Dean Coronel Trial Practice Techniques

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5.9 Special Problems on Cross

The goal

The goal of the of the opposing witnesses is opposing witnesses is to defeat to defeat the purposes of the purposes of your cross-examinayour cross-examination. Sotion. So it’s important to be familiar with their nature and how to deal with them.

it’s important to be familiar with their nature and how to deal with them.

Rehearsed Witnesses

-- They hThey have a ave a wellwell-re-rehearhearsed tesed testimostimony thany that is cat is carefrefully pully prereparpared by thed by the oppoe opposingsing counsel, prosecutor or the

counsel, prosecutor or the police.police. Y

Your G!" # our G!" # $rove $rove that his storthat his story is pry is pre-fabricated e-fabricated and unworthy and unworthy of court%s belieof court%s belieff.. Y

You have to look for CLou have to look for CLUS likeUS like##

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 &emori'ed details&emori'ed details

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 (ould )T ordinarily be remembered(ould )T ordinarily be remembered

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 (ould normally be recalled(ould normally be recalled

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 *erbatim repetition +especially applicable on a young witness*erbatim repetition +especially applicable on a young witness

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 se of unnatural vocabularyse of unnatural vocabulary

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 T Too similar oo similar testimonies atestimonies among witnessesmong witnesses

!ction Plan !ction Plan##

n/uire whom the witness tal0ed to

n/uire whom the witness tal0ed to before testifyingbefore testifying. 1ow . 1ow many conversationsmany conversations too0 place2 (ho were present during the conversations2

too0 place2 (ho were present during the conversations2

•

"plainin# and !r#uin# Witnesses

-- They They alwaalways wys want tant to exo expound pound on evon every pery point aoint and arnd argue wgue with yith you on ou on evereverythinything.g. Y

Your G!" # our G!" # 3ontrol the 3ontrol the witness.witness. Y

You often see themou often see them##

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 !rguing with you on every /uestion!rguing with you on every /uestion

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 !nswer your /uestions with /uestions!nswer your /uestions with /uestions !ction Plan

!ction Plan## i.

i. !s!s0 0 papartrticicululararly ly anand d coconcncisiselelyy ii

ii.. 3u3ut ht him im o4 o4 wiwith th yoyour ur nenext xt /u/uesestitionon iii

iii.. !s0 f!s0 for couor court’rt’s asss assististancance to stre to stri0i0e out the out the unie unimpomportartant pant part of hirt of his tess testimtimonyony55 admonish him to give a responsive answer

admonish him to give a responsive answer

vasive Witnesses

-- TheThey had no di6cuy had no di6culty anlty answeswerinring durig during the dirng the directect-e-exaxaminminatiation but theon but they becomy becomee evasive on cross-examination

evasive on cross-examination Y

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$o% evasive %itnesses behave#

 7epeat your /uestions

 !nswer /uestions slowly

 !lways respond with, 8 don’t 0now,’ 8 can’t remember,’ etc. !ction Plan&

i. 9on’t s/uee'e out better answers from them

ii. :xtract as many  don’t 0now,’ 8 can’t remember,’ answers iii. 9emand clear and direct answers

iv. 7apidly ;re /uestion

v. !s0 <udge to instruct him to answer directly

vi. Give him the =inal >low by emphasi'ing on his evasiveness vii. 9ismiss him summarily

Positive Witnesses

- They always ma0e positive testimonies through a6rmative declaration of facts. $o% evasive %itnesses behave#

 7efuse to ma0e any statement other than in positive terms !ction Plan&

i. :ncourage them to ma0e positive statements on matters where there can be no positive

ii. nduce contradictory statements.

Stubborn Witnesses

- They are always hostile towards you and ;rm on their stand. '%o '(pes#

 1e holds bac0 facts

 1e ta0es a position and refuses to retreat !ction Plan&

i. !s0 a few /uestions until you get what you need ii. &a0e his position appear ridiculous

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Contrar( or Unrul( Witnesses

- They harbor deep hostility toward your client. Your G!" # mpeach his credibility.

!ction Plan&

i. Turn the the hostility toward your client against you ii. 9o not /uarrel with him

iii. !s0 the court to warn him to behave

)denti*cation Witnesses

- 1e always positively identi;es the accused.

