Keys to Winning Criminal Trials

By · September 9, 2009 · Filed in Criminal Cases

Part of being an effective trial lawyer is the ability to cross examine witnesses. Usually there is at least one witness that you need to effectively impeach and demonstrate that they are wrong. And usually there is at least one witness you need to show that they are just not credible or believable. Many times you won’t be able to find physical evidence or other circumstantial evidence that contradicts them. You have to show that there word simply can’t be trusted.

A lot of times you can show a witness is wrong by physical evidence or circumstances that cast doubt on their accuracy. You may be able to show that their positioning makes it impossible for them to have seen what they claim. Or you may be able to show that the lighting was such that they could not have seen what they claim. Eyewitnesses are frequently wrong and a good lawyer searches the situation for physical proof or physical circumstances that prove that they are most likely wrong. A witness like that can be impeached gently. You don’t have to accuse them of being a liar, you just have to show them to be wrong. Sometimes when presented with the proof they will cave in and admit they could be wrong.

Sometimes you need to bring in an eyewitness expert to talk about the psychological phenomenon and the physical situation to demonstrate to the jury how witnesses tend to get things wrong. Witnesses want to be helpful and that bias causes them to exaggerate their certainty and makes them resistant to admitting that they just don’t know what they claimed to have known. These eyewitness experts are usually psychologists who specialize in the social science research of human factors, such as lighting and vision, and the psychological factors that go into witness observations.

More difficult to cross examine is the witness where there is no physical evidence or psychological phenomenon to contradict. They simply are accusing you of doing something and it is their word against yours. They may have a grudge against you, they may just not like you, or they may just be nasty humans. In any event you have to impeach them or you will be convicted.

The first thing to do is figure out what their motive is to lie. But once you do that you still have to attack. One of the best ways to impeach a witness like this is to impeach they with prior inconsistent statements. In many cases a witness will give two or three statements to the police or other agencies. Nowadays most of these statements are tape recorded, either by video or audio or both. A lot of times the initial statement to the police will not be recorded but by the time social services or the detective interviews them they will be recorded.

The first thing you do is to get every statement possible. In a sexual assault case make sure your lawyer gets the medical report from the sexual assault response team. That report always has statements made by the alleged victim and many times they are different than what they tell the detectives later. Later on you can add the preliminary hearing to that list of times they have given a statement.

Second you need to have all of the statements transcribed. Once you have a written transcription of all of the statements you will have the tools to impeach them with inconsistencies in their statements. This is where the lawyer, and the client, should go over the statements several times and compare what they said on each topic. If your alleged victim is not telling the truth I guarantee you things will be different. Sometimes the differences are subtle and sometimes they are huge.

If your lawyer is good they will be able to catch the witness in some unexplainable inconsistencies. Once a witness has been caught and they realize it they lose confidence and will likely show behavior that will cause a jury to wonder why they couldn’t keep the story straight.

You can help your lawyer by reading the various accounts carefully and pointing out the inconsistencies by page and line. Sometimes your lawyer won’t agree that what you have found is significant but your lawyer will appreciate the help.

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