Blood Draw Procedures 11th of 13
More cross examination is suicidal than homicidal. Let that rest in your lap after the conference, your cross examination, you’re killing yourself, you’ve got to be careful. I didn’t say that, it was a joke made back in 1903 and it is still true today. I’m looking at some judges here and then it is in their heads. You see these things, you got to accept them. A fact that came to light, now this is critical here, “A fact that came to light during cross examination instead of direct multiplies its importance” so if a negative fact comes to light during cross examination, you’ve hurt yourself exponentially, that’s why you have to be careful with every question, that was 1903 that wasn’t today. “Success is knowing when to stop” Don’t give away your final argument. Now I know we have case, lawyers are trying cases across the board. You know how many questions are my normal cross examination of an officer in a DWI case? I have an average of 40 trials a year, 40 jury trials, 15 questions, 15 questions is my cross examination of an officer, a very rarely more than 20.
Sometimes 5, “Success is knowing when to stop” don’t give away your final argument. I can argue better than I can cross exam. That’s what I tell myself. All I need is a little ammunition for my final argument. If perchance you obtain a really favorable answer. Leave it and pass quietly to some other inquiry, 1903. Leave it, you see during cross examination I have a separate piece of paper over here FA not FU, FA on this side right over here. Final argument and I’m noting that right there, okay. Prosecutors often pick up on that I think but don’t wait till the end of the case to develop the final argument, you’ll forget, make a quick note, you don’t write out of page, just a quick note. “The inexperienced examiner in all probability will repeat the question with the idea of impressing the admission upon the hearers instead of reserving it for the summing up”, 1903. The inexperienced lawyers will give away their final argument is what they’re saying. You’ll give away your case, folks don’t think that witnesses are not intelligent don’t think the prosecutors are not intelligent the defense attorneys are not. They can clear up issues. If you’ve got a good issue leave it and hope they don’t clear it up, hope they forget about it.
The inexperienced examiner in all probability repeat the question with the idea of impressing, If I say it twice it means more right? They are listing more. And will attribute it to bad luck that the witness corrects his answer or modifies it in some way so the point is lost. The point is lost and the final argument is lost. Don’t open the door, we are switching into a different subject. Criminal law 101, trial law 101, don’t open the door. What have you excluded? What is not admissible? Now your cross examination officer can open the door to all of this. Prosecutors are on full alert for this, okay. If you kept by the test score, if you kept PBT, if your kept out statements and you can open the door on your cross examination. Often less is more, you can lose your case on cross, that’s what we’re talking about. Questions that you asked give the prosecution opportunity, remember the prosecution is an intelligent group. They’ve tried more cases than you have folks, as defense attorneys; they’re in the court room every week. Opportunity to insert overlooks points. To reply “Oh yeah I’m glad you brought that up, I forgot this”. Replay negative testimony, rebuild the officer’s credibility, and neutralize your final argument. Now let us switch over as a defense attorney or prosecutor. Did they open the door for you? Is there’s some that you want in that the judge says is not admissible that they’ve opened the door to. If that happens you have to preface your question with in response to the statement or in response to the answer. You got to let the judge know that they’ve opened the door.