Your G!" # 9emonstrate that courtroom identi;cation as worthless.

What to e"pect#

 They impress sincerity, honesty and con;dence to the court

!ction Plan#

i. $oint out that identi;cation was prepared because of the obvious courtroom position of the accused

ii. $oint out con?icts and discrepancies on the testimonies of several witnesses iii. :stablish ?aws in the identi;cation of the witness

◦ $oor memory

◦ $hotographed image shown to the witness was impressed on his mind ◦ !bsence of 8police lineup’ or ?aws thereof

◦ n?uence of news from T*, radio and newspapers ◦ $olice’s n?uence

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- 1e attests to the intoxication of the accused at the time the crime was committed.

Your G!" # 9iscredit the witness licit the follo%in#&

 =amiliarity with the accused

 @nowledge of intoxication

 $resence at the time of drin0ing !ction Plan&

i. $rove he does not 0now the accused too well

ii. $rove he does not 0now enough about intoxication iii. $rove he himself might be intoxicated

Witness to defendant+s confession

Your G!" # $rove that waiver of rights was not done with full grasp of the facts and e4ects

'he !pproach&

 n/uiry on all the circumstances surrounding the confession !ction Plan&

i. $rove that he was not advised of his rights

ii.

$rove that accused was forced to admitting

,er( old or (oun# %itnesses

- They have the court’s sympathy. Your G!" # $rove that he was coached

'he '%o '(pes&

 7ehearsed child

 1e was coached by the parents or counsel repeatedly

 7espected elderly

 1e ma0es silly remar0s at times but never ma0e fun of him !ction Plan&

i. bAect to child’s testimony

◦ f the counsel fails to lay the predicate

ii. Show the child’s approval of 8white lies’

◦ "ead him to a line of /uestioning that reveals his approval of saying

untruthful statements in certain circumstances

iii. Show the di4erence between rehearsed and the unrehearsed parts

◦ >egin by as0ing unimportant matters until he gains con;dence

◦ Then probe on unexpected matters that reveal the memori'ed parts of

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iv. "ead the child to exaggeration

◦ se his imagination to elicit a ridiculous testimony

v. Treat older persons tenderly

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•

-emale Witness

- She appeals to the emotion.

Your G!" # Get direct answers $o% she behaves&

 She becomes highly emotional, angry or upset

!ction Plan&

i. 9on’t be condescending or solicitous

◦ )ever alter your manner despite her emotions

ii. 7emain unmoved

◦ She becomes surprised or hopeless when she sees your stoic

reAection, thus, susceptible to penetration iii. se her emotions to elicit answers

◦ 3ounter her evasiveness with continuous /uestioning until you get

direct answers

•

WitnessComplainants to se" crimes

- She’s more emotional than an ordinary female witness. Your G!" # $rove that accused is the 8wronged’ party

'%o '(pes&

 ne who tries to bra'en her way out of the compromising situation

 ne who see0s revenge

◦ She may have been reAected by the accused

◦ She may be vengeful of all men, not Aust the accused

!ction Plan&

i. $rove lac0 of force

◦ 7elationship with the accused

◦ !bsence of physical indication of force

ii. $rove presence of opportunity to escape

◦ Stress the opportunity of resistance or outcry

iii. $rove that complaint is an afterthought

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•

Police /0cers and /0cials

- They determine the motive behind your /uestions before they answer Your G!" # mpress the court by showing inconsistencies in the investigation .

'he nature of a Police /0cer Witness&

 They are careless of the form and manner of statements made to them

!ction Plan&

i. =amiliari'e yourself with criminal investigations ii. Taint the credibility of the investigation

iii. se the <ump-!round Techni/ue

◦ 7apid /uestioning

iv. 3ontrol the parameters of their testimony

◦ =ocus what they failed to see or do

◦ !void disclosure of your client’s previous criminal records

•

Stool Pi#eon!ccomplice1Witness

Your G!" # 9iscredit the witness. 2ive emphasis on&

 9ates

 $laces

 Stories

!ction Plan&

i. 9evelop the circumstances around defendant’s implication by the witness

◦ Show contradictory statements

ii. $rove the wea0ness of defendant and accomplice’s relationship

•

"pert Witness

- !n expert from a speci;c ;eld or a courtroom veteran Your G!" # $rove his inability, bias or pecuniary interest

Preparation for the Cross&

 !s0 assistance from your own expert witness in p reparing your /uestions

◦ >efore trial, dissect the reports made by the expert witness

 nvestigate on the methods he used in performing tests, etc.

