The Chapter

Method of Cross
Examination
2014 Defenders Academy
Presented by Joel Leppard

The Perry Mason

Problem
o VIDEO LINK:
http://www.youtube.com/watch?v=AQV9sLDYhBw
(Skip to 6 mins)
o The Perry Mason Moment
perils of trying to get your Perry Mason Moment
o Problems:
1) Results in one question too many
2) Asks questions dont know answer to
3) Arguing with the witness
3) 4) Allows witness to run away or explain
o Solution: Defining goals through Chapter Method

Learning Goals
Understand and Demonstrate the Chapter Method of
Cross Examination
Understand Other Important Cross Examination
Tactics
Understand and Demonstrate Basic Impeachment
Techniques
Be Exposed to Additional Resources

Purpose Driven Cross

. Cross X must elicit facts that either:
o a. advance our defense theory, or
o b. Undermine/discredit the prosecutions evidence

Goal Based Cross Examination through

Pozners Chapter Method
Break cross examination into separate and
definable goals
Think about goals you want to accomplish prior to
examination
Benefit:
o Easy for jury to follow
Organization invites attention
o Signals to judge where examiner is going (allow them to continue)

Identify Any One Single Factual Goal to

Be Achieved by Cross
Think about what you want to argue in closing,
then work back
o Can be as big or as little as necessary

Start with what you want to argue in

closingwork backwods

o
o
o
o

Examples: that the perpetrator had a goatee

LEO didnt actually witness the agg battery
demonstrate that witness doesnt like client
Demonstrate lack of investigation by LEO
Pin down LEO to prior statement
Establish that client shows no signs of impairment
during exit sequence of DUI:

Draft a SINGLE Chapter That Covers Those

Facts Leading to the Factual Goal
Third Party Witness to Battery:
o

the witness did not have a good opportunity to observe the

robber (it was nighttime, the lighting was poor, and the
witness did not have his glasses)

o b. the witness dislikes our client because our client slept

with his girlfriend
o c. the witness has a pending drug charge that he hopes to
have dismissed by the prosecutor in exchange for his
testimony

Start very general the

move to more specific
W will agree to general issue, before specific
The more difficult the witness, (LEOs,
experts), the more general, need to start

Example
s

Arrived on scene at 11PM?

There was a physical fight
going on?
People were there?

People gathered around the

fist fight?
Had to walk through people to
get to the fight?
Some people were between
you and the fight?
oThen move on to establish
next pointe.g., that it was
dark out

Ultimate Facts:
Question Too Many:
You couldnt see the fight
very well, could you?

Chapter: W Doesnt Like Client/Bias

In June 2008 you were seeing a woman?

Her name was Rhonda?
You had been together for three years?
You spent a lot of time together?
You traveled together?
You even took a trip to Paris together?
The two of you talked about marriage?
And you talked about raising a family together?
You loved her?
You trusted her?
she broke that trust?
in June 2008?
You found out she was unfaithful?
She was sleeping with another man?
You learned it was Mr. Client?
ULTIMATE FACT: WITNESS DOESNT LIKE CLIENT, IS BIASED

Bias Skills
Demonstration
Ultimate Fact Incomplete Investigation
SCENARIO:

Organization
1) consider primacy and recency,

Sandwich the necessary boring stuff in the middle

Get your good points in at the beginning and the end
Sometimes you get a gift, need to know when to bail

2) the chapters should be organized to tell a

coherent and persuasive story whenever possible.

