Chaptering Your Cross

Chaptering Your Cross
The whole kit and caboodle
Michael DeBlis III, Esq.

• Trial Lawyer
• Actor
• Author
• NCDC Graduate
• Collegiate Hockey Player
• Marathon runner

Chapter Method Defined
• Cross-examination is a series of small
discussions (chapters) on individual topics of
importance to you as the cross-examiner.
• It moves from topic to topic, not always in
chronological order.
• It seldom covers everything a witness might
know about the case.

• Chapters sometimes relate to each other.
• Sometimes the transition from one chapter to
another chapter happens unexpectedly.
• For those who like certainty, chapters have a
beginning and an end.
• The beginning and end of each chapter are
prepared before the cross-examination begins.

• The chapters are designed to maximize the
good evidence available.
• As a result, they don’t trail off and lull the jury
to sleep. Instead, they end on a “high note.”

• Think about it. A chapter that has not
accomplished its purpose using the best facts
available is not miraculously going to get
better through additional questions.
• If the best evidence didn’t work, then chances
are the second best evidence, or worse yet,
the unknown evidence, is going to go down in
flames.

• The individual topics within a cross-examination
are like the scenes in a play. Each chapter has a
unique purpose or goal.
• The chapter method of cross-examination is not a
foot loose and fancy free style. In this sense, it is
similar to the slogan on billboards in airports
throughout the country, “Winging it is not an
emergency plan.” Instead, the wisdom behind the
chapter method is that it is the optimum teaching
model.

• This is not to say that an attorney who doesn’t
use the chapter method of cross is destined to
fail. He may still score important points, but
not in any particular order. As a result, the
jurors will be left with the unenviable task of
reassembling the facts so that they make
sense to them and conform with their belief
systems – all in the name of a desperate
attempt to understand the points made by the
attorney. Sounds painful.

Chapter Defined
• Cross examination is a series of goal-oriented
exercises.
• Each of these exercises is a group of related facts
that is organized to establish one specific point
that advances the theory of your case.
• Each chapter consists of a series of leading
questions.
• Topics are not limited to a single chapter. Any one
topic may be presented through one or more
chapters.

Chapter Defined
• What are some examples of a chapter “goal”?
– To prove the existence of a fact;
– To build a solid body of facts that will allow the
jury to make a favorable inference;
– To introduce facts that will weaken or undermine
the jury’s belief in an alternative theory advanced
by your adversary; or
– To establish facts that discredit a witness.

Chapter Defined
• Essentially … a chapter gathers together a
group of facts that leads the jury to an
inescapable conclusion, even if that
conclusion is not admitted by the witness.
• Sounds sneaky, but it isn’t.
• Each chapter should advance an individual
theme that supports the theory of the case.

Definition of a Chapter Bundle
• A chapter bundle consists of related chapters
that, when read together, paints a full and
colorful picture of a topic.
• A single topic within a cross-examination may
require several chapters.

Chapter Method Gives Cross-Examiner
Control Over Topics
• The chapter method requires self-discipline. It
demands that the cross-examination be a
controlled series of questions designed to
satisfy a goal.
• The goal is to either:
– Support your client’s theory of the case; or
– Attack your adversary’s theory of the case.

Control Over Topics
• The beauty of the chapter method is that you
can select only those areas that you believe
are ripe for cross-examination and then divide
them into individual chapters.
• This ensures that only the topics that are
important to the theory of your case will be
discussed.

Control Over Witness
• The chapter method is critical for establishing
control of the witness.
• This is accomplished by grouping questions
into narrow fields.
• You can cross-examine hostile witnesses in
areas of your choosing without the witness
usurping control and steering the cross into
areas of his choosing.

Chapter Method Builds Support for
Your Theory of the Case
• There is a “proving” aspect to cross-
examination. When there is a gap in the story
being told by the witness on direct, you may
insert into the case facts which fill that gap
and “prove” some further aspect of the story.
• By adding certain facts to those already
presented, you can change the conclusions
that the jury forms.

