CROSS EXAMINATION

OF POLICE OFFICERS
AND DETECTIVES: A
TACTICAL GUIDE

Presented By:
Jeffrey T. Schwartz, Esq.
225 Broadway, Suite 2100
New York, New York 10007
Outquick@aol.com
212- 766- 8020
 LAW OFFICES OF JEFFREY T. SCHWARTZ
ATTORNEY AT LAW
THE TRANSPORTATION BUILDING
225 BROADWAY, SUITE 2100
NEW YORK, NEW YORK 10007
Tel. 212-766-8020
Cell 917-363-4433
Fax. 212-766-8039
E-MAIL OUTQUICK@AOL.COM
Admitted in New York & New Jersey

CROSS EXAMINATION OF POLICE OFFICERS &

DETECTIVES

-Most difficult skill for trial attorneys to master:

- Most effective trial attorneys are those that DO master cross.

-Don't fret if not as skilled with it yet as would like to be.

-I don't personally believe in “naturals” although some take to it quicker

than others.

-It is a skill and art that must be studied, learned and practiced to do it
correctly and effectively. You can learn to be effective to some degree with
practice even if don't ultimately learn to feel comfortable with the process.

-You will improve until the day you retire or die.

-If you're not steadily improving you're not doing it incorrectly.

 - It is unlike direct in that your dialogue with the witness cannot be FULLY
mapped out and REHEARSED with a cooperative witness.

- It is unlike opening and closing arguments which are in effect a prepared

speech which if carefully and conservatively written can be done
uninterrupted and without objection.

- Stated practically, It is especially difficult for the simple reason that no

witness testifying on the witness stand under oath wants to look stupid,
silly, unprofessional, incompetent or dishonest.

- It is also difficult because our upbringing as civilized, polite and friendly

human beings teaches us to avoid this type of in-your-face confrontation.

- Heard it compared to a knife throwing act.

- Only on cross examination the person throwing the knife isn't a friend who
IS NOT trying to hurt you.

GENERAL SUGGESTIONS:
- Start with topics that can generally be done almost every trial- safe topics-
helps you calm and get into your groove. (ie. cops taught to testify and do it
regularly).

- Set yes and no answer guidelines

- Ultimately INSTINCT will be very important for new matters so do as

many cross examinations as you can to develop those instincts.

- I don't agree with NOT crossing EVERY witness.

CROSS EVERY WITNESS:
- Always SOME point to be made with that witness to advance your theory
at trial

- Even if point is a small one sometimes small points are all you have.

- Advocates job is to make small points seem big (make mountains out of
mole-hills).

- Use your attitude, tone and demeanor to suggest to jurors that point is
important.

- If you don't convey points are important jury won’t believe they are.

- If it’s not important to you won't be to them, the jurors

Ultimate goal is to try to make every witness your own

- Use every witness to prove at least 1 point of your theory(the more the
merrier)

- Remember to mention and reference that point on summation.

- Argue that “even prosecution witnesses support our defense in the

following ways”

- If you can't seem to get comfortable with cross:

- Get a colleague and practice.

- Practice out loud.

- Practice on friends in everyday life situations.

- WON’T MAKE YOU POPULAR WITH FRIENDS BUT WILL MAKE

YOU GREAT CROSS EXAMINER.
Moving on now to specific topic of crossing police officers & detectives

- Should treat them like expert witnesses

- Because after all, when you think about it, aren't they perceived as being
experts on law enforcement?

- Or at the very least won't they attempt to appear as such to jurors?

UNDERSTANDING PO MENTALITY: (the nature of the beast)

-Not highly educated

-Very intimidated by lawyers- BUT ALSO HATE LAWYERS

-Tough on street but out of element in courtroom

-Try to watch your PO testify on another case if opportunity arises to get feel for
him/her specifically

RULE-

Don't shmooze cops in hallway. Avoid letting them get friendly towards you or
feeling they are your equal. Will make them more comfortable and relaxed on
stand when testifying. Will make them more difficult to control.

- Useless! They are going to try to persuade jurors as best as they can anyway

- Takes away your intimidation advantage.

- Use to being in position of power and not used to having authority questioned.

