As a junior public defender in Philadelphia, I was always impressed when watching an experienced criminal defense lawyer conduct a cross-examination. I am thinking of Brian McMonagle, who at one point represented Bill Cosby. Or Scott DiClaudio, who is now a controversial judge in Philadelphia. Or Jamie Funt who, as far as I can tell, is still practicing criminal defense …
D.C. Superior Court judges do not typically allow re-cross examinations. Yes, you have a constitutional right to confront witnesses against you in a criminal proceeding. But, with judges enjoying widespread discretion to oversee the proceedings, this right is not without its limits. The defendant in Gabriel Sanchez v. United States, 287 A.3d 1241 (D.C. 2023), was charged with Assault with Intent to Kill …
During the pandemic, criminal defense lawyers got spoiled with the favorable plea offers. With dockets backing up, the government was desperate to resolve cases through non-trial dispositions. One prosecutor compared it to a “fire sale.” Those times are over. I have noticed this. My colleagues have noticed this. And a long-time judge on the felony calendar who knows about these …
BY RESPONDENT’S COUNSEL Q: Okay. And at some point – Mr. Jones is from Russia, right? A: Yes. Q: And at some point he came back to the United States and he sought to re-initiate his romantic relationship with you, right? A: Yes. Q: And – and you were not interested in, in resuming that romantic relationship, right? A: Correct. …
Our goal as criminal defense attorneys is to turn opposing witnesses into unreliable narrators: Storytellers who should be punished for violating our trust.
Sometimes you need to say things for no other reason than that the client will hear you.
Sometimes you need to exercise your right to remain silent. Sometimes you should take your lawyer’s advice.
Now that DFS has lost its accreditation, the government is looking for creative ways to prosecute drug possession cases, including amending the charges to attempted possession. There are equally creative ways to counter this strategy.
I won a motion to suppress in a drug case yesterday. The win was particularly gratifying in that it involved the notorious gun recovery unit (GRU) from the Metropolitan Police Department. One of the lead officers for the GRU testified for the government, and he was a difficult witness: He would not concede a thing. I usually begin with some innocuous questions. …
People are, I believe, naturally contrarian. The question is how to use this phenomenon to your advantage at trial.
One man’s address book is another person’s ledger.
Trying a case — in this case, a CPO hearing — against an unrepresented party is always an experience.
I suspect that my remote-hearing persona may be more adversarial than my in-person one. And this concerns me: What does this say about me?
Q: Well, let me spell it out for you. At the airport, you showed up out of the blue, uninvited. Just like in the song. A: I had no idea she and her boyfriend would be there.
You have to love the “no-lose” questions on cross-examination. Yes or no. You win no matter how the witness responds.
Police officers have all the answers on direct examination. The clarity and animation disappear when it comes time to answer questions from the defense.
Complaining witnesses lie on the stand. This never ceases to amaze me. They could be telling the absolute truth about events that led to the criminal prosecution. But when they get on the stand and they are challenged on details during cross-examination, they abandon the truth.
I have taken 63 cases to trial since 2015. I have secured outright acquittals in 23 of these cases – roughly 37 % – and partial acquittals in an additional 8.
There are tons of criminal defense lawyers eager to tell their war stories. But how many people have been acquitted of a felony criminal offense?
Police officers have an instinctual unwillingness to agree with a defense attorney. Call me old-fashioned but I think it should be “just the facts, ma’m.”
Imagine my delight upon seeing the term “stuporous” used in the police report. Sometimes officers try to do too much. They should stay in their lane.
Q: So you followed him back to his house? A: I didn’t follow him. I was on my way to my mother’s house. She lives in that area. Q: You told police that your mother lives on B Street, right? THE COURT: Is that Northeast, Southeast – DEFENSE COUNSEL: — You told police that your mother lives on B Street, Southeast. Right? A: I don’t remember what I told …
It is true that police officers have no stake in the outcome of the case. But they are hardly neutral and disinterested witnesses.
Q: Ms. Jones. You realize that when the police interviewed you, they were wearing body worn cameras? A: Actually I didn’t know that. That’s not something I was aware of.
