On the Benefits of Restraint During Cross-Examination

by Jamison Koehler on April 16, 2014

I am sitting in JM-15 watching Jessica Willis of the Public Defender Service cross-examine a police officer during a probable cause hearing. Willis is firm with the officer. She is also pleasant, reasonable and restrained.

At one point the officer tries to qualify his answer in response to one of her questions. “If you put it that way,” he testifies, “yes.”

Willis thinks about this for a moment. “Actually, sir,” she says.  ”That was a yes or no question. Did you or didn’t you?”

“Yes,” the officer responds again. “I did.”

I am up next. Since it is the same officer who is testifying, I have the benefit of having just watched him testify. I can also compare Willis’ style in dealing with him with my own. It is her restraint, I conclude later, that I most admire.

I occasionally make the mistake of assuming the court will be as outraged as I am by an officer’s attempts to shade the truth.  This is not a good thing.  You think the judge is there with you and maybe he or she is, at least for a while.  Then you push things too far and suddenly you are out there all by yourself.  Courts are generally sympathetic to police officers.  They don’t like to see them humiliated.

It turns out in this case that the clothes my client was wearing at the time he was detained do not match the lookout.

“He must have gotten rid of the black skullcap,” the officer suggests.

“I am not asking for you to speculate,” I tell the officer.  ”My question was whether or not my client was wearing a black skullcap when you detained him.”

The judge is still with me at this point.  She looks over at the officer for his response.  “No,” the officer responds.

But then I get too aggressive.  The officer tries to change the description of the shoes given in the lookout to match the shoes my client was wearing when he was apprehended – the shoes my client is still wearing in court – and this annoys me.  And, again, I mistakenly assume the judge will share this annoyance.

I should have left it alone.  As soon as the inconsistency has been established for the record, I can wait to make the point during argument.  Instead, I push the officer.  This makes the judge uncomfortable:  “Any more questions?” she says to me with the tone that strongly suggests she doesn’t think there should be.  More importantly, it gives the officer the opportunity to explain away the discrepancy.

Jessica Willis is relatively new to PDS.  Still, given her nuanced and restrained cross-examination of the same officer from earlier, I am thinking this is one rookie mistake she would not have made.

More like this:

Firing Andrew Crespo

Why I Like D.C.’s Public Defender Service

A Public Defender Just Doing His Job


Killer Question on Cross-Exam

by Jamison Koehler on April 15, 2014


Ralph Who? The Basketball Great You’ve Never Heard Of

April 13, 2014 Sports

In 1981, John Thompson was able to convince two of the top high school basketball players in the nation to come to D.C. to play for Georgetown. Landing either recruit would have been a major accomplishment; getting both seemed too good to be true. There was lots of debate on campus as to which player […]

Read the full article →

A Really Thorough Search for Easter Eggs

April 13, 2014 Humor
Read the full article →

My Favorite Woman. My Favorite Congresswoman. And Nancy Pelosi.

April 10, 2014 Miscellaneous
Read the full article →

The Most Promising Law Students Know Latin and Greek

April 9, 2014 Miscellaneous

My brother teaches classics at an inner city high school in Connecticut.  Just the other day he called me with a student on the phone.  Interested in a career in the law, the student wanted to know whether she should study business or political science.  I told her that her major did not really matter.  […]

Read the full article →

Bronx Prosecutor Castigated for Withholding Exculpatory Evidence

April 8, 2014 Criminal Procedure

According to the New York Daily News, a prosecutor in the Bronx failed to turn over exculpatory information to the defense in a rape case.  The evidence in question was an initial statement by the accuser that the sex had been consensual. The statement was not disclosed until after the defendant sat in jail for […]

Read the full article →

The Governor Comes For Brunch

April 5, 2014 Current Events
Read the full article →

Congresswoman Speier on Sentence of General Sinclair

March 26, 2014 Current Events
Read the full article →

DUI Lawyers Get No Respect

March 21, 2014 DUI and Driving Offenses

I am attending the “Mastering Scientific Evidence” for DUI cases sponsored by the National College for DUI Defense (NCDD) and the Texas Criminal Defense Lawyers Association (TCDLA).  New Orleans is a wonderfully decadent city:  It is fun to see tourists strolling down Bourbon Street with Mardi Gras beads and a large, fluorescent-colored drink at 10:00 […]

Read the full article →