Organization:
Transition between chapters using
headlines

I want to take you to the night of June 23rd

I want to talk to you about Jimmy White
Lets talk about X
DO NOT JUMP AROUND IN A HAPHAZARD FASHION
o BUT ALSO LISTEN

Leading Questionsthe
Yes Method
Leading questions
o 90.612(3): Ordinarily, leading questions should be permitted on
cross-examination.
o Leading question = a question that suggests the answer

Statements v. Questions
o Want to DECLARE an answer

Keep it simple
o One fact per question
o Avoid compound questions
o Build up your point using a series of questions
EXAMPLE next page

Leading Questionsthe
Yes Method
Why?
o Train the puppy: the questions put the witness in a yes mode
o Build credibility with the jury
o Tell the jury the story you want them to hear (and not the story
according to the witness)
Ex: DUI Arrest Sequence
o You then proceeded to arrest my client?
o You put him in handcuffs?
o He didn't resist you?
o He didn't run?
o didn't fight?
o didn't use profanity?
o He walked to your patrol car under his own power?

Leading Questionsthe
Yes Method
How?
o
o
o
o

Stick to facts, not opinions

Use positive rather than negative statements
Avoid conclusive statements
Avoid arguments
Examples: (think of chapter method)
Good:
o You were over 25 feet away?
o There were 5 aisles between yourself and Mr. Client?
o Each aisle is 5 feet high?
o Lots of customers around?
Bad
o You couldnt see Mr. Client very well?

Controlling the
Nonresponsive Witness
Vast majority of your cross examinations will be of LEOs
o Non-responsive, evasive, partially honest if you let them

What you should do

o Ask, Repeat, Repeat
Example:
o PD: You never asked Mr. Client when had his last drink?
o LEO: I didnt have to, he had a strong odor of the impurities of alcohol
and said he had three drinks?
o PD: (slowly)
Until W answers the question

Use Sir or Maam

My Question Was . . .
That Didnt Answer My Question, Did It? (careful,
confrontational)
Eye Contact

Evasive Witness:
Lawyer: Cigarette smoke can cause bloodshot eyes?
Cop: Thats not why your client had bloodshot eyes.
Lawyer (repeating with emphasis): Cigarette smoke
can cause bloodshot eyes, correct?
Cop: A lot of things can cause bloodshot eyes.
Intoxication can cause bloodshot eyes.
Lawyer (repeating with emphasis and nodding
head): So your answer is yes. Cigarette smoke can
cause bloodshot eyes?
Cop: Yes.

Controlling the Witness

o Eye contact
o KISS
Shorten the question
Only Yes or No Answers
o Know the facts
o Use the Court to instruct witness to answer only the
question
But be careful
o Object & move to strike
o Butter up the Witness by talking before hand
USE EVASIVE WITNESS ARGUMENT IN CLOSING

Lets Practice DUI Exit Sequence Cross

Break up in Pairs. One person is Cross
Examiner, Other is Officer.
Scenario: DUI officer pulls client over for
speeding, smells odor of the impurities of
alcohol and bloodshot and glassy eyes, has
slurred speech and client admits to drinking
two beers. Client provides ID and registration.
Client agrees to perform field sobriety exercises
on the side of the road. Assume that if not stated
here, Mr. Client performed requested task
normally.
Goal: Show lack of impairment during stop/exit
sequence?
o Think of EVERY minute possible thing that client needs to accomplish to
stop/talk to officer/exit vehicle/walk to roadside. Make up your facts.
o Think of every possible BAD thing that he didnt do.

Pin Down to Report

EXAMPLE
Demonstrates
o Leading / Yes Train
o One Fact Per Question

Lays Groundwork for Negative Impeachment

Pin down Example

Youre a Police officer in Florida?

You Received Police Academy Training?
Part of the training is in how to write a proper police report?
you learned to write a report both fully?
and accurately?
you learned to write down all the facts that are relevant?
All important facts?
Relied on by prosecutor and judge?
And You fulfilled your duties as a certified police officer by
completing a full and accurate police report in this case? ?
And you completed this report right after the investigation,
right?
When it was fresh on your mind?
o CAN ADD MORE OR TAKE SOME AWAY
o Also can be used in conjunction with negative impeachment

Control - Additional Tips

for Cross-X
Do not pursue cross-x beyond your
chosen points

Build your ammunition for your closing argument

Use a Shotgun during Pretrial/Depo, but Use a Sniper

Rifle During Cross
Once you accomplish what you need, youre done

Dont repeat what Witness Said On

Direct
HYPOS: Mr. Wally Witness, you previously testified
that you saw my client, Mr. Defendant, repeatedly
and viciously stab Ms. Vicky?
o Whats wrong with this?

