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CROSS EXAMINATION

John A. Lentine, SHEFFIELD & LENTINE, P.C. Suite 301, 600 20 th Street North, Birmingham, AL., 35203 205-328-1365 john@sheffieldlentine.com. CROSS EXAMINATION. WE ALL WANT TO BE THIS KIND OF CROSS EXAMINER. And cross like this…. And leave them like this….

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CROSS EXAMINATION

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  1. John A. Lentine, SHEFFIELD & LENTINE, P.C. Suite 301, 600 20th Street North, Birmingham, AL., 35203 205-328-1365 john@sheffieldlentine.com CROSS EXAMINATION

  2. WE ALL WANT TO BE THIS KIND OF CROSS EXAMINER

  3. And cross like this…..

  4. And leave them like this…..

  5. But many times we end up looking like….

  6. “In cross examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.”LOUIS NIZER

  7. THE MOST IMPORTANT THING TO REMEMBER ABOUT CROSS!

  8. What is the “Harm” • Cross without a THEORY OF THE CASE • Cross without a THEORY OF THE WITNESS • Cross without a GOAL towards the T of C • Cross without STRUCTURE (Chaptering) • Cross without PURPOSE – Beating the dead horse or not leaving a tender moment alone • Cross without EFFECTIVE LANGUAGE • Cross with TAG LINES & QUALIFIERS • CROSS WITHOUT CONTROL!

  9. “He who controls the present, controls the past. He who controls the past controls the future.” – George Orwell

  10. THE LAW OF CROSS IN ALABAMA Article I, Section 6 of the Alabama Constitution – Constitutional right of Confrontation Section 12-21-137 (Code of Alabama) –Right of Thorough and Sifting cross examination Rule 611(b) (Ala.R.Evid)- Scope of cross examination Case Law – Cross is a fundamental right (Ball v. State, 337 So.2d 31 (Ala.Crim.App. 1976), wide ranging (Colstonv. State, 325 So.2d 520 (Ala.Crim.App. 1975), not limited to matters brought out on direct, (Arthur v. State, 472 So.2d 650 (Ala.Crim.App. 1984) and right of cross examination will be jealously guarded by the appellate court (Reeves v. State, 32 So.2d 53 (Ala.Crim.App. 1983)

  11. When to CROSS?? • When it ADVANCES the THEORY OF THE CASE • Regardless if you label it • CONSTRUCTIVE OR • DESTRUCTIVE • IF IT DOES NEITHER, THEN • NO CROSS CAN SOMETIMES BE THE BEST CROSS

  12. THE THEORY OF THE CASE • What this case is about • Answers the overriding question? WHY!!?? • A single persuasive common sense story that encompasses the facts, law and emotion of your client’s innocence or lack of guilt • Can be of your client’s lesser responsibility • T of C depends on the facts, the law, the emotion of the case and is unique to each case.

  13. PREPARATION • Where does the witness fit in your OVERALL T of C? • What is needed from the witness in cross that advances that T of C? • What is your Theory of this Witness that you want jury to adopt (i.e. biased, lying, mistaken, incompetent, etc.) • Is the cross DESTRUCTIVE? CONSTRUCTIVE? OR BOTH? • Set up the each CHAPTER of the cross with the HEADLINES of each CHAPTER FOR TRANSITION from one to the other • But leave room for the GOLDEN NUGGETS that appear from direct (NEVER HEARD THAT BEFORE)

  14. GOAL OF CROSS • To ADVANCE your T of C BY • Crossing in logical (common sense) progression to a specific goal that fits within your Theory of the Case and of the witness • ACCOMPLISHED BY FOLLOWING THREE RULES

  15. THE THREE RULES OF CROSS EXAMINATION • LEAD • ONLY 1 NEW FACT PER • CROSS FROM GENERAL TO SPECIFIC – Organized in chapters leading to specific goal

  16. RULE #1 - LEAD • NO open ended Qs • NO WHO, WHAT, WHERE,WHEN ,WHY, HOW OR DID • In fact NO Q’s at ALL! • NO Tag lines or qualifiers in the front end (Good morning, I will be you cross examiner) or the back end (isn't that correct, isn't that true, correct) • SHORT • STATEMENT (All about the inflection!)

  17. RULE # 2 – ONLY 1 NEW FACT PER • Start by practicing 1 fact per • Then add 1 new fact to the next • Don’t overload with facts because guaranteed to lose control • THINK…….

  18. WWSD! WHAT WOULD SHELDON DO!!??

  19. Basic Cross Formula(S (1FP) + S = C)Advanced Cross Formula(S (1NFP) + S = C)

  20. RULE #3 – GENERAL TO SPECIFIC – ORGANIZED GOAL

  21. WHAT IS A CHAPTER? GOAL ORIENTED SECTIONS WITHIN THE OVERALL CROSS DESIGNED TO ESTABLISH ONE OR PARTICULAR POINT(S) USEFUL TO YOUR THEORY OF THE CASE!!!!

