Witness cross examination is an essential part of your criminal lawyer’s work, says Fairfax criminal defense lawyer

Witness cross examination (WCE) is critical for your criminal lawyer to execute and to do well. As a Fairfax criminal defense lawyer, I know that WCE is an art that is an essential part of persuasion and damage control. A legitimate series of questions for you to ask your potential Virginia criminal lawyer is not only about the attorney’s trial and criminal defense experience, but also about the attorney’s experience and approach with cross examination. WCE is not a cookie cutter approach, but instead is a tool to advance the criminal defense lawyer’s persuasive arguments, to dismantle the prosecutor’s case, and to weaken the direct examination testimony of police and other prosecution witnesses. When done well, WCE less often reveals major untruths than controlling the opposing witness to obtain desired answers and to deflate what the witness said during direct examination.

With witness cross examination, your lawyer can give the examinee a choice between simply answer the question, or being asked a series of additional questions to yield the desired answer

Police officers and other subjects of witness cross examination often are automatically uncomfortable by being controlled and not being in control. They must answer the questions posted to them, unless the judge sustains an objection or otherwise stops a particular question. Witnesses rarely can ask their own questions, other than asking to repeat or clarify a question, which, if done too often, can reflect negatively on the witness’s recollection, reliability and credibility. If the witness resists answering a simple yes or no question with a yes or no, they can be trained to comply by facing a series of additional questions until they simply answer yes or no. Of course, your Virginia criminal defense lawyer does not want to alienate the judge and jurors deciding the case, so such acceptable approaches exist to obtaining such compliance as asking the witness whether they agree with what the lawyer has just said, rather than continuing to ask the same question over and over again. Many cross examination classes and seminars focus on only asking short questions that are less likely to enable the witness to slip away from the question, and to avoid asking questions to which the lawyer does not know the answer. The more advanced, engaging and persuasive approach is for the examining attorney to move the questioning forward as an interesting conversation that tells the lawyer’s persuasive story, while still keeping the questions short enough to avoid the examinee’s slipping away from the question, and to take calculate risks at asking questions to which the examiner does not know the answer, but where the likely answers are not likely to hurt the defense. A great cross examination teacher and criminal defense lawyer once likened each cross examination question as being like thumbtack that is less uncomfortable for the witness than being stuck with multiple thumbtacks rather than only one, where at the end of the questioning the witness is sitting on a chair proverbially riddled with thumbtacks.

WCE is about persuasion, and not about brute force

Examinees during witness cross examination have a whole host of reasons to seek to slip away from the questions, including avoiding lies they have told, avoiding uncomfortable truths, and avoiding an acquittal for the criminal defendant. Brute force will rarely enable your Virginia criminal defense lawyer to win over that. One approach to effective WCE is actually soft cross examination. For instance, as my great teacher and trial lawyer Gerry Spence underlined, sometimes we can dismantle a snitch’s (also known as cooperating witness) testimony by including a chapter (series) of questions showing how abysmal is that snitch’s life in jail, being told when to go to sleep and awake, when to eat, and without any privacy to even relieve themselves in the toilet. Consider, for instance, my Beat the Prosecution podcast guest sujatha baliga(opens in new tab)‘s (who spells her name in lower case) great discussion about how a criminal defense lawyer can dismantle the prevaricating testimony of a child witness with persuasive gentleness rather than harshness. On top of all that, when your Virginia criminal defense lawyer conducts WCE at a conversational clip, it seriously interferes with the witness’s ability to cook up answers along the way, because the pace of questions is moving too fast.

Directly the examinee and prosecutor on your Virginia criminal defense lawyer’s left hand, when the right hand is the one packing the punch

As a Fairfax criminal defense lawyer, sometimes I intentionally or not get the examinee during witness cross examination and/or the prosecutor to focus on my left hand when it is the right hand the is packing the punch. As but a pretrial example, I once defended a client accused of damaging property (where I got the case dismissed via Virginia’s satisfaction and discharge / accord and satisfaction(opens in new tab) law). Curiously, when the reporting police officer arrived for the first (and prosecution-continued, over my objection) trial date, the officer placed before me a looseleaf binder of carefully curated photos of my client renting the vehicle he drove during the incident date, with the police officer thinking he was scoring some points telling me that it was indisputable that my client was the one on the scene. The trouble for the police office was that the defense was not disputing that my client was on the scene, but instead that he did not intentionally damage any property.