 B. Stretch-out Technique
Witness situation: The witness will or must admit a
point for you
and this point needs emphasis during crossexamination.
Execution: Take the point which could be made with
one question
(i.e., that the rape victim told no one around about the
attack) and stretch the point into a number of questions
bringing admissions which all make the same point with
increasing emphasis (i.e., question as to each person or
group she saw to which she did not complain).

Things not Done/Seen, Cross-Examination

Witness situation: Witness is an investigating
detective, police officer, or expert.
Execution: Make a list of scientific tests,
investigative leads, things would have witnessed
etc.,
that should have been done or followed up in
proper investigation that the jury rightfully
expects. As to the things not done, go down the
list getting admission after admission of the
failures to do a proper job.

Tips
Always list LEOs and State Ws so you can recall
them if you miss something on first cross

 Self-Serving Hearsay & The Rule of Completeness

Additional Video
Materials
National Association of Criminal Defense Lawyers
Stars of Cross- Examination Full length DVDs
Download links here:
(Large file size FYI 500MB- 10 GB)

Additional Reading
Materials
Pozner on Cross Examination (96 pg NACDOL
booklet)
Chapter Method of Cross Examination Pozner
(36 pgs)
Younger on Cross- 10 Commandments (printed
out)
LINK:

Impeachment
Issues

What is Impeachment?
Authorized by Fla. Stat. s. 90.608:
Any party may impeach the credibility of a witness through:
o Prior inconsistent statements, (more on this later)
o Bias
Failed to show for depo It goes to bias and motive to testify for the state.
o
o

Holley v. State, 48 So.3d 916 (Fla. 4th DCA 2010).

State W has pending charges or is on probation
Yes again! This too goes to bias and motive to testify for the state.

Pending charges see Williams v. State, 1 So.3d 335 (Fla. 5th DCA 2009)
Probation- Watts v. State, 450 So.2d 265 (Fla. 2d DCA 1984).

Attacks on character (as permitted by 90.609 and 610)

Attacking witness ability/opportunity to observe, remember, or recount the
matters about which he is testifying,
Proof through other witnesses that material facts are not as described by the
witness being impeached.

Prior Inconsistent
Statements
Two Ways to do it, and many Judges do not recognize
the difference between the two-so you must!
First impeachment by extrinsic evidence (in County,
this is the most common)
Second Impeachment by prior sworn testimony that
meets definition of non-hearsay under 90.801(2)(a).
(skip)

Whats the Difference?

(briefly)

Requirements to introduce found in 90.614

(2)
Most common sources youre going to run
into?
o Police reports
o Prior sworn witness statements
o DV cases-injunctions filed by the AV
and letters shes sending your client at
the jail are fair game

You must first give the witness the change to

deny or admit having made the statement
o

Minus v. State, 901 So.2d 344 (Fla. 4th

DCA 2005)

o
o
o

Jennings v. State, 512 So.2d 169 (Fla. 1987(.

If W admits to making the prior inconsistent

statement, youre done.
If W denies making statement, you may
introduce.
Once introduced, statement is NOT in
evidence for its truth, ONLY for
impeachment purposes.

Requirements proscribed by 801(2)(a) must

be met
Most common sources youre going to run
into?

Depositions
Prior trial testimony
Prior testimony at a pre-trial hearing like on a
M2Supp

Once you have laid foundation, you may

introduce the statement without asking the
witness if they admit to having made the
statement before first.
Once you have read the statement, it is
admitted BOTH for its truth AND for
impeachment purposes.
o

Moore v. State, 452 So.2d 599 (Fla. 1984).

