ONE-TWO

CHA-CHA-CHA

A STEP BY STEP METHOD

OF
CROSS-EXAMINATION
&
IMPEACHMENT
by
Fernando Freyre
 Philosophy
• CROSS-EXAMINATION IS NOT AN ART!
– IT IS A SCIENCE!

• This means there are steps, systems and techniques

that can be learned, practiced and perfected. All
you have to do is learn the steps and practice them.
• It is so simple that I can teach it to you TODAY.
• It is contrary to what you have been taught.

• MacCarthy on Cross-examination by, Terence

MacCarthy, teaches us
1. look good while
2. telling a story using
3. short statements.
What is your theory of
your case?
What is your theory of the
Witness? Why?
• To destroy
• To discredit
• To get more information
• To do nothing

If it does not help your

theory don’t do it!!!
 THEORY OF THE CASE
and
THEORY OF THE WITNESS
• What is my theory of THE CASE?
• What FACTS can I get from this
witness to advance MY THEORY
• If crossing the witness does not
advance my theory then I have

NO QUESTIONS!
 How does a jury
PERCIEVE you?
Do you think they like lawyers?

Question: What’s The difference

between a lawyer and a catfish?

answer: one is a scum sucking

bottom feeder and the other one is a
fish.
 BE IN CONTROL WITHOUT
APPEARING CONTROLING
• Looking good and telling a
story is more persuasive to a
jury than appearing,
–controlling (like MY ex),
–extracting (like a dentist),
or
–verbally abusive (LIKE MY
EX).
 WE HAVE TO CHANGE THE WAY
WE THINK ABOUT CROSS -EXAM
• REMEMBER OUR GOAL IS TO PERSUADE.
• STOP TALKING LIKE A LAWYER.
• BECOME A COMMUNICATOR.
• BECOME A STORY TELLER ON CROSS.
• SELECT THE SCENES (vignettes) WE WANT
THE JURY TO VISUALISE AND CREAT A VISUAL
IMAGE FOR THE JURY..
• INJECT ANY OTHER SENSEs POSSIBLE VISUAL
IMAGES, SMELLS, FEELINGS, SOUNDS, WILL HAVE AN
EMOTIONAL IMPACT ON JURORS THAT WILL CAUSE
THEM TO REMEMBER OUR MESSAGE.
 Cross = Mini closing
• Our goal is to give a mini closing
during our cross.
• We will tell our story using one
new fact at a time.
• The witness is there merely to
affirm what we say.
 BASIC PRINCIPLES OF THE
METHOD
• Cross examination does not mean examining
crossly.
• Our ultimate goal is to persuade the jury to
accept the explanation of the facts as told by
us.

• Cross-exam is always a MONOLOUGE

by the lawyer NEVER a DIALOGUE. The
witness is basically insignificant.
 RULES OF A GUNFIGHT
(or a Closing argument)
1. You need a good gun.
(argument/conclusions).
2. You need bullets to fire out of the gun.
(Facts)
3. The gun has to be able to fire the bullets.
(Show how the facts support your
conclusions and your theory oF the case.)
4. We only get facts from witnesses, Trying
to get a conclusion from a witness is
like giving him your gun!
 How do you do it?
Chapter method
What am I going to ask?
• What conclusions do I want the jury to
reach about the witness?
• These will be my chapters for this
witness.
• These chapters are the arguments
I will make in my closing.
• I WILL GET MY BULLETS (FACTS) FROM THE
WITNESSES ONE AT A TIME.
 Sources of information
• Prior Statements of
the witness.
• Versimilitude: The way
things were or are. What must be The
truth.