At a recent trial, I called my client’s mother as our only witness. I regretted this almost immediately. We had interviewed her. We had subpoenaed her. We had prepared her. And I should have left her sitting in the hall outside the courtroom as I rested my case.
“What is your name?” That is a non-leading question. Compare that with “Your name is John Smith, isn’t it?” That would be leading. It basically tells the witness what his answer should be.
A man is charged with soliciting a prostitute. He is a Lyft driver who, on the night in question, drops off a customer in D.C. A female undercover officer approaches the car while he is pulled over. What happens next is contested.
Q. Officer. When you arrived, the altercation was still on-going, right?
A. That’s right.
Q. So you have no idea how it started?
A. No, I don’t.
Q. When you arrived, my client had a bottle in her hand?
A. Correct.
Q. And he had a piece of wood in his hand, right?
I like most of the police officers I work with. Access to body worn camera footage has also given me greater respect for what they do: I have seen them deal with volatile and potentially dangerous situations with sensitivity and respect. But this notion of police officers as neutral, disinterested third party observers who testify impartially on behalf of the government is ridiculous. The officers do pick a side – and it is the government’s.
Q: If you lost your body worn camera, you could get written up for that, right? A: Yeah, if you lost it, yes. But in this situation, it was knocked off or fell off, whatever have you – Q: Right. A: I mean, it’s not exactly my fault in this situation but I still need to report the camera is …
It is my Kamala Harris moment. You recall her questioning of Brett Kavanaugh at his confirmation hearing. She sets him up carefully: Q: Judge, have you ever discussed Special Counsel Mueller or his investigation with anyone? A: Well, it was in the news every day. Q: Have you discussed it with anyone? A: With other judges, I know, uh – …
DEFENSE: Before I begin my argument, I’d like to invoke the rule on witnesses. HEARING EXAMINER: The what? The rule on witnesses? DEFENSE: Yes, sir. The sergeant has concluded his testimony. He will be a witness against my client at trial. I would ask that the sergeant be excused while I make my argument. HEARING EXAMINER: Something could said that he needs to …
When it comes to cross-examination, I consider myself a minimalist. I figure out what I need from the witness. I tell my version of the story. And I ask the witness to agree with me. Some lawyers have the witness repeat the testimony from direct. This is inconceivable to me. It was bad enough to hear the bad facts the …
Q: Officer. You testified on direct that my client was talkative when you first approached his car. A: Yes. As I began speaking with him, he was repeating himself quite a bit, wasn’t really answering my questions, just kept repeating himself. He kept talking and talking and just wasn’t really cooperative at the time that I walked up to the …
BY DEFENSE COUNSEL ON CROSS Q: Ms. Smith, do you have an email account? A: Do I have an e-mail account? Q: Yes. A: I do. Q: Is it a Yahoo account? A: No. Q: What is your e-mail? A: It’s – Q: Actually, let me ask you this way. Are you familiar with an e-mail account Tamara1540@nullyahoo.com? A: I …
Q: When did you have that conversation then with David? A: Prior to him ending up in the hospital. Q: Do you recall the date, approximately? A: No, I do not recall an approximate date. Q: Not even a year? A: What? Are you that stupid? 2013. Q: You didn’t have a conversation with him in 2012 about selling it …
The jury is still deadlocked after three days of deliberations, and the judge declares a mistrial. She releases the jurors. Anyone interested in answering questions from the lawyers, she tells them, should stick around in the jury room. All 12 jurors are there when the four of us lawyers – two from the government and two from the defense – …
It is not easy sitting second-chair at a trial when you are used to running the show yourself. Recently appointed as a provisional member of the panel to represent indigent criminal defendants in D.C., I need to second-chair two jury trials before I can be considered for inclusion on the full panel. So I go to the lawyers I most …
THE COURT: Okay. Now, see, we’re running into a little bit of a problem here. THE WITNESS: Okay. THE COURT: This is a trial in an American courtroom. THE WITNESS: Okay. THE COURT: And you have sworn to tell the truth and can go to prison if you don’t, okay? So within the last 30 seconds, you have told me …
I am doing a court-appointed criminal appeal, and I am cranky with the defense lawyer who tried the case. He won’t return my phone calls. He won’t send me the trial file. I have no idea why he appealed. And I find, upon reviewing the trial transcript, that he messed up the one potential area for reasonable doubt by asking …