How to lay the

foundation

Lock the witness down on the statement to be impeached:

o Your testimony today is _____?
Establish where the PIS came from:

o
o
o
o
o
o
o
o

MAKE IT DRAMATIC- BUILD IT UP!

You wrote a statement on the night of ______.

After writing that statement, you were asked to review it
for accuracy?
Wrote it when incident just happened?
It was fresh on your mind?
After reviewing your statement, you signed it..
By signing your statement, you SWORE that all of the
information you included in that statement was truthful
and accurate.
Same oath that you took today?
In your sworn statement you said ____________,
right?

Impeachment

If the witness admits to the prior inconsistent statement, youre

done.
If they deny making it, OR do not specifically admit making it,
NOW you impeach:
o For Court and opposing Counsel, Im referring to line ___ of
Ws sworn statement dated ____.
o The witness stated Mr. Client was. OR
o The witness never
o Move on, you do NOT have to give the witness a chance to
respond.
o See Pearce v. State, 880So.2d 561 (Fla. 2004)

Briefly: Laying Foundation for

Prior Sworn Statement
Lock the witness down on the statement to be impeached:
o Your testimony today is _________?
Establish where the PIS came from:
o You recall being deposed in relation to this case on (date).
o I was there, and opposing counsel was there.
o You took an oath to tell the truth, the whole truth, and nothing but the truth,
right?
o Same oath you took today?
o For court and opposing counsel, Im referring (for our purposes since our
depos are all recorded) to the deposition of W at approximately minute ___
and ___ seconds.
o The question was asked _____, to which the W responded, ______.
Move on to your next question. You have successfully impeached the witness.
The Statement now comes in for impeachment value, but ALSO for the truth of
the original statement.
** as a matter of practice, have a CD of the depo or prior trial/hearing testimony
handy-if the witness says they dont remember saying the statement previously, or
denies making the previous statement, you are permitted to play the prior
statement to the jury as substantive evidence.
o Pugh v. State, 637 So.2d 313 (Fla. 3d DCA1994)

Impeachment by
Omission
o

Testimony which you wish to impeach must be:

In no way mentioned in a prior statement
Material to the case, and
A statement which would naturally have been
mentioned under the circumstances
surrounding the making of the original
statement
o McBean v. State, 688 So.2d 383 (Fla. 4th
DCA 1997)

Foundation for Imp. By Omission

Starts off the same as impeachment by contradiction.

Lock down statement to be impeached,
Draw attention to time, place, and person to whom statement youre
relying on was made
Build it up, especially w/ AVs and LEOs, because standard for
impeaching by omission is that under the circumstances original
statement was made, new testimony not included in original
statement was one that would naturally have been made at the time
if true.
Once youve established how important the PRIOR statement was:
o And NOWHERE in your sworn police report did you EVER
say ((whatever they said at trial youve never heard before)).
Then have McBean handy to argue because the State will almost
definitely object to improper impeachment.

Practice

Common Misconception about

Showing the Witness the Statement
You dont have to. Period. Unless the opposing party
moves the Court to order that you show the statement to
the witness Fla. Stat. 90.614(1)

What type of subjects are proper for

impeachment?
Must be material/not collateral
o Cant argue about color of Ds shoes (unless maybe ID is issue)
Rule: Must either be 1) otherwise relevant or 2) show
bias/lack of competency
o To be inconsistent, a prior statement must either
directly contradict or be materially different from the
expected testimony at trial. The inconsistency must
involve a material, significant fact rather than mere
details. Nit-picking is not permitted under the guise
of prior inconsistent statements. Pearce v. State, 880
So.2d 561 (Fla. 2004)

What type of subjects are proper for

impeachment?
Test for what is collateral:

o 1) evidence that is relevant to independently prove a

material fact at issue, OR
o 2) evidence that would discredit a witness by pointing
out bias, corruption, or lack of competency.
Lawson v. State, 651 So.2d 713 (Fla. 2d DCA 1995); Caruso
v. State, 645 So.2d 389 (Fla. 1994)