• Plausablilty: What a jury

believes things were or are. Their
truth.
 EXperTs
• Prior statements:
• Reports - testimony
• credentials
• basis of science.
• Reliability of procedure
• Learned treatises
Short + Statements= Control
• Use transitions.
• Only one new fact at a time.
• LISTEN TO THE WITNESS
• LOOP Repeat statements with established
facts (OR A CONCLUSION ALREADY MADE BY
THE WITNESS) that you want to emphasize
with the one new fact of your statement.
• Get witness in “YES” mode
• Descriptive language “Hit v. Smash”
• Lengthen a moment in time
• Trilogies.
 transitions
• Use transitions to begin each chapter
• This will signal to the jury that you have
finished with one point and are moving to
another and give them an idea of the reason
for the specific questions to follow
 The inverted pyramid

• Set the stage and paint a visual

image for the jury one fact at a
time
• Begin with more general
questions and then narrow to a
specific point
“I would now like to talk to you about when you first
saw the gun.”
It was a Sunday night.
About 7:15.
You were in your front room.
You were laying on the couch.
About three feet from the front door.
You heard the doorbell.
You got up.
You went to your front door.
Your dad was standing behind you.
You open the door inward.
The man is standing there.
Wearing a poncho.
A red poncho.
You push the screen door open.
His left hand comes out from under the poncho.
You see a gun in his hand.
You lunge for his hand.
“I would now like to talk to you about the report
you wrote in this case.”
“You have written many reports?”
“You have training in report writing?”
“You have been taught the need to put all the important information in
the report?”
“That is how you write your reports?”
“This is information your fellow officers rely on?”
“And IN THIS CASE you wrote a report?”
“You wrote it 20 minutes after the event?”
“You knew it was important to get as much information as you could?”
“Get all the important details?”
“You got all the information you could?”
“You put the important information in the report?”
“YOU DID NOT PUT ANYTHING ABOUT A GUN IN THE REPORT?”
 Rules of the game
• YOU are the ONLY story
teller.
• USE only short statements WITH ONLY ONE
NEW FACT AT A TIME.

• USE
1. WORD SELECTION
2. VOICE INFLECTION
3. BODY LANGUAGE
4. POSITIONING
5. Silence
6. NOTES- Never read while talking
 ENGAGE YOUR AUDIENCE
When we cross-examine a witness we
cannot forget our audience.
If you are having an interaction with the
witness only, you are not communicating
with the jury.
EYE CONTACT: Begin your statement
looking at the witness and end by looking
at the jury.
 FACTS ARE MORE PERSUASIVE
THAN CONCLUSIONS
• He was not big- he was 6’5” and weighed 325.
• He was not drunk- he had 5 drinks between 7 and 9; he
had not eaten for 7 hours; he is 5’4’ and weighs 133 lbs.
• It was not dark- it was 11 pm.; there was no moon;
there was one street light at the intersection; that was the
only light at the intersection; the suspect was between you
and the light.
• It was not hot- It was 97 degrees in the shade; there was
no wind; it was so bright you had to squint; the sweat was
dripping off your hair; it was getting in your eyes; you did
not have any spit left in your mouth; you could feel the
heat rising out of your collar.
 WE ARE ALWAYS TELLING THE
JURY OUR STORY
Pay attention to the DETAILS and the
big picture will take care of itself.

• ONE NEW FACT AT A TIME

• NEVER USE CONCLUSIONS

• EXCEPTION TO RULE:
You can use a conclusion if the
witness has already used the term.
PRIMACY AND RECENCY

• People tend to remember

the first and last things
you tell them.
• Start and finish with
your most important
chapters.
 Other tools to control the
unruly witness.
1. Continue to re-ask the exact question for the witness.
(It has been asked but not answered.)
2. Slow the tone and tempo of your voice
3. Use the witnesses name
4. Flip the question to the negative.
5. Turn your back on the witness until they are done
rambling and then ask,
“Now would you answer MY question?”
“Do you remember my question?”
“Can you tell me what my question was?”
When they cannot, re-ask the exact question.
Impeachment
&
The use of
prior statements
 Before confronting with a prior
statement…

• First I ask, “do I like the new statement better?

• If I like the new statement better…

•I do nothing
 What if the witness does not
want to cooperate with me?
• Sometimes you have to train THE
puppy and witnesses are no
different.
• We can control the witness without
being controlling.
• One fact statements equals CONTROL.
• Compound questions or conclusions
result in a LOSS OF CONTROL.
 If I don’t like the answer…
• We have to train the witness.
• It is very similar to training a puppy.