A: It is a photograph of the bottle that was thrown through the window. Q: How did you find that bottle? A: I didn’t find the bottle. The policeman found the bottle. THE COURT: So she didn’t find the bottle. It seems that you put facts in your question that aren’t in evidence. Did you want to rephrase the question? …
The judge informs me that I am “badgering” the witness. I have heard of “arguing with a witness” and “harassing a witness.” Until the judge accuses me of “badgering” the witness, however, I didn’t even know there was such a thing – other than on TV, of course. The witness is the petitioner in a civil protection order case. I …
We like to think that the fate of our case will rise or fall depending on our lawyering. Placing us at the center of everything, this perception helps our egos. It also suggests complete control: We are guaranteed victory if only we work hard enough. And that is reassuring. Sometimes, however, we win not because of our lawyering but despite …
Q: You are certified to administer the standardized field sobriety tests? A: Yes. Q: So you are familiar with the science behind the standardized field sobriety tests? A: Yes. Q: And you are aware that the tests have never been peer-reviewed? A: Um. I was not aware – HEARING EXAMINER: What is the relevance of this? A: That’s – HEARING …
DEFENSE COUNSEL: Objection. HEARING EXAMINER: Basis? DEFENSE COUNSEL: I would ask that the officer testify from memory and not read from his report. HEARING EXAMINER: Officer, are you testifying from memory or are you using the report to refresh your recollection? OFFICER: I am using the report for recollection. HEARING EXAMINER: Okay. And are you relying solely on the report …
She is assertive without being aggressive. She knows when to push and when to hang back. She is pleasant and well-spoken. She does her homework. She is committed to her clients while keeping a sense of humor. As an avid student of the law, she is always ready to talk things through with you. She is smart in a way …
I read every transcript I can get my hands on, including my own. My office mate at the Philly PD’s office used to give me a hard time about that – he thought I was being vain. But he may have been giving me more credit than I deserved. Sometimes you are proud of how you did. Other times, with …
The judge takes the bench at 9:15 am. That she does this every day without fail is a sign of respect for herself, for the system, and for every person who appears in front of her. And it makes my job easier too: Make sure you are there no later than 9:00 o’clock, I tell clients. If we are first …
Q: You testified on direct that the defendant approached you. A: Define when you say approach. Q: I am sorry? A: Define what you mean when you say approach. Q: Officer. Unless I am mistaken, it was you who used the word approach. On direct. Am I wrong about that? A: No. No, I guess, I guess I used the …
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 a response. “If you put it that way,” he testifies, “yes.” Willis thinks about this for a …
It is what we see on T.V. and in the movies. It is what our clients expect of us. And, providing us with war stories to tell our friends and colleagues, it is lots of fun to do. This is the tearing down of the opponent’s witness on cross-examination. We confront the witness. We force her into concessions. We catch …
We feel like we know our colleagues. We know who the good ones are and we know who the bad ones are. But that is based mostly on reputation. We spend a lot of time together in the courtroom waiting for our cases to be called. But we rarely see each other at trial. Trials usually begin in the late …
It is great when things are going well on cross-examination and you can string out one helpful tidbit after another for maximum impact. During the cross-examination of a police officer in a DUI case, for example, this might be taking advantage of what Lenny Stamm has referred to as the “white part” of the police report: All the good things …
Much of what I needed to know about cross-examination came from a one-hour training session at the public defender’s office in Philadelphia early on in my career. Fred Goodman led the session. You use short, declarative sentences, he taught us, to tell your side of the story. You use a rhythm and cadence in which you reward the witness for …
If you are like me, your views on cross-examination are heavily influenced by two different sources/authorities. First, there is Irving Younger’s lecture on the “Ten Commandments of Cross-Examination,” which was shown to me during my initial training as a public defender in Philadelphia. Second, there is Francis Wellman’s book on The Art of Cross-Examination, a copy of which was sent …
