Gilding the Lily on Cross-Examination

by Jamison Koehler on May 9, 2012
Jefferson and Washington monuments

After you get what you need on cross-examination, you sit down.

The charge is unlawful entry. Both defendants had been issued a barring notice from the Meadowbrook Run Apartments, and the government alleges that the defendants violated this notice by entering an apartment at Meadowbrook Run.

During cross-examination, Attorney A gets the police officer to testify that he saw the defendants walking out of the Brandy Hill Apartment complex.  The Brandy Hill apartments are a block up from Meadowbrook Run.  There is nothing in the barring notice about Brandy Hill.

Attorney A never confronts the officer directly with the discrepancy between what is listed in the barring notice and where the officer testified he saw the defendants. But, to lock him into the testimony, Attorney A gets the officer to refer multiple times to Brandy Hill Apartments.

Once this has been accomplished, Attorney A sits down. Now it is Attorney B’s turn. He could say, “no questions, Your Honor.” What he does say is this:

Q:            That was a Meadowbrook Run Apartment barring notice?

A:            Yes.

Q:            The location that we’re talking about here is the Brandy Hill Apartments, right?

A:            Say it again.

[You can just see the alarm in the officer’s eyes as he realizes his mistake.]

Q:            The location of this event was the Brandy Hill Apartments, right?

A:            No, I believe it’s the Meadowbrook Run Apartments.  I might have confused the two because they’re on the same side of the block.  However, the event is in the 3200 block of 6th Street and that’s where I observed both respondents.

[There.  The officer has fixed things.  But Attorney B won’t let it go.]

Q:            You testified all along that this happened at the Brandy Hill Apartments?

A:            I believe I just stated it was just a mere oversight.  Both apartment complexes are on the same side of the street on Sixth Street, but on the corner is Meadowbrook Run.

Q:            On the corner is Meadowbrook?

A:            Yes, sir.

Q:            Didn’t you say that this was, this took place at the Brandy Hill apartments?

[One last try for Attorney B. But it is too late. The officer has realized his mistake. He is not going to make it again.]

A:            I know what I said but I’m saying now that it was Meadowbrook Run, on the corner.  It was my mistake.

[The mistake was made not by the officer but by Attorney B.  Next time:  “No questions, Your Honor.”]

6 Comments on “Gilding the Lily on Cross-Examination

  1. For us non-lawyer readers, can you elaborate on the damage from Attorney B’s mistake? Is it as bad as a missed chance to get some sort of summary acquittal because the state offered no evidence for one of the elements of the crime?

  2. Mr. Draughn:

    Yes, although in this particular instance there were other problems with the government’s case that led to the same outcome, Attorney B’s mistake could have prevented an acquittal at trial.

    In order to secure a conviction for unlawful entry, the government must prove beyond a reasonable doubt that the defendant either entered or remained within some property “without lawful authority and against the will of the lawful occupant.”

    The barring notice referred to Meadowbrook Run Apartments. The police officer testified he had seen them at a separate apartment complex up the street. By pointing out the discrepancy and by allowing the officer to correct his testimony, Attorney B thereby helped the government make out a key element of its case.

    Of course, the government always has the right to re-direct. Assuming that the prosecutor also caught the mistake, the prosecutor could have rehabilitated the witness’ testimony himself had Attorney B not already done this for the government.

  3. I think it is generally good advice that “when you can’t improve upon the silence, don’t ask a question.” However, I have been reading Posner and Dodd lately and they would argue that you rarely should decline a cross. To do that is a defensive approach where you miss an opportunity to get favorable testimony from the witness. I think there is no doubt that if attorney B does ask a question, it should have nothing to do with which building it was.

  4. Dan:

    I had a trial last fall in Virginia in which the government called 9 witnesses to testify to something we had conceded in our opening statement. I tell you, it was gratifying to rise in my seat — nine times — after the prosecutor concluded its direct of a witness to say “No questions, Your Honor.”

    The “no questions” was consistent with our argument to the jury that the government was trying to distract it from the true issues in the case. It also sent the message to the jury that the government’s testimony hadn’t hurt us at all. As I have often said to clients, things are going well when I am quiet.

    Now where are those trial transcripts I asked you for?

  5. I think this approach is particularly useful in a bench trial, because you can give a judge a reason to acquit that doesn’t involve crediting your client or the defense theory generally.

  6. Most of the cross-examinations of my witnesses simply reiterate the direct testimony. Only now, the defense attorney usually gets in evidence I would be barred from admitting. I think a skilled cross-examination does more with what is not asked, setting up the case for summation.

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