Killer Cross-Examination — A Seemingly Lost Art

The art of cross-examination has become somewhat of a lost art today, with a record number of cases pleading out before trial and with scores of young, former state prosecutors becoming defense lawyers, having never had the chance to develop complex cross-examination skills before setting out to defend people charged with crimes.  But make no mistake: if your lawyer cannot cross examine effectively, whether it be at a pretrial or post-trial hearing or during a trial, you are basically hiring a glorified clerk to defend you in one of the biggest moments of your life which will affect your career, your future and the future of your family.  Because a lawyer who cannot cross-examine will either lose your case or push you into a plea deal you may not want.  A lawyer who can, on the other hand, destroy a witness’s credibility on the stand, destroys the government’s credibility, its evidence and the chances of you being convicted of a crime.

Top New York criminal defense attorneys and federal criminal lawyers know that developing a killer cross-examination requires much more than simply challenging the witness’s prior statements supplied by the prosecutor; instead, the best defense lawyers get creative, find materials that the government could not possibly have known about – or prepare their witnesses for.  Because in order to even have the opportunity to truly neutralize a prosecution witness a top defense lawyer must put him in a situation in which he has to actually think on his feet.  Once taken out of his comfort zone, once the government playbook is taken away from the witness – all hell can break loose.  As I have said in my opening statements during trials about cross-examinations of government witnesses, “The evidence is not just what comes out on direct examination by the government; the cross examinations count too – and unlike the direct examinations, as you’ll learn during this case, the cross examinations are not carefully scripted endeavors that come from prepared outlines.  They are spontaneous.  They test the witnesses by making them think on their feet.  They are the crucible of truth.”  

The Witness Needs To Be Made To Feel Uncomfortable — From Question 1

To begin, I usually start my crosses with questions based on some surprising and damaging answers the witness gave during his just-completed direct examination.  The jury expects the defense lawyer to immediately strike back out of the box on these important issues; to delay these questions until further down the road tells the jury – and the witness – to expect a pedestrian cross-examination.  I want the jury on my side from question one.  And I want the witness knocked out of his or her comfort zone immediately, not even five minutes into the cross.

A full-blown investigation into every last bit of background of a witness will usually yield some gold for cross-examination. And the topics a top criminal defense lawyer should be going into are the ones of which a jury needs as ammunition when arguing for an acquittal during jury deliberations; i.e., the cross-examinations should be designed to support the defense theory of the case.  In the assault trial of WPIX newsman Vince DeMentri, the “victim” claimed he was assaulted by my client.  An investigation revealed the “victim’s” poor financial shape and his ultimate desire to sue Mr. DeMentri for money damages after the trial.  After a few minutes of being batted around on cross, the witness suddenly decided he needed a translator despite testifying in English on direct.  Ultimate result: a humiliated witness and a ten second acquittal.

Cross-Examinations Should Be Consistent With the Defense Theory of the Case

When cross-examining government witness Frank Fappiano during John Gotti’s trial, I needed to establish for the jury what I already knew: that Fappiano was very close to Sammy Gravano, the infamous killer/government witness who killed 19 people – and spent only 5 years in prison.  It was important to establish that Fappiano and other government witnesses close to Gravano wanted the same result from the government: testimony in exchange for almost instant freedom.  Fappiano knew where I was going with this too and his attempts to claim he had no idea what Gravano received at sentencing were laughed out of court.  Further investigation revealed that the “family man” Fappiano – who professed great love for his wife and children during direct examination – was carrying on some kind of lovefest with his lawyer from prison!  In my investigation I discovered these letters to and from his lawyer and by the conclusion of his testimony, Fappiano was rendered utterly unbelievable as a witness.  Finally, I forced Fappiano to explain in excruciating detail the various types of beatings he had given to his victims, from a “crack or a slap” to a “restricted” beating and all the way up to a “severe” or “hospital” beating.  The jury was stunned at his cavalier attitude towards violence — and the government’s apparent willingness to give him his freedom after such a short stint in prison.

The Gotti trial also featured my cross-examination of radio host Curtis Sliwa; my digging up of decades of Sliwa’s lies told to the media about his supposed exploits as founder of the Guardian Angels (via a microfiche search at a library) resulted in his devastation as a witness and, according to the media, “When Sliwa finally wobbled out of the witness box, he seemed nuts.”  More promised “unimpeachable” witnesses from the government turned to slop after being cross-examined.

No Stone Should Go Unturned When Researching A Government Witness For Cross-Examination

Recently, my investigation of a purported victim of violent extortion – captured on tape – resulted in a probationary plea offer to my client in a federal, Southern District of New York extortion case.  Subpoenaed bank accounts and divorce records revealed numerous check-kiting schemes  and attempts to defraud his soon to be ex-wife – and the government’s case fell apart, despite the devastating nature of the recordings of the defendant.  Had we simply relied upon the materials provided by the government in connection with this witness our client surely would have gone to trial or taken a guilty plea with prison time included.

The more violent the witness, the greater the likelihood that the witness will explode on the stand if pushed hard enough – and destroy his own claims of being a new man, a calm man, a changed man.  Getting the well-prepared witness to that point, however, requires skill and tenacity.  I’ve even been threatened by a witness during cross-examination.  Not surprisingly, the jury did not convict my client after watching that display.  Of course, the defense lawyer doesn’t want to come across unlikeable himself or as a bully; instead, a top cross-examiner wants the jury to get behind him in revealing the dishonesty of the witness, to root for the destruction of the witness/bad man and the revelation of the coverup by the prosecutor of the true nature of its despicable witness.

Bottom Line: The Success of a Cross-Examination Should Be Determined Before the First Question is Asked 

There is simply nothing more important when making the decision to hire a criminal defense lawyer than to find one who has experience – and success – in cross-examining witnesses at the highest levels.  The difference between a good cross-examiner and a poor one can mean the difference between freedom and decades in prison.  And if the cross is written correctly, the experienced defense lawyer knows exactly how it will go even before a question is asked –because all questions are prepared to ensure a certain answer.  All questions should be supported with a document or some evidence which will force the witness into that desired answer.  As I told a reporter following my cross-examination of a client’s trial lawyer in a post-conviction hearing – which resulted in the vacating of a 27 year prison sentence – “When I first wrote the cross-examination I felt that I’d be walking him out of prison one day.”  That’s how a proper cross is written: not designed just to trip up and impeach the witness, but to act as a building block towards convincing the judge or a jury that the government’s case is based on garbage.  The same principles I have used in impeaching a witness in an assault case are the ones I have used in getting an acquittal in a $25 million federal fraud case.  If done correctly, very few if any witnesses can withstand a properly drawn cross-examination.  Call the federal New York criminal defense attorneys at the Law Offices of Jeffrey Lichtman to discuss your case today.