This from the Blog of Legal Times: By all accounts, it was an excruciating moment at the Supreme Court on Tuesday. A nervous first-time advocate began his argument by reading from a prepared statement, until the never-shy Justice Antonin Scalia interrupted and asked: “Counsel, you are not reading this, are you?” The lawyer, Steven Lechner, froze and did not answer, …
We should be able to take it for granted that the other side will not coach its witnesses. But this is not an ideal world. A couple of years ago, for example, police officers in D.C. accused prosecutors from the Office of the Attorney General with having asked them to lie on the stand in a DUI case. (The officers …
I always have the best intentions after attending a good CLE. Returning to my office with a binder full of great information, I have every intention of reading through all the materials that were just referenced during the training. The binder lies on my desk for a couple of days. After a week of so, I move it onto a …
Q: Officer, as I understand it, you were parked behind my client at the intersection of 19th and M Streets northwest? A: Yes. Q: And there were two reasons you decided to pull him over? A: Yes. Q: The first reason was that he didn’t pull forward immediately when the light turned green? A: Yes, I was concerned that – …
Q: Turning your attention now, Officer, to the one-leg stand. A: Okay. Q: Mr. Jones had you step into the well of the court and demonstrate how you delivered the instructions on the night in question. A: Yes, sir. Q: And, in fact, you were speaking so quickly that the stenographer had to interrupt you. She had to tell you …
BY DEFENSE ATTORNEY Q: Now, officer, turning to the HGN? A: Yes. Q: The horizontal gaze nystagmus? A: Yes. Q: It’s fair to say that you are not an opthamologist? A: That’s right. Q: Or an optometrist? A: No. Q: Or an optician? A: No. I am not. Q. But, according to the government, you are an expert in the …
Q: Officer, you testified on direct that when you first saw my client, he was driving southbound on 7th Street? A: Yes. Q: You were driving northbound? A: Actually I was parked. I was parked facing north. Q: When you first saw my client, he wasn’t speeding, right? A: Not that I’m aware, no. Q: He wasn’t swerving? A: No. …
BY MR. KEY: Q: When was the last time this particular machine, the one in Government’s Exhibit Number 4, was actually calibrated? A: You mean auto-cal’d? Are you talking recertified or auto-cal’d? Q: All of them. You tell me when is the last time you calibrated this machine? A: That machine I haven’t calibrated. Q: So, when was the last …
In 2010, Thomas Key and Bryan Brown almost single-handedly dismantled the Metropolitan Police Department’s DUI program through a series of remarkable revelations about the inadequacies of the program. In 2011, the two defense attorneys set their sights on the program run by U.S. Capitol Police. Here is Thomas Key cross-examining U.S. Capitol Police Officer William St. Ledger on a sign that …
Midway into my cross-examination of the police officer, the judge calls the prosecutor and me up to the bench so that she can talk to us outside the hearing of the jury. “That line of questioning is objectionable,” she tells me. We spend a few minutes debating this, and I ultimately convince her that the government opened the door to …
I wake up again at 3:00 am but, for the first time in over a week, there is nothing to do but clean up my study. There were positives from the trial: A government expert who could not perform basic calculations, and another expert who messed up the standardized field sobriety test. Other witnesses were caught in basic contradictions. …
Wayne my investigator is a worrier. I am too. Wayne is an early riser. So am I. This means I usually have company early mornings before trial. The two of us sit in our respective home offices on opposite sides of the District, texting each other hours before we need to head over to the courthouse. Alas, because there was …
He is a senior prosecutor. He doesn’t hide the ball or over try his cases. He is pleasant and reasonable, and he lets you know exactly where he is coming from – what he can do for you and what he can’t. I was surprised he went forward with this particular case. As Wayne my investigator says, sometimes there’s just …
Rule 41 of Keith Evans’ Common Sense Rules of Advocacy is what he calls “Newton’s Rule.” Isaac Newton’s third law of motion, of course, was that for every action there is an equal and opposite reaction. Evans applies this rule to trial advocacy to suggest that you never want to get into a confrontation with your finder-of-fact, whether that’s a judge …