Subject to 403b balancing test

o Caruso v. State, 645 So.2d 389 (Fla. 1994)

What type of subjects are proper for

impeachment?
Say the State wants to impeach your witness bias
or ability to know what happened by talking about
say, whether or not they were drinking or on
something
o To ask about a collateral issue for the purpose of
impeachment, the proponent must have a good faith
basis, meaning they have to be able to show their
allegation is supported by some evidence.
Shimko v. State, 883 So.2d 341 (Fla. 4th DCA 2004)

Cant say You were drinking, werent you?

without some good faith basis

Issues Specific to State Witnesses

State witness fails to show up for deposition, can you bring it up on

cross?
Yes! It goes to bias and motive to testify for the state.
o Holley v. State, 48 So.3d 916 (Fla. 4th DCA 2010).

State W has pending charges against them, asking about it on cross

permissible?
Yes again! This too goes to bias and motive to testify for the state.
o Williams v. State, 1 So.3d 335 (Fla. 5th DCA 2009)

What about if State witness is on probation, same outcome?

Still yes! And for the same reason.
o Watts v. State, 450 So.2d 265 (Fla. 2d DCA 1984).

Impeachment by Prior Convictions

Rules for using are laid out under 90.610
What counts as a conviction?
o Withholds do NOT count.
o Client must have been:
Adjudicated guilty subject to a plea or Jury Verdict, AND
Sentencing must have occurred and the adjudication of guilt entered by the
Court
o State v. McFadden, 772 So.2d 1209 (Fla. 2000).

Impeachment by Prior Convictions

Who can be impeached with this?
Any witness called at trial
Any witness whose statements are offered by the
party adverse to the party seeking to introduce
the prior convictions.

o Good news, means that if a hearsay statement comes

in from a witness NOT testifying, if you have J&Ss for
that person, you can admit them for impeachment.
o Bad news, if you ask a state witness about a statement
your client made that is exculpatory, you have made
your client a witness and his convictions can now be
introduced by the state

Getting mention of prior

convictions excluded
Before your client takes the stand, or before trial if you
know clients priors are from out of county, ASK TO SEE
THE J&Ss from the State.
If the State does NOT have a J&S for the conviction(s)
they are PRECLUDED from even asking your client
about them.
o Peoples v. State, 576 So.2d 783, (789 Fla. 5th DCA 1991):
The attorney who seeks to introduce evidence of a prior conviction
should have knowledge of the prior conviction and should possess
a certified copy of the judgment of conviction.
Note in Peoples, it was the Defense seeking to introduce evidence of
a SW conviction and the STATE is the one who made that
argumentand with whom the Court agreed. Thanks ASA ;)

Excluding Prior Convictions

Remoteness (over 10 years?)
Giving you guys the motion. Its a tough sell, but the
longer between the convictions the state wants to rely on
and your case, the better your chances.

What is the State Allowed to Ask?

1) Have you ever been convicted of a felony /crime of
dishonesty?
2) How many times?
THATS IT!!
This is why you find out exactly how many J&Ss state
has for your client.

Briefly:
Self-Serving Hearsay & The Rule of Completeness
The State can then introduce evidence of prior
convictions even if your client doesnt testify
o Kelly v. State, 857 So.2d 949 (Fla. 4th DCA 2003)
Where Defense elicited additional statements Defendant made to
officer, State was allowed to introduce Defendants prior
convictions under F.S. 90.806(1) to impeach the Defendants
credibility
o Hampton v. State, 4 So.3d 789 (Fla. 4th DCA 2009)
State was allowed to introduce Defendants prior convictions to
impeach his exculpatory out-of-court statements, which were
elicited by defense counsel through another witness, to suggest
that the Defendant acted in self-defense.

Additional Tips
Email/ call/ talk to your LEOs before Motion/Trial
o Tell want to talk to them to avoid a deposition

Be Yourself

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The End