Presenting a live 90-minute webinar with interactive Q&A Cross-Examination Strategies for Hostile Witnesses: Optimizing Technology and Applying Psychology Tools TUESDAY, JANUARY 20, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: William E. Hammel, Partner, Constangy Brooks & Smith , Dallas Hessam Parzivand, The Parzivand Law Firm , Sugarland, Texas The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Cross-Examination Strategies for Hostile Witnesses, Optimizing Technology in Cross Examination, and Applying Psychology Tools “Cross examination is the great engine for getting at the truth.” - Ralph Fine
Hessam Parzivand William E. Hammel Owner Partner The Parzivand Law Firm Constangy Brooks & Smith 10701 Corporate Drive 1201 Elm Street Suite 185 Suite 2550 Stafford, TX 77477 Dallas, TX 75270 hp@parzfirm.com whammel@constangy.com
Rule #1: Never Forget Your Audience The spotlight is not on you, so don’t steal the show Keep it simple; make it easy for the factfinder Normal rules of cross examination apply • be clear, be brief, and then stop! Minimize the obtrusiveness of any technology used 7
Never Damage Your Credibility Attack the witness’s credibility without hurting your own • Otherwise, the jury is likely to sympathize with the witness and not the lawyer • Do your job and get out Let the impeachment facts speak for themselves • Have a good faith basis for every question you ask for impeachment purposes • Don’t imply facts that aren’t true • Don’t ask irrelevant questions to anger or embarrass the witness 8
How You Come Across Matters! Your demeanor and tone are important – most depositions are videotaped In trial, show the jury that the witness’s admissions are important – don’t keep your head down taking notes Juries expect cross examination to be somewhat confrontational, so deliver But, don’t go too far – juries identify with the witness more than the attorney … no one likes a bully! 9
Ground Rules Scope of Cross Examination: FRE 611(b) – at trial, cross examination is limited to scope of direct examination and matters of witness credibility Who May Impeach: FRE 607 – the credibility of a witness may be attacked by any party, including the party calling that witness Always videotape depositions unless cost is a concern or unless you know you are not going to trial 10
Framing Your Questions One fact per question – no compound questions No elaborate set-ups Build up to your conclusions fact by fact, question by question Each “one fact question” should be leading and restrict the witness to a yes/no answer Especially at trial, leading questions should consist of affirmative statements by you with which the witness merely agrees 11
The Don'ts Don't expect help from the witness. An adverse witness typically will not give you the conclusion you want, so don’t expect it Don’t ask that final question or otherwise elicit the witness’s self - serving explanation Don’t ask an impeachment question that calls for an explanation or opinion – you do that later for the jury Don’t trust the factfinder to understand the sequence of facts leading to the conclusion – again, you explain the significance later 12
Impeachment Discredit the witness by cross-examination about facts which reflect negatively on the witness‘s knowledge, truthfulness, or credibility Reveal bias or prejudice Prior inconsistent statements Show that expert testimony is contrary to recognized authorities Demonstrate that the testimony is unreasonable or improper Attack the credentials or qualifications of a witness 13
Methods of Impeachment BICCC Bias, Prejudice & Motive Prior Inconsistent Statements Conduct Probative of Untruthfulness • Character Evidence • Prior Criminal Convictions Competency, including the ability to perceive, recall, or relate 14
Limits on Impeachment Collateral Facts Rule: • Impeachment of a witness regarding collateral facts can only be done through intrinsic evidence • When a witness is cross-examined on collateral facts, the attorney is bound by the answer • You cannot contradict a witness with another witness or other extrinsic evidence – even if the witness untruthfully denies a fact, the answer must be accepted • You can press the witness within reasonable limits – the Court will usually decide if the impeachment is “worth it. ” 15
Collateral Source Rule Exceptions • Prior Convictions: FRE 609: For the purpose of attacking the credibility of a witness, evidence that a witness has been convicted … shall be admitted if elicited from the witness OR established by public record during cross-examination or thereafter • Bias: the bias of a witness (a collateral matter) may be established by extrinsic evidence, but only after first showing the evidence to the witness 16
Attacking a Witness Through Prior Convictions If the witness‘s prior conviction was for a crime involving dishonesty or false statement , evidence of that crime is admissible for impeachment purposes regardless of whether the crime was a misdemeanor or a felony If the witness‘s prior conviction was for a crime not involving dishonesty or false statement , evidence of the conviction is only admissible for impeachment if the crime was a felony – misdemeanors are not admissible Always subject to FRE 403 If a conviction is more than 10 years old, the probative value of admitting the conviction must substantially outweigh the danger of unfair prejudice under FRE 609(b). Must also give opposing party reasonable notice of intent to use 17
Showing Bias • Witness bias may be shown by a number of circumstances, including familial or employment relationship with a party, and negative relationship with a party, or a financial stake in the outcome of the litigation • FRE 610: evidence of a witness‘s "religious beliefs or opinions is not admissible to attack or support the witness‘s credibility precludes evidence attempting to show that a witness should not be trusted or believed because the witness lacked religious beliefs or had unusual beliefs FRE does not preclude an inquiry for the purpose of showing interest or bias because of religious beliefs • If a witness is impeached because of bias, prior sworn statements consistent with trial testimony are admissible 18
Attacking Competency • Demonstrate that the witness was unable to sense what he claimed to have – obstructed view, etc. • Show that the witness lacked the requisite mental capacity to perceive • Attack on the witness’s credibility, so it is a matter for the factfinder to consider 19
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