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!ction Plan&

i. !s0 direct /uestions

◦ 9o not allow him to expand on his remar0s

ii. $rove that he deviated from the customary practice or principles on his ;eld

◦ Show contrary statement from another expert in his ;eld

iii. $rove that he is a Bprofessional witnessC

◦ ne who gets paid by the government or the complainant

•

3edico1Le#al "pert Witness

- $articularly vital in homicide cases

Your G!" # $rove that autopsy did not exactly ascertain the time of death Preparation&

 =amiliari'e yourself with tests ta0en during the autopsy

◦ 7ectal thermometer test ◦ $ost-mortem staining ◦ 7igor mortis

!ction Plan&

Show the failure of considering other factors in ta0ing the tests

•

$onest Witness

Your G!" # Show errors on Audgment or observation, and his natural bias !ction Plan&

i. Test his memory

ii. Show lac0 of opportunity for observation iii. Show his natural bias in distorting facts

•

4iased Witness

- 1is desire is to hurt the defendant by stressing on the damaging parts of his testimony

Your G!" # se his vindictive attitude to elicit answers favorable to defendant ature of the Witness&

 Stresses on parts of his testimony that he believes to be most damaging

!ction Plan&

i. Show his ill feeling and animosity against defendant ii. Show that it’s a rehearsed testimony

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◦ !s0 how many conferences he had with other witnesses and

prosecutor

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Witness %ith a Criminal Record

- ne who was convicted of a previous crime

Your G!" # Go to the circumstances of the crime he committed !ction Plan&

i. "et him describe his criminal acts

◦ Subpoena 3ler0 of 3ourt that rendered conviction along with the

records if he denies conviction

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)lliterate Witness

Your G!" # :licit favorable testimony

'he !pproach to%ards this kind of %itness&

 >e gentle and help him along

!ction Plan&

i. "ead his to answers favorable to your case

ii. f he remains hostile, lead him to a total confusion

◦ !s0 on collateral matters

•

Weak and Unsure Witness

- f hard-pressed, he will change his testimony Your G!" # Gain his con;dence

!ction Plan&

>e friendly but ;rm

◦ 1e might volunteer the testimony you are see0ing •

Conceited6 -lippant6 4lusterin# Witness

- !n all-0nowing witness who destroys himself Your G!" # "ead him to a trap and attac0 him ;ercely

!ction Plan&

i. :ncourage his egotistical attitude

◦ )ever lose your temper

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ii. "ead him to ridiculous exaggeration

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Witness %ho avoided Pre1'rial )nterro#ation

- ne who refused to tal0 to you or to any of your representatives Your G!" # $rove that he has something to hide

Caution&

 The witness should appear to be under control and suspicious

!ction Plan&

i. !s0 him why he refused to tal0 to your representatives ii. Show his animosity with the defendant

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5.78. !pparent: Cross1"amination

• !lthough not re/uired, the Audge will still expect cross-examination

• (hen there seems to be no realistic expectation of eliciting favorable admissions,

you conduct the BapparentC cross-examination by examining witnesses on collateral points

o (ho as0ed him to be a witness2 o (as he subpoenaed2

o (ho tal0ed to him about the case2 o 1as he read any materials to prepare2

o 9oes he have any ;nancial or business interest on the case2 o 9oes he 0now any of the parties2

• !t least plant a doubt on the Audge rather than allowing him to blindly accept the

testimony

• se the cross to get your version of the facts

5.77. 'he Problem of the /pposin# Counsel

• )f he kno%s: /b;ections

 !n improper interAection of the opposing counsel to coach the witness

 bAect forcefully and as0 the Audge to direct the opponent to desist

Clari*cation Re<uests:

!n e4ort to interrupt your ?ow of cross and cue the witness that his answer was not so good

bAect to clari;cations and emphasi'e that it can be made during redirect

/b;ection Speeches

bAections should only state 8legal basis’ for obAection and not lengthy statements $oint this out to the Audge

=. "amination of "pert Witnesses

• 7ule DEF, Sec. E, 7evised 7ules of 3ourt

 ! witness can testify only to those facts which he 0nows of his personal 0nowledge5 that is, which are derived from his own perception, except as otherwise provided in these rules.

