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ADVANCED TRIAL ADVOCACY

By: Atty. Rogelio A. Vinluan

Batangas City, Batangas15 October 2008

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INTRODUCTION

Cross-examination in the words of Wigmore, “is beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

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The problem is that cross-examination is the most difficult skill for the advocate to master.

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Cross-examination is the phase of trial in which the trial advocate is least in control.

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The good news is that good or competent cross-examiners are not born; they are made.

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The art or science of cross-examination has established guidelines, identifiable techniques, and definable methods which can be learned.

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Why cross-examination is difficult:

1. Not rehearsed.

2. Two difficult decisions: (a) whether or not to cross-examine, and (b) when to stop.

3. Requires special ability to communicate with the witness.

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Cross-examination requires courtroom improviation based

on:1. Thorough knowledge of the case.

2. Mastery of the rules of evidence.

3. The testimony on direct of the witness.

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4. An outstanding memory for what the witness said during direct examination and how the witness said it.

5. The lawyer’s skills in trial advocacy.

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What is effective cross-examination?

1. One that successfully accomplishes the goals of the cross-examiner.

2. The net effect is to further the theory of the cross-examiner’s case.

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3. Scores as many useful points as possible.

4. Does not allow the witness to score any points against the cross-examiner’s case.

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The need for preparation

1. The key to a successful cross-examination is thorough preparation before trial.

2. Preparation involves a complete mastery of the facts.

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3. Preparation of a strategic plan.

4. Note all prior inconsistent statements of the witness.

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Why cross-examination is risky

1. More cases are lost through inept cross-examination.

2. It is a two-edged sword.

3. The witness is not friendly.

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What are the purpose of cross-examination

1. Elicit favorable testimony.

2. Impeach or discredit the witness or his testimony.

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Which is the more important purpose or objective?

1. The more important objective is to elicit admissions favorable to the theory of the cross-examiner.

2. The cross-examiner should always consider eliciting favorable testimony from the witness before attempting a destructive cross-examination.

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When to cross-examine?

1. You must appraise the advantages and disadvantages, and weigh the risks.

2. Ask yourself the following questions:

a. Has the witness hurt your case?

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b. Is the witness important?

c. Was the testimony of the witness credible?

d. Did the witness leave something out on direct examination that might get in if there is cross-examination?

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e. What are your realistic expectations on cross?

f. What risks do you need to take?

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What is the best style of cross-examination?

1. You should be yourself.

2. Use the style that is natural to you.

3. You should appear confident and in control.

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4. You should also be a good actor.

5. A fair and courteous manner is more effective.

6. “Be mild with the wild, shrewd with the crafty, confiding with the honest, merciful to the young, the frail, or the fearful, rough to the ruffian, and a thunderbolt to the liar.”

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Cardinal principles of cross-examination

1. The questions must be directed toward a specific goal.

2. Start and end crisply.

3. Know the probable answer to your question before you ask the question.

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4. Listen to the answer of the witness.

5. Don’t argue with witness. 6. Don’t ask one question too many.

7. Have your cross-examination establish as few basic points as possible.

8. Don’t repeat the direct examination.

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Control of the Witness

1. Control of the witness is critical.

2. The objective is to require the witness to answer only the question put to him.

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3. Control of the witness is achieved through the form and phrasing of the question:

a. Use leading questions only.

b. Ask only a single new fact per question.

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Leading questions only

1. Never use a question that is not strictly leading.

2. The question must declare the answer.

3. Avoid “soft” or open leading questions.

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Examples: 

a) “Was it cold on the night in question?”

b)  Did you see another man along with the defendant?”

c) Were you speeding down Ayala Avenue?”

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4. Avoid enemy words that give control to the witness: who, what, when, where, how, why, explain.

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What are the advantages of the leading question?

1. It limits the response requested of the witness.

2. It permits the advocate to choose his own words in describing the event or matter with which the witness is confronted.