There are certain reference materials that are essential to a law practice. In the case of a criminal defense practice in D.C., for example, you could not get by without the D.C. crimes code, jury instructions, rules of evidence, sentencing guidelines, the two volumes of the Criminal Practice Institute’s manual, and some type of legal research service. In addition to …
My investigator Wayne Marshall gets an A+ for his testimony yesterday at trial. Of course, I am biased. Marshall is everything you could want in a witness: He knows his stuff. He is well-spoken, direct, straight-forward. He answers the questions you ask of him and nothing more. He doesn’t try to anticipate what he thinks you want him to …
One of the first things they told us during training at the public defender’s office in Philadelphia was that, although they could help us develop many of the skills we needed to become successful trial lawyers, they could not help us with our trial personas. That was something we had to develop for ourselves. And there was no one-size-fits-all approach. …
If practice makes perfect, then prosecutors tend to be better at direct examination and defense attorneys at cross. It is a question of what we do the most of. I think of this while watching a prosecutor conduct a cross-examination in JM-13. The defendant has taken the stand in her own defense, and the prosecutor is trying to poke holes …
I put our star witness in jail. I have heard about prosecutors being slammed for doing this. One of my adjunct professors in law school – a prosecutor in Philadelphia – ended up on someone’s list of the top ten worst prosecutors in the country for having one of her witnesses in a murder case sit in custody for …
I am watching what has to be the best cross-examination at a probable cause hearing I have ever seen. It is a new attorney from the Public Defender Service (PDS), someone I have never seen before, and he is handling the cross-examination like he is Irving Younger. He is pleasant but firm. He moves methodically through the facts, pinning the …
I walk my client out to the street afterward (“You mean I don’t have to sign anything, I can just go?”), disappointed that, since it is late in the day, there is no one still at the courthouse to share the news with. First I get my wife’s voice mail. Then I get my investigator’s. Walking over to the parking …
Your client is cranky with you for the lousy job he thinks you are doing on cross-examination. There are no dramatic “gotcha” moments like you see on T.V. Instead, every time you elicit what appears to be an inconsistency in the witness’ testimony, you pull back, moving onto a new line of questioning. It is almost as if you didn’t …
Q: Now, officer, let me turn to the walk-and-turn test. A: Okay. Q: You testified on direct that Mr. Smith stepped off the line three times. That is, he stepped off the line twice on the way down, and once on the way back. A: Yes. That’s right. Q: And stepping off the line is one of eight clues you …
I like the government witnesses who fight with you on cross-examination, refusing to acknowledge even the most basic facts, like whether a particular street goes north-south or east-west. It is as though any concession at all to the defense will lose the case for the government. Although I have never been a judge or sat on a jury, I would …
DEFENSE ATTORNEY: I noticed that you checked the box for “stuporous” on the police report. OFFICER: Yes sir. Q: You also used the term on direct. A: Yes sir. Q: You obviously thought that this was an important observation. A: Yes. Q: Let me ask you, Officer. When was the last time you used that term in every day conversation? …
Q: You testified that my client stumbled as he got out of the car that night. A: That’s right. Q: What do you mean by “stumbled?” A: I don’t know. He stumbled. Q: Did he fall? A: No. He kind of swayed. And he put his hand on the car for support. Q: This was as he was getting out …
I am a middle-aged man with some life experience. I have been doing criminal defense for a while now. Just yesterday I posted how many police officers “editorialize” when testifying. Still, I continue to be surprised – each time anew – every time a police officer gets up on the stand and lies. I should have seen the signs. There …
Many police officers have a tendency to editorialize on the witness stand. It is not that the driver reached for the glove compartment after being pulled over so that he could have his license and registration ready for the officer’s inspection. It is that the “suspect” was making “furtive movements” upon the officer’s approach. It is not that the police …
POLICE OFFICER: . . . The defendants knew they were not allowed in the store. DEFENSE ATTORNEY: Objection. THE COURT: Grounds? DEFENSE ATTORNEY: Your Honor, as to what the defendants knew, I’d object to that and move to strike. PROSECUTOR: Your Honor – THE COURT: Calls – PROSECUTOR: — I think he was saying the defendants – THE COURT: — …