• Rather than using a rolled up newspaper, we use

the prior statements of the witness or others.
• Transcripts
• Written or recorded statements of the witness
• Statements of other witnesses
When the witness talks
Caca
We will fight
Caca with caca

CONFIRM
ACCREDIT
CONFRONT
Adios
 IMPEACHMENT TECHNIQUES
(Pozner and Dodd on Cross-
examination)
Fernando’s Favorite
Fighting Caca with CACA

CONFIRM-ACCREDIT-CONFRONT-ADIOS
1. Confirm the current statement. (QUOTE)
2. Accredit the prior statement and
circumstances.
3. Confront with the exact language of the
prior statement. (QUOTE)
4. Adios. NOT AHA! SO THAT MEANS……
 STEPS WITH “QUESTIONS”
1. CONFIRM: Today you have said “_______quote___________”.
2. ACCREDIT: The (DAY) at (TIME) at (LOCATION) you gave a statement to (WHOM).
2(a) It was the truth.
– It had just occurred
– It was fresh in your memory
– You wanted to help as much as possible
– You told them all you knew
– You knew that this was very important information
– You were as complete as possible
– You told the TRUTH
– You swore it was the TRUTH
– It was the TRUTH

3. CONFRONT: In that statement you said “____quote___________”.

4. Adios: “THANK YOU”, “NOTHING FURTHER” Or … “YOUR WITNESS”
 What if the poor witness
“is mistaken”
• The impression that you want to give, will determine
how you will treat the witness.
• If you like the witness, but he makes an inconsistent
statement and you don’t like the new statement, you
can refresh the memory of the
witness rather than impeaching him.
 REFRESHING RECOLLECTION WITH EXTRINSIC
EVIDENCE

• Generally used on direct examination.

• You can use anything to refresh the memory
of a witness if the witness says it might help.
– One of the prior statements of the witness (written,
signed, transcript)
– A statement by someone else

–A bowl of pasta, a cup of

wine and violin music.
WHY HAS THE STATEMENT CHANGED?
We only want to get FACTS to use in our closing arguments. NEVER
try to get the witness to give you a CONCLUSION. THEY WILL
NEVER GIVE IT TO YOU!!!!!
FACTS
You have spoken to other witnesses
You have spoken to the prosecutor
You have seen reports in the media
You have seen pictures of the suspect
You have seen police reports
You have seen other information about the suspect

CONCLUSIONS
You want to appear important
You like to be on TV
You want to help one of the parties
 How do
you do it?
 CRISS-CROSS CHART
1/1/13 1/1/13 1/2/13 5/1/13 Direct Cross-examination
2:30 am 3:30 am 11:00 am. 10:00 am.
101 8TH St. 101 8TH St. Police PH County
off. Joe Bob Writtin Stmt. Dept. Court;
off. Jim Bob Det. Gordo Testimony

The car was red (P1/L2) It was a red The car was red The car was blue The car was blue
car(P4/L12) (P111/L2) (P33/L222)
It seemed like the truck I saw the truck run the red
ran the red light light
(P65/L12)
The truck was blue (P1/L4) It was a blue truck The truck was The truck was green The truck was blue
(P2/L2) blue (P113/L22) (P18/L9)

The truck was red (P1/L7) The car was red The truck was The car was blue The car was blue
(P2/L4) red (P21/L2) (P221/L17)
I did not see the I did not see the I saw the woman I don’t remember saying…or, I
woman (P1/L7) woman never said that
(P11/L7)
Jorge was drinking all night Jorge had about Jorge was not drunk I don’t remember saying…or, I
long (P1/L8) six drinks at the never said that
bar (P1/L4)
I did not see the woman Jorge had about six I saw the woman
(P1/L29) drinks at the bar
.(P6/L2) I did not see Jorge

