Imagining What Didn’t Happen

Most people think cross-examination is all about badgering the witness into admitting the crime. Others think closing argument is about is about tricking the witness into a damning admission. Both of these views are wrong, in my opinion.

A defendant who chooses to testify is going to come up with a story that he thinks will get him off. The story usually holds up on its face. Your job, as cross-examiner, is to break it down. You can’t ask, “that’s dumb, isn’t it.” And it’s rarely useful to ask, “you’re lying to get off, aren’t you?”

The best way to break down a fake story is to imagine what a normal person would have done and compare that with what the defendant says that he did. Consider the important decisions the defendant made. And for each of these, ask yourself what a normal, reasonable person would do in that situation. Here’s an easy example. Imagine you’re trying and assault case in which the victim was injured and called 911. Then, the defendant takes the stand and says that the victim is the one to blame. The defendant concoct a story in which he is the one who had to use force him self defense. A reasonable person in this situation would call 911. After all, and innocent person has nothing to lose by calling 911. By contrast, a guilty party increases his chances of being caught if he calls 911. So the important question is, why didn’t you call 911. In this situation, you’re hoping that the defendant comes up with an unbelievable reason for not doing so. “My phone was dead.” “I figured they were too busy to help.” Answers like these help you. If you get enough of them on cross, your defendant will have lost all credibility and you won’t need to do much. Even if you only get a few, you can magnify them in your closing.

These arguments dovetail nicely with pointing out during your closing all the evidence that the defendant did not present. You will have the benefit of supporting evidence, and lots of it, for the prosecution case. While the defendant will not have any evidence for his story. And the fact that the defendant elected to go with one story rather than merely challenging the prosecution’s story helps the prosecution. It becomes dueling stories rather than the question of whether the prosecutor met his burden. It’s always easier to get the jury to decide between two stories then it is to eliminate all reasonable doubt. After all, in the latter situation, each juror may come up with their own story, and you may have to disprove 12 imagined versions of the crime.

Annotations:

Here’s a chapter from a textbook on cross-examination.  They describe our tactic as the “Things Not Done” cross-examination.  The chapter also lists more than a dozen other strategies.

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