the witness’s usual way of conversing, or the witness’s effort to control the situation). Cross examination is not a conversation. It is my one-way opportunity to continue telling the defendant’s persuasive story through questions that highlight the most favorable evidence, deflate the most defense-harmful evidence, and, sometimes, bring out new defense-favorable evidence. When a prosecution witness answers my questions before my questions are finished, answers the witness’s own question rather than my question, or takes a potshot at me rather than answering the question (for instance saying “I thought you said you were going to be asking me about A, but now you are asking me about Z” (to which I can respond: “A is coming; Z is the result of your last answer), that is the time for me to offer the prosecution witness the choice between the discomfort of a proverbial thumbtack or dagger. The thumbtack may be uncomfortable, but less unpleasant than a dagger. Consequently, when the witness keeps talking over me, I might remind the witness that the proceedings are being recorded and won’t be sufficiently recorded if we are talking over each other. When the opposing witness answers his or her own question, I might respond with: “Now that you have answered your own question, please answer my question.” The foregoing approach confronts the witness with the reality that by not answering my question, they have not followed their oath. If the runaway witness has puffed out his or her chest on direct examination about all the great relevant experience s/he has as a police officer, I might say: “Surely with all your experience as a police officer, you know you are obligated to answer my questions, and not your own question.” After the opposing witness has accepted the thumbtacks of my questions rather than a dagger, the accumulated thumbtacks can have more power than the dagger itself.

Cross examination of prosecution witnesses is about persuading the judge and jury, and not about winning any battles with the witness

It is fun to see prosecutors and their witnesses lose sight that the prosecutor is supposed to be there to pursue justice for his or her side and the prosecution witness is there to answer questions without any bias, and for them instead to try to show that they know more than me at trial, or to try to put me in my place. When they do that, they have given up their own power, because trials are about pursuing a trial victory, and not about showing who is the better lawyer or person. Consequently, the jury and (sometimes to a lesser extent) the judge can be turned off from the Virginia criminal defense lawyer’s persuasion efforts if s/he comes off too strong. That is where my martial arts lesson come handy in my using only as much energy as needed to obtain the results I want at each stage at trial. The uncooperative prosecution witness often can be coaxed into compliance with their oath by the criminal defense lawyer’s approaching them with respect and understanding, even if the opposing witness displays neither. If the opposing witness — particularly one who touts their experience and expertise — continues to run away from even the simplest questions being asked of them, the judge and jury might welcome the criminal defense lawyer’s weighing in even firmer with the witness, but the criminal defense lawyer does not always know when that time has arrived, which calls for erring on the side of persistence and patience in controlling a runaway prosecution witness.

The Virginia criminal defense lawyer can continue telling the persuasive defense story even when a runaway prosecution witness is on the stand

A major part of effective controlling of cross examination is for the Virginia criminal defense lawyer to continue telling a coherently persuasive story at every stage of the trial. The runaway opposing witness may be surprised that s/he is not ruffling the feathers of the criminal defense lawyer who is taking that persuasive storytelling approach, because the sufficiently experienced defense lawyer is able to work around almost any obstacle the opposing witness throws, while the defense attorney continues telling that persuasive story.

Do you like what you have heard in this blog entry? If you or a friend or family member are being prosecuted for an alleged Virginia DUI, felony or misdemeanor offense, Fairfax criminal lawyer Jonathan Katz will be delighted to meet with that defendant for a free in-person confidential consultation. To schedule your meeting with Jon Katz, call 703-383-1100.