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Examples:

Q: What did the police officer do next?

A: The police officer subdued the defendant.

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Compare to:

Q: The police officer smashed Mr. Santos across the mouth with his night stick?

A: Yes, sir.

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3. It permits the cross-examiner to choose the emotion of the answer and the facts to be stressed.

4. It permits the cross-examiner to control word selection, tone of voice, and word emphasis.

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Example:

Q: Did you put that in your report?

A: No, I didn’t.

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Compare to:

Q: Nowhere in your report did you ever mention that?

A: No, I didn’t.

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What is the meaning of “The question must declare the

answer?1. A true leading question does not merely suggest the answer, it declares the answer .

2. The leading question must be a “questment”, i.e., a question that is phrased as a statement. The question is a short declaratory statement with a question mark .

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Example:

a) How do you feel about drinking?

b) Do you like to drink?

c) You like to drink?

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One new fact per question

1. Ask a single new fact per question.

2. The purpose is to isolate the fact in dispute.

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Example:

a) See Spot?

b) See Spot run?

c) See Spot run home?

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Another example:

a) You hit him?

b) You hit him with your fists?

c) You hit him hard with your fists?

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3. If a question contains more than one fact, the cross-examiner who gets a “no” answer cannot be certain to what fact the denial applies.

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Example:

Q: You saw the red car come around the corner, and sped through the red light?

A: No.

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Compare to:

Q: You did see a car?A: Yes. Q: It was blue?A: Yes.

Q: The blue car came around the corner.A: True.

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Q: It drove through the red light?A: Yes.

Q: As it drove through the red light, it was running at around 60 miles per hour?

A: I think so.

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4. By establishing one fact at a time, the cross-examiner adds impact to the answer.

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Example: Instead of asking the witness the question: “You saw the six-foot, five-inch, 225-pound accused beat the five-foot, four-inch 145 pound victim?”, the following one-fact per question method builds up emotion and creates interest as the individual facts pile up:

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Question 1: 

Q: You saw the fight?A: Yes.

Question 2:

Q: John, the big guy, was fighting?A: Yes.

    

 

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Question 3:  Q: John was six-feet, five-inches tall?  A: Yes.

Question 4: 

Q: John is a big man?  A: Yes.     

 

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Question 5:    Q: Dave is only five-feet, four-inches?  A: Yes.

Question 6: Q: Dave is a much smaller boy?

  A: Yes.    

 

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Question 7:    Q: John weighed 225 pounds?  A: Yes.

Question 8: Q: Dave is 155 pounds?

  A: About that.   

 

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Question 9:    Q: John was a much bigger person.  A: Yes.

Question 10: Q: John was a much heavier person.

  A: Yes.   

 

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Question 11:    Q: And then John was hitting Dave?  A: Yes.

Question 12: Q: He was hitting Dave with his fists?

 A: Yes.   

 

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Question 13:    Q: He was hitting Dave in the face?  A: Yes.

Question 14:

Q: John was hitting Dave, and his fists were bloody?

  A: Yes.  

 

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Question 15:    Q: And as you watched, you saw the

blood on Dave’s face?  A: Yes.

Question 16:

Q: You saw John beating down on Dave, in the face, with his fists?

A: Yes.  

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5. One item questions facilitate comprehension, add persuasiveness, and discourage lengthy reponses.

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Example:

Q: You went into the house?A: Yes.

Q: You picked up the phone?A: Yes.

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Q: You dialed the police?A: Yes.

   Q: You told them about the two

men?A: Yes.

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Form and phrasing of questions

1. Avoid tag lines, such “Is it not a fact?”, “Is it not true?”, “Is that correct?”, etc.

2. Use questions that call for “yes” answers.

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3. Use questions that call for “no” answers in situations where you want to show that the witness has done nothing to add to the case.

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Example:

Q: Did you take the time to lift the fingerprints?

A: No.

Q: Did you take the time to draw the position of the body?

A: No.

