Direct & Cross Examination in Criminal Cases

1. Direct & Cross Examination in Criminal Cases Presented by Joseph Passanise Solo and Small Firm Conference June 11, 2010

2. Overview • Vision • Direct in Criminal • Focus on Cross in Criminal • Practical Tips

3. Options for Jury 1) Guilty 2) Not Guilty 3) Not Sure

4. Vision • Theory of Reasonable Doubt • Direct and Cross Examination to Support Theory of Innocence

5. Vision • Will the Jury Sympathize with Witness? (Gov/Yours) • Does the Witness Help/Hurt? • List of the Evidence & Facts to Support Theory (Exhibits) • Include the Source for the Fact

6. Supporting Your Theory of Innocence • Prove Facts Supporting Theory • Impeach Prosecution Case • BUILD CREDIBILITY

7. Direct Examination 1) State Name / Occupation 2) Build Rapour 3) Direct your Attention to Date, Time, Place – Were you there? 4) What did you See? 5) What did you Hear?

8. Direct Examination 6) How Close? 7) Under Influence of Alcohol/Drugs? 8) How Long Did you See/Hear? 9) What did you Do? 10) Then, what did you do? 11) How did that make you feel?

9. Cross Examination is a Skill & Art Build Credibility

10. Video

11. Cross Examination Bias is Never Collateral! 1)Davis v AK, 415 US 308 (1974) 2) State v Hedrick, 797 S.W. 2d 823 (MO App. 1990)

12. Cross Examination 1) Right to Present a Defense 2) Right of Confrontation Character Assassin!

13. Themes for Theory of Innocence 1) Lack of Curiosity to Investigate 2) No Corroborating Evidence 3) Incomplete Evidence 4) Confusing Evidence 5) Contradictory Evidence 6) Investigation Compromised 7) Bias in Witnesses 8) Inconsistent Statements

14. Cross Examination 1) One Fact 2) Evidence From Witness 3) Build Towards Theory 4) Listen to the Answer / Use

15. Cross Examination 1) Law Enforcement 2) Lay Witness A.K.A “Little Helpers” 3) Expert Witness 4) Child Witness

16. Police Officers Can Help 1) Not limited to Just the Case –(Lead Investigators – Protocol) 2) They are Quasi-Experts • Specialized training • Continuing Education • Investigative Subpoenas • Search Warrants • Statements / Miranda • Search Incident to Arrest

17. Lay Witness 1) Bias 2) Inconsistent Statement (Chronology) 3) Don’t Argue 4) Control the Flow

18. Expert Witness 1) Pick a Point or Two and Hit Hard 2) They Will Always Want to Explain 3) Get them Off Stand

19. Child Witness Please don’t make me cry!

20. Parents Siblings Step Parents DFS Friends Child Advocacy Center Grand- Parents Juvenile Officer Counselor (Psychologist) Doctor Police Officers Sunday School Teacher Nurse School Nurse Minister Teacher The Iron Curtain

21. Benefits of Prepared Cross • Benefit of Doubt from Court • Builds Credibility • Jury Pays Attention to you! • Limits area of Re-direct?

22. Some Rules of Engagement A. Know Your Case Better Than Government 1) Be prepared to cross with no notes – It is intimidating ! B. Be Discerning 1) Look at witness/keep eye contact 2) Watch Non-Verbal Clues C. Control the Flow 1) Cover Topics Out of Order 2) Open Questions in Deposition

23. Some Rules of Engagement D. Use Exhibits - Crucial E. Testify For the Witness 1) Is that right – Yes/No F. Bring out the Biasness G. Know Your Style H. Listen to Testimony and Use it!

24. Why Don’t We Use Open-Ended Questions in Time Because… 1) Lose control over witness 2) Don’t always know answer 3) You will get CONVICTION ASSURING ANSWERS!

25. Practical Tips 1) Practice in Depositions 2) Style and Tone 3) Take a Non-Verbal Class 4) Read Posner / Dodd Book 5)Have Curiosity 5) Eye Contact 6) Pauses

26. Practical Tips 7) Use Subpoenas 8) Inconsistent Statements Destroy Witness Credibility

27. Thank You 2974 E. Battlefield Springfield, MO 65804 Phone: (417) 882-9300 Fax: (417) 882- 9310 www. Entrapped.Com