Goal #9 Objective E

Objective E:
Without the use of the course text or class notes, the student will identify aspects of cross-examination.

Immediately following the investigator's direct testimony, defense counsel will begin cross examination.

The purpose of cross-examination

To satisfy the defense obligation to a client to test any evidence being offered

To develop facts favorable to the defense

To discredit the witness

To destroy the character of the witness, his or her story, or both

Two methods used by defense to identify favorable facts on cross examination

getting the investigator to suggest or acknowledge the likelihood of illegal behavior

by showing there were others who had a motive, were considered
suspects, and have been logically ruled out

Several approaches that defense may use to discredit an investigator

Identifying latent evidence of bias or prejudice

Testing the memory of the investigator, looking for inconsistences and contradictions

Revealing through questioning, the direct testimony to be unreasonable, and therefore of questionable credibility

Showing that the direct testimony was inaccurate, mistaken, or the result of an oversight

While being cross examined, an investigator may be asked a question that can't be answered without referring to notes or an official report. The investigator should advise the defense attorney that an answer will be contingent on "refreshing" the investigator's memory by reviewing notes or reports. The defense attorney may ask to look at the notes also and therefore, they should be neat and orderly.

Occasionally, an attorney will pick up a document and start to read from it. The defense attorney will then ask the investigator, "Did you make that statement" or something to that effect. Rather than answering the question immediately "yes" or "no," the investigator should ask for the opportunity to read the document. Sometimes the statement will have been slightly altered during the reading to discredit the witness. This controls this type of discrediting.

Occasionally, a defense attorney will attempt to demand an inappropriate "yes" or "no" answer from an investigator. In other words, neither "yes" or "no" would be a correct answer without further qualification. Rather than being intimidated and giving an inappropriate answer, it is appropriate for the investigator to appeal to the judge on the grounds the answer requires a qualification or explanation, and that a straight "yes" or "no" answer would be misleading. Unless the judge perceives the investigator to be evading the question, he will allow the witness to make his qualification. This also signals the prosecutor that this subject needs to be revisited on redirect questioning.

Finally, an investigator may be asked a question which surprises the investigator or the investigator doesn't immediately know the answer to the question. If the defense attorney senses this, he may even try to speed the pace of questioning to get into a rapid fire set of questions and answers. Again, the point is to get an inconsistent or contradictory response from the investigator. When either of these situations happen the investigator should try to slow down his answers and carefully consider each answer. There is no rule that says an investigator has to give a quick, rapid fire response. Therefore, the investigator should not be lured into this trap. Slow, deliberate answers are a key to consistent and accurate testimony.

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