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Q: Did you take the time to collect hair specimens?

A: No.

Q: Did you take the time to do all the standard operating procedures required by the circumstances?

A: No.

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4. Do not ask argumentative questions.

5. Avoid adjectives, conclusions or characterizations

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Example: Instead of asking the questions “Bobby was very sick, wasn’t he?”, which the witness may deny because of the characterization or conclusion that Bobby was “very sick”, the proper technique is to break down the question into its factual components, avoiding the characterization.

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Example:

Q: When you went into Bobby’s room, he was in bed, wasn’t he?

A: Yes. Q: He was shivering?A: Yes.

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Q: And he was crying?A: Yes. Q: There was perspiration on his

forehead?A: That’s right.

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Q: And you touched his cheek?A: Yes. Q: And his skin felt hot to the touch?A: Yes.

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6. Avoid sarcasm.

7. Do not ask misleading questions.

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Kinds of questions

1. In determining the kind of questioning to be used, the following are the relevant considerations:

a)   The goal the cross-examiner is pursuing; and

b) The kind of witness on the stand …

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2. Interrogatory form

This form may be used when:

a)   The answer is known;b) The answer is unknown but

meaningless;c) There is documentary

evidence that cannot be denied by the witness.

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Example:

Q: At the time of the incident at the Pegasus Karaoke Bar, were you drunk, Mr. Santos?

A: Ridiculous. It is not true.

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Example:

Q: You were alone at the time?A: That is correct.

Q: On that occasion did you pay a check that included a dozen double order of scotch?

A: That is correct … .

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3. Accusatory form

This form should be used when you want to be aggressive and dramatic :

Example:

Q: You stabbed your wife with a butcher knife?

A: Yes, the devil made me do it.

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Example:

Q: Then you shot her with a twelve-gauge shotgun?A: Yes, the devil made me do it.

Q: And then you poured gasoline on her body and burned it?

A: Yes, the devil made do it, but the lawn mower was my idea.

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4. Anticipatory form

You may use this form when you have solid evidence against the witness and he cannot run away from the questioning:

Example:Q: When the incident in the

Pegasus Karaoke Bar incident happened, you were sober, weren’t you?

A: Of course I was sober.

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Q: Mr. Santos, I understand on the night of the incident, you were alone at the bar?

A: Yes, sir, I was alone.

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Q: (After confronting Mr. Santos with a copy of the check which was paid by him): Mr.

Santos, I want to believe what you said about being sober where the incident occurred, but in your check it says the following: “Twelve double orders of Johnny Walker Black Label.” Isn’t it true that after so many drinks you were drunk.”

A: No, I wasn’t drunk. I can drink more than that and still be sober.

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More Illustrations: 

Interrogatory: “At the time of the operation, were you licensed to practice medicine?  

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Accusatory: “You weren’t even licensed to practice medicine at the time of the operation, were you?

Anticipatory: “And, of course Doctor, you were licensed to practice medicine when you performed this surgery?”

  

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How to ask the right questions

1. How you ask the question is as important as the question itself.

2. Ask your questions in a voice and manner that project confidence.

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3. The voice tone, decibel level, the gestures and body movement must be appropriate to the impression sought to be conveyed.

4. The manner the question is asked can add impact, create contexts, create a mood, and convey an attitude.

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Impeachment by prior inconsistent statement: When to

impeach and how to do it

1. You must consider whether the net effect of the witness’ testimony is favorable or unfavorable to your client.

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2. You must consider the chances of success; unsuccessful attempts are often worse than failures.

3. The proper technique of impeachment:

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a) Make the witness commit to the current version to be impeached.

The cross-examiner’s first task is to get the witness committed to the present testimony that is to be impeached.

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Q: On direct examination you told the Court today that you did not throw any beer bottle at the house?

A: Yes, that’s right. 

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Q: Now you are telling the Court that you saw the accused stab the complainant?

