Let’s get to a different subject.
“The Missing Evidence”; Okay, this is core, this is critical. So many cases come alive because of missing evidence. Your cross exam questions are not in the police report. Okay. You’ve got to know what you’re dealing with. You got to know your subject matter but you’ve got to know the police officers write down everything they see bad or wrong. When I look at the police report I’ve got about a 100 things I’m looking for and if they didn’t mention them I assume my client did them correctly not of that I’m looking at the DVD also. When you ask a question, you got to block the retreat of an officer to cure the problem.
Here’s how you block the retreat. Officer you have made stops or you would ask the driver if they were on the phone, or texting or distracted, you say you blocked the officer from saying he hasn’t done it before. If your client was weaving, you would say “did you investigate whether my client was doing one of these things?” “Did you asked my client why he was weaving?” In the past you have. I often say in other reports you have written you see, “yes I have” “in other reports you have written that people had a problem walking and now the reports you’ve written this this this this and now the reports, I’ve got a hundred things about prefaced with in other reports” and then I say “in this case, it didn’t have that problem” What not to ask what not to do different subject.
Avoid exponential damage; don’t rehash the direct, please don’t rehash the direct, prosecutors they’re experts at this, not at rehashing directs, they’re experts at putting on a case, that prevail sells the deal before we get to talk, that also testifies, that is great, then they play the DVD, that takes about an hour, then they go over it all again. So three times the juries heard which you’re about to cross examine on and then the normal ineffectual lawyer come in and just chronologically go through the DVD again so that’s the 4rth time they’ve heard the same evidence. Please don’t do that. Go through the missing evidence.
another lawyers in Dallas was a legend and he had manual, yellow pages but I sat through trails with him and one interesting thing he would do, he wouldn’t do a chronological cross and he would not have any order to his cross. What do I mean? He had his pages, he flipped though his pages, he starts at the bottom not the top and go up and then he flipped to different page and then he moved around from page to page. Okay? So that’s how you cross. You don’t let the witness know exactly where you’re going with your next question. If you do nothing else start the bottom of the page rather than the top to cut out that chronology.
Evidence hurts more when it is rehashed during your cross. If you don’t think that’s true you haven’t tried a case. A futile attempt only strengthens the witness with the jury. Saying nothing will frequently have a better result in hours of questioning, 1903. Now think about that, there’s a risk award analysis for cross examination. We all know that I teach that you should know it, there’s a risk reward for every question that you ask. Professional self-restraint enables a lawyer to pass by all opportunities which may give a witness a chance for successful fencing. Well that’s the language of 1903 isn’t it? We’re sure it is but don’t give the witness a chance to cure the case.