Cross Examination Prep for the Client

STAY IN THE BOX

Surprisingly, cross examination begins with our Direct Examination. What we are practicing on direct is “staying in the box.” The box is the elements of the crime that the prosecutor is trying to prove. “Intent.””Location.” “Illegal Act.” Whatever element of the crime is in dispute, that becomes part of the box. We Do Not Ever Answer Outside the Box.

WHAT HAS ALREADY BEEN SAID:

Credibility is how you win the cross-examination game. The problem is that the prosecution will have access to any statement you made previously. That can be any statement that we are unable to suppress. A statement you gave to your MOM. A statement to the police. You must answer truthfully. If we are disputing a previously made statement, we will have to be ready for what the Government Attorney knows to be true.
For example, if a client is on the stand and he has previously admitted to the authorities that he touched someone, but didn’t admit to an inappropriate or illegal touching, we are not going to say that “I intended to touch her inappropriately.” That is the baseline and line that we never cross. We won’t admit that we intended anything inappropriate in the touch.

LISTEN TO THE QUESTION:

The key to answering the question in the RIGHT way is to listen to the question. Say, unfortunately, you admitted to touching her, but it was an accident. You will have to admit that you touched her, but you must listen to the questions. The Prosecutor will ask you questions to make you react emotional and to start freely talking. You must review your statement to make sure your answers are in line with what you said previously?
“You touched her didn’t you?” -Yes
“You touched her her hand, didn’t you?- Yes
“She touched your shoulder?”- Yes
“You touched her after she touched you?” – Yes
“You asked her about her personal life, and going to a club, right?” – Yes
“You noticed she was wearing sexy clothes, right?” – NO (you may have notice she was wearing a type of clothes, but NOT SEXY) (Outside the box)
“You felt like because she was inappropriately dressed and meant you could touch her, didn’t you?” – NO

These are an example of the types of questions you might see. You will see that they are all in a “yes/no” format. It is best for you to answer truthfully, yes or no, to each of these questions.  Explanation are not what we want. If we want to do that, we will do it when I come back to the stand. If I need to rehabilitate you, I will do that on redirect.

See the in the questions, there are a series of yes answers. They may also ask you a series of questions that sound the same. This is called looping. They want to get you into a rhythm of saying “yes” or “no” to a series of questions. After you are acclimated to the answer, they will try to throw in a opposite type of question. They will try to trip you up and make you seem confused.

NO EMOTIONS

You must remain calm when you are answering the prosecutor. YOU WILL NOT ARGUE WITH THE OTHER ATTORNEY FROM THE STAND. The judge and everyone else in the Court sees the prosecutor as an officer of the Court and someone that is respected. They see you as a potential criminal. You can never win in an emotional battle from the stand with the Officer of the Court. If you force the Judge to reprimand you from the stand, we are looking bad. You lose your credibility, which is the only reason we put you on the stand, when you get emotional and argue.

Article 32 Transformation in the Military Sexual Assault Justice System

The system has changed. I first came into the military in 1985. As a single enlisted Soldier I had an overseas tour in Germany. The climate of the US Army was post-Vietnam era, filled with Vietnam Era problems. Drugs and Discipline were the main concerns.

Sexual Harassment and Sexual Assault has begun to have a significant impact on all four services. The interactions of men and women have created a fairly balanced military and has brought about positive changes in the mission of the military.

There has also been significant impact on the military justice system.  The changes to the Preliminary Hearing system has destroyed one of the protections for a military member. Formerly Preliminary Hearings, with a neutral military officer presiding, gave a raw picture of what the evidence would produce at trial. This type of opinion gave both the prosecution and defense a good idea of how valid the evidence would be at trial.

Now, Congress has replaced the system of real preliminary hearings with a “rubber stamp” straight to trial. The preliminary hearing officer is JAG officer that is really their to review the investigative matter. This is a documentary hearing where the prosecution rarely calls witnesses and the defense has no reason to call a witness. They don’t want their case to be seen at this point. Although the need for a preliminary hearing remains, they either need to serve a function or should be abolished as a pro forma and archaic view of justice.