I did not see him shoot the gun I heard the shots and I I think he is the I saw him shoot my friend I did not see him shoot the gun
(P2/L2) saw my friend fall one that shot at
(P1/L2) my friend
(P81/L21)
He was skinny and tall and he He was about 6 ft. tall I heard he was He was latin american I am sure it is him. I can He was skinny and tall and he ran
ran away from us very fast and he was skinny and arrested and I with a beard and a remember his face. away from us very fast (P2/L12).
(P2/L12). he ran down the alley saw his photo on tattoo of tears on his
away from us (.P6/L1) the news face. (P154/L2)
(P110/L2)
Jorge had about six I did not see the
drinks at the bar woman (P1/L29)
.(P6/L2)
 IMPEACHMENT WITH PRIOR
STATEMENTS
1. Prior inconsistent statement.
2. Prior omission.
3. Prior consistent statement to rebut an implication of recent
fabrication.
4. Prior consistent statement without an implication of recent
fabrication.
5. Use of extrinsic evidence to prove the prior inconsistent statement.
(Written statements/ Transcrips)
6. Use of extrinsic evidence of a prior statement inconsistent with
another witness.
7. Prohibited use of extrinsic evidence to prove a prior statement or a
statement inconsistent with another witness.
8. Multiple prior inconsistent statements.
9. Suggestive Identification.
10. Omission in current testimony.
 1. Prior inconsistent statement

1/1/13 1/1/13 1/2/13 5/1/13 Direct Cross-examination

2:30 am 3:30 am 11:00 am. 10:00 am.
101 8TH St. 101 8TH St. Police PH County
off. Joe Bob Writtin Stmt. Dept. Court;
off. Jim Bob Det. Testimony
Gordo

The car was It was a The car The car The car was
red red car was was blue blue
(P1/L2) (P4/L12) red (P33/L222)
(P111/
L2)
 2. Prior omission

1/1/13 1/1/13 1/2/13 5/1/13 Direct Cross-examination

2:30 am 3:30 am 11:00 am. 10:00 am.
101 8TH St. 101 8TH St. Police PH County
off. Joe Bob Writtin Stmt. Dept. Court;
off. Jim Bob Det. Gordo Testimony

It seemed I saw the

like the truck run
truck ran
the red
the red
light light
(P65/L12)
 3. Prior consistent statement to rebut an implication
of recent fabrication
1/1/13 1/1/13 1/2/13 5/1/13 Direct Cross-
2:30 am 3:30 am 11:00 10:00 am. examination
101 8TH St. 101 8TH am. PH County
off. Joe Bob St. Police Court;
Writtin Dept. Testimony
Stmt. Det.
off. Jim Gordo
Bob
The truck was It was a The The truck The truck I don’t
blue (P1/L4) blue truck truck was green was blue remember
(P2/L2) was (P18/L9) saying…or, I
blue never said that
(P113/
L22)
4. Prior consistent statement without an implication
of recent fabrication
AKA HEARSAY
1/1/13 1/1/13 1/2/13 5/1/13 Direct Cross-
2:30 am 3:30 am 11:00 10:00 am. examination
101 8TH St. 101 8TH am. PH County
off. Joe Bob St. Police Court;
Writtin Dept. Testimony
Stmt. Det.
off. Jim Gordo
Bob
I did not I did not I never saw
see the see the the woman
woman woman
(P1/L7) (P11/L7)
 6. Use of extrinsic evidence of a prior statement
inconsistent with another witness
1/1/13 1/1/13 1/2/13 5/1/13 Direct Cross-
2:30 am 3:30 am 11:00 10:00 am. examination
101 8TH St. 101 8TH am. PH County
off. Joe Bob St. Police Court;
Writtin Dept. Testimony
Stmt. Det.
off. Jim Gordo
Bob
Jorge was Jorge Jorge was I don’t
drinking all had not drunk remember
night long about saying…or, I
(P1/L8) six never said that
drinks
at the
bar
(P1/L4)
YOU CAN BE PROHIBITED FROM
PROVING THE PRIOR STATEMENT

If the witness does not say that he did not make

the prior statement or that he does not remember,
IT IS PROHIBITED TO PROVE THE PRIOR
STATEMENT WITH EXTRINSIC EVIDENCE.
It is also PROHIBITED to prove the prior
statement with extrinsic evidence if during cross-
exam the witness admits to making the prior
statement.
 7. Prohibited use of extrinsic evidence to prove a
prior statement or a statement inconsistent with
another witness