“That’s as low as my office is willing to go for this type of offense.” This is what the prosecutor tells me. We are talking about the number of hours of community service my client would be required to perform under a plea bargain, and we have deadlocked. This is the only outstanding issue. The difference between us is a …
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 …
I recently served as co-counsel in two juvenile cases with Eddie Ferrer of D.C. Lawyers for Youth. Although neither case ended up going to trial, you do get a pretty good sense of your colleagues when working together to represent co-defendants. I am always happy when co-counseling with lawyers from the D.C. Public Defender Service — most recently Michael Carter, …
“No questions, Your Honor.” What could be more satisfying to say after your opponent has completed his direct examination than those four simple words? It is a challenge, a slap in the face with a folded glove. It is a declaration that the other side hasn’t touched you, hasn’t hurt you at all, with the testimony. It is like Muhammad …
Before beginning my practice in Virginia, I went over to traffic court in Fairfax County to observe, and was struck by the large number of DWI cases that pled. One piece of blue paper after another was passed up to the judge, with the defendants lining up to accept responsibility for their offense. These guys don’t know how to …
Reviewing the transcript from a hearing or trial you have done can sometimes be a humbling experience. What you may have remembered as a dramatic moment at trial can come across as flat on the printed page, and a good stenographer will throw in every “er,” “um” and “okay” to remind you that you may not be quite the …
Guest Post by “Hamilton Burger” Every trial lawyer faces that sharp chill in the middle of the night, when your mind refuses to let go of your upcoming trial — and you realize that your opponent has an expert witness who is going to crush your case. You may be a defense lawyer who has to prepare a trial …
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 …
MR. KOEHLER: Objection. Relevance. THE COURT: Mr. Koehler, you can sit down. MR. KOEHLER: Your honor, this is absolutely ridiculous. MR. RIORDAN: No, it’s not. THE WITNESS: No, it’s not. MR. KOEHLER: It is completely irrelevant. THE WITNESS: What’s ridiculous is how [the petitioner] gets away with all this stuff. THE COURT: I really can’t properly judge the relevance …
Judge Milton Lee of D.C. Superior Court takes the bench at 9:00 am. Promptly. Every morning. Without fail. One of my biggest complaints about the Office of the Attorney General in D.C. is that its prosecutors often waltz into court well after 9:00 am every morning, usually minutes before the judge takes the bench. This can make life difficult …
My colleague — the lawyer for the co-defendant in one of my cases – is annoyed with me. We each represent a person charged with robbery at a metro stop, and I am cross-examining the police officer at a preliminary hearing. Our theory is mistaken identification, and I am trying to establish how many people were at the station …
I am sitting in court waiting for trial to begin. The charge is assault on a police officer. I have just been given a video recording in another case and I decide to use this time to watch it. So I pull out my laptop and stick it in. My viewing of the video seems to raise the attention …
I am watching Mani Golzari of the D.C. Public Defender Service cross-examine a police officer at a probable cause hearing. Of all the cross-examinations I have either done or seen this past week, Golzari’s is undoubtedly the best. Golzari was a rising superstar when we worked together at the public defender’s office in Philadelphia, and he is even better …
I am sitting in JM-15 at D.C. Superior Court watching a Georgetown University law student cross-examine a police officer on a drug case. The officer is doing the old “dumb officer” routine; that is, he can’t seem to understand any of the questions, even though it is perfectly clear to everyone else in the courtroom what the student is …
Although Virginia juries have a reputation for being unforgiving, I have also been told that juries in Prince William County can be pretty unpredictable. Going into trial yesterday, my client was facing a mandatory 5-year sentence for being a violent felon in possession of a firearm. During execution of a search warrant at his home, police had recovered a …
Sitting in Room 117 of D.C. Superior Court last week, I caught the tail end of a bench trial in which the defense attorney read her closing argument from a sheet of paper. I have no idea how persuasive the content of her argument was because the delivery was so poor. I had the feeling I was sitting in an …