Q: “What are you saying as today’s truth is that you saw the accused stab the complainant?”  

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b) Accredit the circumstances of the prior statement.

1) The next step is to lay the foundation as required by Section 13, Rule 132 of

the Rules of Court.

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2) You must also demonstrate that the prior inconsistent statement was made under circumstances where the

witness had the desire and opportunity to be

accurate.

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Example:

Q: You were interviewed by the police right after the accident on January 1, 2008?

A: Yes.

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Q: And you gave the police a statement?

A: Yes. Q: The statement was tape-recorded?A: Yes.

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Q: The police likewise prepared your written statement?

A: Yes. Q: You were asked to review it

very carefully?A: Yes. 

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Q: After reading and reviewing it very carefully, you made certain handwritten corrections?

A: Yes.

Q: Then you signed it and swore to the truth of your statement before the

inquest prosecutor?A: Yes. 

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c) Prove the prior statement.

Once the impeachable present testimony has been reaffirmed and the prior impeaching statement has been accredited, you can proceed to the impeachment by proving the prior statement.

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Example:

Q: I show you Exhibit “C” Do you remember having given this statement to the police on January 2, 2008?

A: Yes.

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Q: Do you remember having sworn to the truth of your statement before public prosecutor Antonio Santos on the same date?

A: Yes.

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Q: I invite your attention to the signature on the bottom of page 3, above the typewritten name Renato Reyes. That is your signature?

A: Yes.

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Q: Now, Mr. Reyes, would you please read from Exhibit “C”, your

statement to the police, the third line from the bottom on page 2.

A: (reading) “When the children yelled, we threw a beer bottle at the house.”

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d) Impeachment by omission.

1. A witness testifies to an important and material fact that he failed to include in his report or statement. The

omission is impeaching because “If what the

witness is saying now was so significant, why didn’t he put it in his report or statement?”

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2. The witness who prepared the report – a police officer, a

doctor or an expert – agrees with the need to be meticulous.

3.   The report or document is the correct place to put such information.

 

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4. The missing information is of such value that it could not possibly be overlooked or omitted from the report.

5. If you have been thorough and you have shown the “sanctity” of the prior statement, report or

statement, a dramatic way to expose the omission is as follows:

 

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Q: Please show the Court where in your report or statement you

say that (the omitted material).

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Example:

Q: Officer Santos, right after you arrested Bobby you claim he said, “I don’t know what got into me. It just happened.” Is that what you’re telling us?

A: Yes, sir.

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Q: You’re sure that’s what he said?

A: Yes.

Q: Officer Santos, you prepared a written report of this incident ?

A: Yes. 

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Q: You received training on how to prepare such written reports at the police academy?

A: Yes.

Q: You were taught to prepare complete and accurate reports?

A: Yes.

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Q: You were also taught to include everything about the incident that was important?

A: Yes.

Q: That’s because you, your commanding officer, and the public prosecutor all rely on that report to evaluate the case?

A: Yes.

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Q: One of the most important things to write down is what any person arrested says about the incident?

A: Yes.

Q: In fact, you’re taught to write down the actual words someone you arrest uses?

A: Yes.

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Q: (Have the officer’s report marked as an exhibit, show it to opposing counsel, then to the witness.) I show you what has been marked Defendant’s Exhibit #1. That’s your written report?

A: Yes.

Q: Your narrative of the incident covers the entire back side of the form, and is in single-spaced type?

A: Yes.

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Q: After typing it you read it over?A: Yes.

Q: You wanted to make sure it was complete and accurate?

A: Yes.

Q: And that it included everything that was important?

A: Yes.

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Q: After making sure it was complete and accurate, you signed that report?

A: Yes.

Q: The purpose of the report is to have an accurate record of what you saw, heard, and did?

A: Yes.

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Q: You also use such report to refresh your memory before testifying about the incident?

A: Yes.

Q: That’s important, because everyone’s memory fades with time?

A: Yes. 