1/1/13 1/1/13 1/2/13 5/1/13 Direct Cross-

2:30 am 3:30 am 11:00 10:00 am. examination
101 8TH St. 101 8TH St. am. PH County
off. Joe Bob Writtin Police Court;
Stmt. Dept. Testimony
off. Jim Det.
Bob Gordo
I did not see Jorge had I saw the
the woman about six woman
(P1/L29) drinks at
the bar. I did not see
(P6/L2) Jorge drink
anything
 8. Multiple prior inconsistent statements

1/1/13 1/1/13 1/2/13 5/1/13 Direct Cross-

2:30 am 3:30 am 11:00 am. 10:00 am. examination
101 8TH St. 101 8TH Police PH County
off. Joe Bob St. Dept. Court;
Writtin Det. Testimony
Stmt. Gordo
off. Jim
Bob
I did not see I heard I think he I saw him I did not see
him shoot the the shots is the one shoot my him shoot the
gun and I saw that shot friend gun
(P2/L2) my friend at my
fall friend
(P1/L2) (P81/L21)
 9. Suggestive Identification

1/1/13 1/1/13 1/2/13 5/1/13 Direct Cross-

2:30 am 3:30 am 11:00 10:00 am. examination
101 8TH St. 101 8TH St. am. PH County
off. Joe Bob Writtin Police Court;
Stmt. Dept. Testimony
off. Jim Det.
Bob Gordo

He was skinny He was I heard He was I am sure it is He was skinny

and tall and he about 6 ft. he was latin him. I can and tall and he
ran away from tall and he arrested american remember his ran away from us
us very fast was skinny and I with a face. very fast
(P2/L12). and he ran saw his beard and (P2/L12).
down the photo a tattoo of
alley away on the tears on his
from us news face.
(.P6/L1) (P110/L (P154/L2)
2)
 10. Omission in current testimony

1/1/13 1/1/13 1/2/13 5/1/13 Direct Cross-

2:30 am 3:30 am 11:00 10:00 am. examination
101 8TH St. 101 8TH am. PH County
off. Joe Bob St. Police Court;
Writtin Dept. Testimony
Stmt. Det.
off. Jim Gordo
Bob
Jorge had I did not
about six see the
drinks at woman
the bar (P1/L29)
.(P6/L2)
 Cross-examination

“You can’t always get what you want,

but if you try, sometimes, you just
might find…you get what you need…”
Mick Jagger
 jury’s feeling
Bc-before cross

WITNESS
(Poor SOB)

Lawyer
(Asshole)
 Jury’s feeling
Ad-After done

LAWYER
(Good Guy)

WITNESS
(Asshole)
 OTHER EXCEPTION STO THE RULES
NEVER ASK A QUESTION
&
NEVER USE CONCLUSIONS
Short or Tall:
How TALL was the man? 5’8”
CLOSE or Far:
How FAR AWAY was the car? 8’
Big or (Small):
How big was the knife? 7”
 misdirection
• The three Question Grammar
Quiz.
• Getting the witness to use my
language when they don’t want
to. “SEX or MAKE LOVE” v. “RAPE”
• DANGER: Sometimes the magic
works, sometimes it doesn’t.
• Have a SAFE HARBOR!
 NEVER EVER BEHAVIOR
• THE GREETING: Hello Mr. Witness it is so nice of you to be
here today. Can I get you some coffee and doughnuts?
Would you like Blah, Blah, Blah…
• THE ARGUING: “You are not sure who attacked you?”…”Yes I
am, it was your client.”…”Well you can’t be 100%
certain?”…”Yes I can his face is burned into my memory
forever.”
• THE ATTACK: “You are old aren’t you? You don’t see as
well as you used to? You need glasses? Without your glasses
you can’t see very well? You did not have your glasses on that
night, ISN’T THAT RIGHT?” “Yes, but I only need them for
reading.”
• The dialogue: Never answer a question from the witness.
• Help me your honor: Never ask the judge for help.