- Aggressive questioning throws them off balance.

-They are used to chain of command- use authority as attorney to get witness into
“yes sir/no sir” agreeable mode.

STYALISTIC SUGGESTIONS:

-Be condescending and sarcastic to them in friendly way with smile- ticks them
off

-Jurors don't like or trust what they perceive as nasty, mean or power hungry cops.

-Establish your authority and supremacy from outset with knowledge of police
procedure, how system works and knowledge and familiarity with paperwork.

-Start cross with compelling point you can't lose

-Shakes witness up right off the bat

-Establishes supremacy immediately shows witness it’s easier to cooperate with

you than not. The path of least resistance.

- Cops YEARN to get on and off stand AS QUICKLY AS POSSIBLE

UNDERSTANDING COPS RESPONSIBILITIES AND

OBLIGATIONS:

-Distinct advantage if ever been investigating ADA.

-Get a copy of Patrol Guide (ie. inventory searches, checkpoints, when summons
issued).

-Talk to ADA friends, ex and current cops.

-Watch news – keep finger on pulse of community attitudes.

- know jurors attitudes towards police officers at time of trial.

-More often than not there exists a general mistrust of PO's and the way they
operate (and you will have chosen jurors with a healthy degree of that mistrust)
DETRACT FROM PO'S EFFECTIVENESS ON STAND:

- Testified many times before- if PO says no, then flip to inexperience of

officer

-Taught to testify in court as early as police academy

-Brush up courses and memos in precinct all the time and in regular intervals

-Trained specifically in how to enhance cases and create evidence (taking

statements)

-Wearing uniform to court merely a prop to enhance image of authority

MUST REVIEW PAPERWORK WITH FINE TOOTH COMB

- As with all experts must know documents and subject matter AT LEAST as
well as W.

-Cops prone to mistakes and sloppy paperwork due to:

- Rush, overwork, overtired, carelessness

- Lack of formal education and higher education

- Repetitive nature of duplicate forms

- Confusion over many different cases in caseload (you

-- have 1 they have many) ie. Mix-up over knife or gun
CROSS EXAMINATION FORM AND STRATEGIES:

-Make statements don't ask questions (leading questions a must) ISN'T IT A

FACT......

-Avoid who, what, when, where and why form questions (save that for direct)

-But make statements you can back up with discovery docs, statements of other
witnesses or physical evidence. (Remember: must always have good faith basis to
ask question).

-Have flow and direction. Cross is not the time for discovery.

-Know exactly what you want to get and where you want to get to (ie. GPS
navigation)

-Short, sweet and to the point

-Only a few strong points- knockout punches not jabs (unless jab establishes an
important small piece in the larger knockout puzzle)

-Have follow up no matter what the answer- never want to be shut down by
witness

CROSS EXAMINER DEMEANOR:

-Never let them see you sweat

-Always appear as if answer you got was one you wanted and expected

-Always maintain calm demeanor and good poker face

-Believe in the points you're making- will convey that message to jurors
THINGS CRITICAL TO KEEP IN MIND:

-All questions MUST have a point and advance the theory of your case- if not
don't bother

-Never ask a question you don't know the answer to (get answers during hearings)

-Know when to stop- beware of the one question too many

-Stop when you're ahead

-Don't hold out for Perry Mason moment- it isn't coming. It never does.

-If you score a knockout punch don't beat a dead horse. Leave it to be beaten to
death on your summation.

-Why? Don't give witness the opportunity to correct knockout- hope adversary
forgets on redirect. You will be surprised how often they do.

-Don't ask question just to hear yourself speak- you don't get paid by the word

-Consider lunch, evening and weekend breaks and how it will leave jurors
thinking and how it might affect adversaries additional preparation time.

- Trial attorneys must be control freaks- like scud missile system-

monitor horizon for any and all possible threats and blow it from
sky.