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Q: In fact, you read this report today before testifying here?

A: Yes.

Q: Officer Santos, please show the Court where in your report you say that Bobby said: “I don’t know what got into me. It just

happened.”A: That’s not in the report.

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Q: In fact, your report says absolutely nothing about

any statement of Bobby?

A: Yes.”

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Cross-examination of various types of witnesses

1. Cross-examination of an evasive witness.

a) Try to get more evasive responses.

b) Make your questions simple and pointed.

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c) Request the court to instruct or order the witness to

answer.

d)    Request the court stenographer to read back your last

question and then ask the witness “will you answer that question, please.”

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e) Do not insist upon an answer if you are not absolutely sure that the answer will be favorable to your cause.

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Example:

Q: Did you talk with your brother during the noon recess?

A: No.

Q: Didn’t I see you in the corridor, talking with your brother, near the settee out there?

A: Oh, yes, he asked me a question. 

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Q: What did he ask you?A: (Pause…) I don’t want to tell

you.

Q: What did he ask you?A: I told you I don’t want to tell

you, and you don’t want to know.  

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Counsel, addressing the Court: I wish you would order him to answer the question.

 The Court: Well, he told you that he didn’t want to answer. Now, after the warning, do you want me to order him to answer?

 Counsel, addressing the Court: Yes, I do.

  

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The Court, : All right, Mr. Santos, I am afraid you will have to answer the question.

 A. (Witness folds his arms slowly across his chest, steps back in the witness stand, pauses, and then speaks.)

 He asked me, “Where did sister get that damn fool who is trying the case for her?

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2. Cross-examination of a lying witness.

a) Adopt a superior attitude.b) Allow the witness to testify

freelyc) Question him on collateral

mattersd) Use the “jump-around”

technique.

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3. Cross-examination of an expert witness.

a) The dangers of haphazard cross-examination are accentuated because (i) He knows more about his field than the cross-examiner;

(ii) He is less hampered by rules

of evidence; (iii) Frequently, he is a person of unusual

intelligence; and (iv) Often, he has experience in expressing his ideas persuasively.

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b) Cross-examination calls for extra-preparations

c)     Check the qualifications of the expert

d)    Never ask broad questions; your questions should be sharp and direct

 

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e) Question factual assumptions or factual parameters on which

his opinion is based.

f) Impeach the witness with the use of learned treatises.

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A cross-examination safety model

1. Highly safe questions

a. Witness’s provable prior statement.

b. Consistency with established facts.

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2. Medium safe questions

a. Consistency with every day experience.

b. Assumed testimony of unavailable witness

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Example:

Q: You were seated at the bar when the shots were fired, correct?

A: That’s right.

Q: Other people were in the bar as well?

A: Sure, a few others. 

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Q: Do you recollect that a young woman, with dark hair and wearing a blue dress, was also in the bar?

A: I think I remember someone like that. I wasn’t paying close attention to other customers.

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Q: Well, she was seated about five seats from you, near the tasteful moosehead on the wall?

A: That seems right.

Q: And you spoke to her briefly about the kind of beer she was drinking?

A: Maybe, I don’t really recall. 

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Q: Well, would you know if the woman’s name was Bobbie?

A: No, she didn’t tell me her name.

Q: But she was sitting about 10 feet from you?

A: About.

 

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Q: And you had no trouble hearing the shots?

A: None at all. Q: They were loud, like

firecrackers?A: I’d say so.

 

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Q: Then it’s safe to assume that Bobbie was near enough to have heard the shots also?

 Opp: Objection, Your Honor. Calls for a

conclusion. 

 

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Judge: It’s close, but I’ll allow it. You may answer.

A: I suppose so.

Q: Now, there was a five second interval between the shots, right?

A: …

 

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3. Unsafe questions

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THANK YOU!

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ADVANCED TRIAL ADVOCACY

By: Atty. Rogelio A. Vinluan

Batangas City, Batangas15 October 2008