  22. WHAT IS CHAPTERING THE CROSS? • THE PROCESS OF DEVELOPING YOUR STRATEGY TO MAKE YOUR THEORY ACCEPTABLE TO THE JURY! • REGAINING OUR COMMON SENSE by PUSHING BEYOND THE DISCOVERY – about who the witness is and what actually happened • THEORY VS STRATEGY • THEORY IS THE STORY OF INNOCENCE THAT TELLS EVERYONE WHY I WIN • STRATEGY IS WHAT I AM GOING TO DO TO MAKE IT AS EASY AS POSSIBLE FOR EVERYONE ELSE TO AGREE WITH MY THEORY SO I DO WIN

  23. HOW TO CHAPTER • Diagram/Flow chart what you want and how you want the witness to be seen within the story you are telling • Think about the story you are telling (structure) and the arc of the story with each witness (moving the witness from one situation to another within the story • Be sure to SOURCE the facts for each witness’ cross

  24. SOURCING • A Source is where the fact comes from • Witness’ statement, police reports, deposition, etc. • Allows you to access it immediately for use if necessary • Create a system or code for each source within your cross notes such as Witness A – Chapter – No mention of WHATEVER • DEP. PG 10, LINES 12-15

  25. ABBREVIATED EXAMPLES OF CHAPTERS • TITLE – WANDA VEGA -The SNITCH: • CHAPTER - PRIOR – sub chapters -Convictions/incarcerations, prison life/never again • CHAPTER - her new charge(s) sub chapters –how many, specific type of offense • CHAPTER - Punishment(s) Ranges for new charge(s) – sub chapters prison again, long time, no probation, no parole, no going home • CHAPTER – The ARRANGEMENT – sub chapters – lower or no sentence, decided by AUSA, to file or not, not up to Judge, not up to Jury, etc. • And the CHAPTER ON THE FLY!!

  26. LANGUAGE/RULES OF CROSS- 1 MORE TIME! • SHORT (Very short, only……..) • 1 FACT PER (Fact not Argument) or 1 NEW FACT PER + • STATEMENT (Not questions, don’t ask questions) = • CONTROL • GENERAL TO THE SPECIFIC – Logical progression to the specific goal(s) • Simple words not subject to interpretation • Use HEADLINES or CHAPTER TITLE • Dump intros and tag line endings

  27. “ the OLD & BUSTED METHOD ”“After the robbery you saw the robber get into the passenger side of a blue 2 door Honda Accord and speed away, isn't that correct?

  28. THE “NEW HOTNESS” METHOD • PREFACE of CHAPTER – “I’m going to ask you some questions about what you saw after the robbery, understand. • You saw the robber. • He got into a car. • He got in the passenger side of a car. • The car he got into the passenger side of was a Honda accord. • Blue. • And it sped away.

  29. PRACTICING THE TECHNIQUE • PRACTICE cross techniques with….. • EVERYONE (Family, friends, partners…) • ANY PLACE • ANY TIME • REMEMBER……………

  30. THE DO’S Know what you want and need in the cross LEAD, short 1 fact per Think GENERAL to the SPECIFIC CHAPTERs LABEL your witness Make your points and get out (think STEATH) Have a specific goal or purpose THE DON’TS We don't Rehash direct We don’t beat a dead horse (BILLY JOEL) We don’t ask open ended questions (loss of control) Don’t cross without a purpose or goal If takes more than 5 seconds to ask its lousy if it takes longer its even worse Maintain control FORM & SUBSTANCE

  31. LOOPING • THROUGH A LEADING QUESTION ESTABLISH A DESIRED FACT OR PHRASE • USE THE FACT OR PHRASE ESTABLISHED WITHIN THE BODY OF A SUCCEEDING QUESTION WITH RE-ASKING THE FACT. • BE CAREFUL TO CONNECT THE LOOPED FACT OR PHRASE WITH A QUESTION THAT CONTAINS AN UNDISPUTED FACT

  32. TWO WARNINGS! • LISTEN CAREFULLY/CLOSELY • AND.. • LOOP ONLY THOSE WORDS OR PHRASES THAT ARE HELPFUL BY ADVANCING THE THEORY OF THE WITNESS AND/OR THE CASE

  33. YOU SAW THE ROBBER • THE ROBBER HAD A MASK • THE MASKED ROBBER RAN AWAY • Or • YOU SAW THE ROBBER • YOU SAW THE ROBBER FOR A FEW SECONDS • THE ROBBER YOU SAW FOR A FEW SECONDS HAD ON A MASK

  34. CROSS IS LIKE……

  35. The Pitcher who CONTROLS Speed Placement Types of pitches Controls and confuses the batters and WINS DEFENSIVELY

  36. Its all about SINGLES! Don’t go for the Homerun swing Just keep making points and moving around the bases relentlessly In the end, you WIN! OFFENSIVELY

  37. DEALING WITH “WEASELS” • TIMEOUT or talk to the HAND • REPEAT it • WORD FOR WORD • THE EXACT STATEMENT • GO slow, painfully slow • Rising inflection • Use witness’ FULL name (only for FUN!) • The answer is YES • I know you want to say (or tell me) “X” but my question is actually… • Is that a question? • Ahh Yes.

  38. VERISIMILITUDE • The appearance of being true or real. The way things are.. • In terms of a witness understand and accept where the witness is EMOTIONALLY • Accept that reality • Then ask those Qs that hold that emotional center • Allows us to turn facts into things jurors can see and feel

  39. RESOURCES- THEOLOGICALLY SPEAKING CROSS EXAMINATION: SCIENCE AND TECHNIQUES by Larry S. Posner and Roger J. Dodd (Michie 1993) – The NEWER Testament MACCARTHY ON CROSS-EXAMINATION by Terence F. MacCarthy (ABA Publishing 2007) – The NEWER NEWER Testament DYNAMIC CROSS EXAMINATION by James H. McComas, (Trial Guides LLC 2011) the NEWEST Testament

  40. AND NOW THE CROSS GAME! Contestants must Cross Examine ME using the techniques just discussed. THE RULES: Only 1 FP or 1 NFP No Questions No Taglines No fact or facts that are subject to interpretation Only “Yes” answers, no “No” answers Cannot repeat a fact unless it contains a new one Go from General to the Specific in questioning Last lawyer standing is the King or Queen of Cross in Tuscaloosa!!!

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