Jefferson Memorial

Cross-Examining a Prosecutor

Jamison KoehlerCriminal Procedure, Evidence, Trial Advocacy


I have been called to testify in a criminal case. A couple of weeks ago I represented a woman seeking a civil protection order against a former boyfriend. With the boyfriend now facing criminal charges for contempt of court, certain admissions he made to me during the course of that representation have become relevant to the criminal proceedings.

It feels strange to be working on the same team as a prosecutor I have opposed many times. Yes, yes, I tell her when she emails me. Any of those dates would work fine. Fortunately, we have a good relationship and I promise to be a cooperative witness who simply answers the questions that are put to me. Because I know from personal experience that people who are familiar with the system can sometimes make the worst witnesses.

A couple of years ago in Philadelphia, I represented a client in a case in which the complaining witness was a supervisor from the district attorney’s office.  Speaking to the supervisor before trial, I took perverse pleasure in hearing her complain about her mistreatment at the hands of police officers and the junior prosecutor who was assigned to the case. This system we have, she said, really stinks. I can’t believe they made me wait that long at the police station. I can’t believe that no one contacted me to discuss this case until the morning of trial.

When she finally made it to the witness stand, she didn’t like the questions that were put to her on direct because, after all, she knew much better.  And, despite her many years of experience as a trial lawyer, she seemed personally affronted by my cross-examination. She may have been expecting professional courtesy.  What she got instead was an education in humility.