Crossing starts before your attorney ever steps foot in the courtroom, says Fairfax criminal lawyer

Crossing / cross examining (CE) does not start at the seat of an attorney’s pants, but through careful thought, insight and preparation. As a Fairfax criminal lawyer, I know full well that CE is an art, science and necessity. CE in and of itself will bring no more of an admission of lying by a witness than you will get from your dog. Instead, CE is an engine to chip away at the points a prosecution witness has made during direct examination, to further the most persuasive story of the Virginia criminal defense lawyer, and to bolster the overall defense.  Like so much of what happens at trial, CE benefits from the martial arts principles of being in the moment, being fearless, fully engaging with the opposing witness (whether a police officer, expert witness or civilian) as needed, and to yield and turn away from any pushback from the witness, so that the witness has nothing to push against and so that the cross examining lawyer regains control.

If the cop starts dangerously running away from my Fairfax criminal lawyer during crossing, should my Virginia attorney ask the judge for help?

Who ever said that the judge is a friend of the accused and their Virginia criminal defense lawyer? The judge has their own oath, agenda, personnel and courthouse to take care of. Do not expect even the best jurist to do anything against their oath to benefit the accused. Moreover, if your Fairfax criminal lawyer asks the judge for help against a testifying police officer during crossing, your attorney may be in for a rude awakening of the judge’s taking the prosecutor’s side, hijacking your attorney’s CE, or gnashing their teeth for being asked to intervene in such a dispute.

What should my Fairfax criminal lawyer do if my judge becomes hostile to CE?

Many judges want to move cases along, especially when they see doing otherwise as overclogging court dockets and requiring the court to remain open overtime, thus also paying courthouse staff overtime. Here are three examples of how I as a Fairfax criminal lawyer have handled judges who have seemed to have been hostile, dismissive, or otherwise obstructionist to my legally protected right to be robustly crossing police, civilians, scientific witnesses and other prosecutorial witnesses In one instance, my client was charged with criminally causing damage to the front door of his girlfriend’s mother’s home. No eyewitnesses saw my client cause any damage, but the girlfriend’s mother claimed to have seen my client at her front door after the damage had been done. When I stood up to CE the mother to emphasize how very long it must have taken between the time of any damage and her arrival at her front door, the judge proclaimed “No cross.” If I wanted to trust this judge both in terms of their intentions being in the right place and their understanding of the governing law and the facts, I would have seen this as a confirmation that my client would be acquitted at this bench trial. However, just as we can enter the pizzeria expecting to order spaghetti but instead ordering a calzone, the judge’s viewpoint at moment A can quickly change at moment G. Fortunately, the judge did in fact acquit my client.

In a series of instances, a judge I frequently appear in front of for years has refused voir dire or crossing of the breath technician in Virginia DUI trials, before the certificate of blood alcohol concentration analysis has been admitted in evidence, and not even admitting the certificate into evidence “subject to CE” examination. I can say until I am blue in the face that once ink gets into milk, one cannot extract the ink. Instead, I need to recognize that this is a non-jury trial, and that I can remind the judge that their review of the certificate of analysis needs to be erased from their memories if the judge ultimately determines that the certificate of analysis is not admissible into evidence. In a final example — a happy one –, I stood up for crossing the drug lab chemist in a bench trial, but the judge would barely permit me to answer any questions of the chemist about the methodology used for testing the substance. I maintained my cool over what here seemed an abomination of justice by refusing me CE, and the payoff was that the judge acquitted my client, on a ground that I do not think that even I would have used to grant relief had I been the judge. Moral of the story is to accept judicial victories from wherever they come, wheth

er or not sufficiently based in the governing law.

The witness experiencing crossing cannot escape, at least if your Fairfax criminal lawyer is doing their job right

When a police officer or other prosecution witness is undergoing crossing, it can be a most uncomfortable situation, starting with that it feels artificial to be forced to answer questions from anyone as we go about our day’s activities. A cornered wild animal can lash out in the most dangerously desperate ways, just like a lying or otherwise desperate prosecution witness to do. A good Virginia criminal defense lawyer will not go after the prosecution witness in CE in tit for tat, but instead will take an assymetrical approach (as named by CE master teachers Larry Pozner and Roger Dodd), whereby the Fairfax criminal lawyer first closes the prosecution witness’s escape routes. thus leaving less harm for the opposing witness to cause and more benefit for the defense to gain.

Nobody likes being pressured nor pushed

If your Fairfax criminal lawyer pushes hard on the cop or other prosecution witness subject to crossing, the witness is likely to push back, and sometimes very hard .When your Virginia criminal defense attorney instead starts by getting the prosecution witness to agree with your lawyer (for instance: “You are among only ten percent of officers in your force to be trained in Y”, without telling the witness all the ways that the witness did not follow Y on the incident date), your attorney is putting that witness in a zone of comfort (or of reduced discomfort), in which the witness is not breathing more easily, and perhaps in the spirit of giving the defense more of a benefit than the prosecution witness had every bargained for.

Beware having your trial be the first time that your lawyer has ever engaged in crossing

A person needing major surgery does not want to be scalpelled by someone who has never operated on by a human, and you want to beware of a lawyer who does not perform at trial as if it second nature. When your Fairfax criminal lawyer is performing in court, they have to be ready to get their message out (and to be fully attuned to the situation and surroundings) while all sorts of bows and arrows are coming their way, including staccato objections from the prosecutor, unfair sustaining by the judge of any of those prosecutorial objections, and a prosecution witness seeming to get away with poor decorum by voice and visually, for starters. The time for you to find out how well your Virginia criminal attorney will shine or not with crossing and the rest of trial is today.

Fairfax criminal lawyer Jonathan Katz has successfully defended thousands of defendants for decades, focuses more than 90% of his law practice on pursuing your best defense against Virginia criminal and DUI prosecutions and has the proverbial battle scares to show for it. Jon Katz knows that it is not necessary to see any judge, prosecutor, police officer nor other prosecution witness as evil or the next best thing, but instead constantly to be working to harmonize situations that feel disharmonious for the defendant. Find out how to start a great defense in your case by securing your free initial in-person absolutely strictly confidential initial consultation with Jon about your court-pending case, at 703-383-1100.