- EVERYTHING, EVERYTHING, EVERYTHING THAT HAPPENS IN

COURTROOM IS SOMETHING TO THINK ABOUT IN-SO-FAR AS
HOW IT CAN POSSIBLY EFFECT YOUR CASE AND THE JURORS
PERCEPTION OF YOUR CASE.
THINGS TO AVOID:

-Never get snippy or argumentative with witness- you will appear as if losing
control of witness

-Never mock or ridicule witness- might turn off jurors

-Don't make condescending gestures at jurors while cross examining witnesses

-Don't demean adversary or court while cross examining

WHAT TO DO IN COURT DURING WITNESSES DIRECT

EXAMINATION:
LISTEN- LISTEN- LISTEN!

-Time to plan cross is NOT during witnesses direct examination

-Cross should already be mapped out based upon discovery of prosecution or your
investigation

-Listen on direct for OTHER matters arising for first time and try to acclimate into
your cross theory and questioning already laid out. (Gold dropped in your lap).

-To be most effective must know all witnesses prior testimony and statements
COLD in order to make most effective use of MEANINGFULL inconsistencies

BE A STRATEGIST AND TACTICIAN AND NOT MERELY A

TECHNICIAN (THE WORDS OF THE GREAT DAN MCCARTHY)

-Be clever with questions posed. Try to box witness in.

-Don't telegraph where you're heading if possible

-When reviewing Rosario material (every single mark) think through how each
point might play itself out in front of the jury. Be prepared to go in any direction
that witnesses answer takes you.
- Have your cross document in a very easy to locate and usable order. Must
develop your own method.

- Second seat is great for this. (he makes snowballs and I throw them)

- I separate documents in manilla folders by witness.

General and basic principles:

− Be interesting and not boring

− Don't let adversary objections or court interruptions sidetrack you

− Get back to point at some point

− If at first you don't succeed try again

− If point is important enough to make in first place it's important enough to

get back to and make after distraction or failed attempt.

− On the other hand- if getting nowhere its OK to let it go rather than looking
silly, desperate and losing credibility and authority with jurors

A similar definition as US Supreme Court Justice Potter Stewart's definition of

pornography can be used to describe a bad cross examination
I can't explain exactly what it is but I know it when I see it.

You will know and feel when you are getting nowhere with a line of questioning
during cross

- It’s all in the setup- you should by trial know case better than anyone, including
the judge

-Don't get discouraged if Judge instructs you to move on to something relevant

-You may ask court if objection is to substance or form

Of course you MUST abide by all court directions but always try to do your
thing and make your points. Sometimes all you can do is preserve issue for
appeal and move on. (issue is violation of confrontation clause- of right to fully
and fairly confront witness)

- Lots of discretion with trial judge so don't overdue. Will only alienate the judge.
Preserve record for appeal and move on

-DO cross heavily: on lack of evidence on investigative techniques and methods

not employed and used

- Makes cops look incompetent and advances “rush to judgment” defense if

appropriate

- Beware to avoid “why not” question. Cop will always have excuse

MATERIALS TO COVER MANY MANY TIMES:

Mauet on trial technique for basic form and structure of cross exam questions

Richardsons on Evidence

Wigmore on Evidence

Get transcript of a great cross examination and review it 50 times

Read it out loud 50 times so you get used to mouthing the form of the questioning
Watch video demonstrations of effective cross examinations and try to repeat and
imitate

Why?
- Cross examination is all about impeachment
− Must know proper ways and types of ways to impeachment

More weapons you have at your disposal more effective you will be
which is why you must also know the rules of evidence and forms of questions for
the items you will use most often during cross examinations of PO's:
EVIDENTIARY ISSUES:

-Prior inconsistent statements: Grand Jury, hearing transcripts

− with police paperwork
− juxtapose with testimony of other cops
− juxtapose with physical evidence
- Must know foundation questions
- Learn how to milk it in setup

If Detective took confession and things are off, blame cop for making up
statement.

Remember:

- That case law supports option of you calling cops and being allowed to cross
immediately- by virtue of their position they are deemed HOSTILE WITNESSES.
No formal foundation for other hostile witnesses required.

-PO has no sandoval protection for prior bad acts

- It is possible to set up foundation to get PO's prior CCRB and IAB complaints.

In conclusion:

I wish you all good luck! Keep up your good and very important work!

I hope this was helpful and not too boring or simplistic

If I can ever be of help to any of you- call me or email me using the contact
information provided in your materials.