• :xceptions +pinion :vidence#

 ! lay witness on certain opinions +Sec. HF, 7ule DEF

 :xpert witness on his area of expertise +Sec. HF, 7ule DEF =.7 When !dmissible

"pert 'estimon( +as discussed earlier La(men+s /pinion

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 n regard to common transactions of life at the time of occurrence and cannot be reproduced

 pinion of witness can be had on#

◦ the identity of a person about whom he has ade/uate 0nowledge5

◦ ! handwriting with which he has su6cient familiarity5 and

◦ The mental sanity of a person with whom he is su6ciently ac/uainted.

◦ The witness may also testify on his impressions of the emotion, behavior, condition

or appearance of a person. +Sec. HF, 7ule DEF

Purpose of 'estimon(

• 7ender an opinion based on ;rst-hand 0nowledge • n facts supplied by others

• n a matter of abstract scienti;c principle relevant to the case without considering facts of the case

• n a fact as opposed to an opinion which he observed through speciali'ed 0nowledgeItechni/ue

>e*nition and ?uali*cations

• ne who possesses s0ills, 0nowledge, learning or experience necessary to ma0e his

opinion helpful to the trier of fact in his search for truth

◦ S v Gil DE $hil HEF # !n expert is one possessing in regard to a particular obAect or

department of human activity, 0nowledge not usually ac/uired by other persons. Scienti;c study and training are not always essential to the competency of a witness as an expert.

◦ 9ilag J 3o. *s &erced +KH G HHE # Special 0nowledge or s0ill may be ac/uired not

only by formal learning but by study and experience

◦ 9irilo vs 7operos +LL G LK # 3ourt did not allow to testify as an expert on

handwriting a government district auditor who had not made any special study of chirography and is not s0illed in this art

>iscretion of 'rial @ud#e

• ! ;nding of the Audge of witness’s /uali;cation or dis/uali;cation as an expert is not normally disturbed on appeal except when there’s D_{grave abuse of discretion or a} L_{serious mista0e}

◦ 3amerino vs Gon'ales +3!-G7. )o. DMHM-7 # 3! ruled that courts may accept or

refuse admission of an expert’s testimony, believe or disbelieve such. >ut party has the right to o4er expert testimony and it cannot be curtailed.

◦ &asongsong vs nate +3!-G7. )o. DMD-7 # (hen party is too poor to pay fees for

handwriting expert, courts can re/uire )> to ma0e such examination. Rule on !dmissibilit( of "pert 'estimon(

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• SubAect of his opinion must be so related to a speciali'ed ;eld of 0nowledge that inference by experts are beyond the ability of an average person

• 1e must be shown to possess 0nowledge, s0ill and experience

• Testimony must be relevant to the matter in issue

◦ $aras vs )arciso +EH $hil LKK # 3ourts are not bound by expert testimonies on matters

within the general 0nowledge of Audges

"pert /pinion cannot prevail over -acts dul( stablished in vidence

◦ $eople vs 9umlao +DLH S37! NLD # 9octor’s testimony as to how wounds were in?icted

cannot prevail over testimonies of witnesses who actually saw the incident. /ther )mportant 3atters

• The court should preliminarily determine the competency of a witness o4ered as an expert by

D_{examination through proponent and opposing counsel andIor} L_{expert’s own opinion as to his}

/uali;cations

• !fter accepting him as an expert, he is still vulnerable to attac0s for wea0ness in his /uali;cations

• t is not necessary that he be infallible

• :xplain the nature of the expert’s specialty and experience

• 3ounsel may waive the /uali;cation of the expert witness but there may be motives behind it

• nformation from statements of others given outside the court is not admissible

• Testimonies must be susceptible of reasonable accurate conclusions not possibility

• 3ourt cannot accept testimonies on ultimate facts or /uestions of law which are within the court’s turf

• :xpert opinions are not conclusive but generally advisory upon the courts

• :xpert opinion may be disregarded by court if contrary to common sense or 0nowledge, undisputed facts or physical laws