The Legal Advocate

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Cross-Examination Part Two: Finessing the Criminal Defendant

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amyHanleywritten by guest blogger and NITA 2014 Next Generation Faculty Amy Hanley

We’re all familiar with the stereotype of criminal prosecutors. My own mother believes my daily contact with others is a series of hostile interrogations, one after the other, with me emerging triumphant. Jurors expect us to be harsh, and as a result, we often confirm this perception, conducting lengthy, aggressive cross-examinations that are more show than substance.

While there’s certainly a time and place for the forceful cross, I suggest our default mode should be finesse. Outsmart the guy accused of murder instead of verbally bludgeoning him. For this, you must stay relaxed, pack your razor blade instead of your axe, and have the confidence to know when to sit down.

Control yourself. The adrenaline is pumping and you want to show the defendant you’re the boss. You are in dangerous territory for two reasons: 1) You risk damaging your case if you let emotions dictate your questions. 2) You risk creating sympathy for the defendant if you are too quick to attack. Before the defendant takes the stand, knock out a quick 60 seconds of physical activity to burn off extra energy. A few flights of stairs in four-inch heels takes care of that for me. Find what works for you.

Control the witness. Let’s be clear—sarcasm and screaming are not options. Lawyers control witnesses with the form of their questions. Ask short, leading questions that include only one fact. Resist the urge to ask the conclusion question—which the defendant will never agree with, and which may allow him to explain everything away. Save that conclusion for closing argument, when his only option is to write angry notes to his counsel. Make small cuts instead of large hacks: locking down testimony inconsistent with other evidence, gaining helpful concessions to what he thinks are unimportant facts, and impeaching when necessary.

Consider your approach carefully. The jury is dying to hear what the defendant has to say, but don’t forget you are center stage as well. Jurors notice and scrutinize every angle of your performance: “Her voice gets higher when she’s angry.” “She’s not giving him a chance to explain.” “She’s wearing her glasses today to try to intimidate him.” (True story, by the way, on the glasses. Despite the perceived drama with my decision to don spectacles, I had actually just torn a contact and, due to a poor packing job, had no back-up.) Above I told you what jurors expect from a prosecutor. That doesn’t mean they will approve. Defendants are like any other witness. Tailor your approach to the demeanor of the defendant. You’ll likely need a combination of tough, fair, and even charming. You don’t lose points for being nice to someone accused of a crime. You are just a professional doing your job.

Stop once when you’ve made your points. If cross is going well, this may be the most difficult part. It’s especially true if the defendant’s direct examination has gone on for hours or even days. Do not respond in kind. Get in, get out, and sit down. Trust me—the jury will thank you.

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NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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