Better Use of Available Facts
• The chapter method requires discipline. It
requires a deeper understanding and use of
facts.
• More thorough analysis of facts is required.
• There is a difference between knowing the
facts and analyzing the facts.
• You can know the facts without ever analyzing
them.

• What does it mean to “analyze the facts?”
– Compare the facts to one another;
– Reorganize and group the facts into bundles of
related facts, so that different or stronger
conclusions may be drawn from them;
– These bundles of related facts (i.e., chapters)
allow the jury to enjoy a real-time understanding
of their significance to your theory of the case;

– As a bonus, you can easily pivot and reorder the
sequences of your cross-examination on the fly.

Purpose of a Chapter
• A chapter is a group of leading questions
designed to accomplish a goal.
• The goal may be to:
– Highlight a fact;
– Dispute or undermine a fact;
– Introduce a new fact;
– Enhance or undermine the credibility of a witness;
– Assist the jury in understanding the importance of the
facts as they relate to the opposing theory of the case.

• A chapter is only worth doing if it advances
your theory of the case or undermines your
adversary’s theory of the case.
• The purpose of drafting a chapter is to use the
best available evidence to help the jury accept
the goal.
• In the process of establishing the goal, you
may establish several ancillary points.

• For example, impeachment by inconsistent
statement establishes the goal of showing that
the prior statement of the witness was more
believable than the statement made by the
witness in court on direct examination.
• Simultaneously, it discredits the witness by
showing that the witness has previously
testified in a manner inconsistent with their
current testimony.

• Each chapter is an organized sequence of
leading questions designed to put into context
the significance of the goal of that chapter.
• The cross-examiner must compile the facts
that relate to each other so that the jury does
not have to be left organizing an endless array
of facts in a way that makes sense to them.

Breaking Cases Into Understandable
Parts
• An entire case contains a voluminous amount
of information.
• A crime, auto accident, divorce, or anything
leading up to a lawsuit is not a single fact or
event, but a group of facts and events that
together form the case.
• Cases should first be broken down into their
individual components.

Breaking Cases Into Understandable
Parts
• The chapter method allows the trial lawyer to
divide even the most complex case into
smaller parts that are more easily digestible.
This allows the jury to gain a more thorough
understanding of the entire case without
suffering a migraine.

Developing Chapters: The Process
• One method for identifying potential chapters
consists of the following:
– (1) Divide the case into its pivotal moments. A
single scenario may consist of numerous events.
– (2) Divide the pivotal moments into their
individual parts. A single event may contain
hidden gems that may only be discovered when
analyzing it on a granular level.
– (3) Analyze the individual parts for helpful issues.
A single issue may require more than one chapter.

• Let’s apply these steps to a commercial case
involving an allegation brought by
shareholders that corporate executives
deliberately concealed from them the
company’s anemic financial health.
• This case study comes from the creative
genius of Larry Pozner and Roger Dodd in their
runaway best-seller, “Cross Examination:
Science And Techniques.”

• This case involves the prosecution of the
corporate executives. You are the Assistant
U.S. Attorney.
• Suppose the theory of the case is that in order
to keep its share price up, the corporation
deceived the market.

• This theory depends upon a great number of
facts:
– (1) The CFO met with an outside auditor who
reported very troubling financial news concerning
the company;
– (2) During this meeting, the auditor reported
numerous bookkeeping irregularities;
– (3) These irregularities consisted of several
erroneous bookkeeping entries (i.e., they “cooked
the books”)

• Let’s analyze these facts under the three-step
analysis:
– (1) A single important scenario
• The meeting between the outside auditor and the CFO
– (2) A single component event in that important
scenario
• The auditor reported on the bookkeeping entries vis-a-
vis the sales of computers to ABC Corp.

– (3) A single good issue within that component
may require more than one chapter:
• The single sale of computers to ABC Corp. gave rise to
the following bookkeeping irregularities:
– Chapter 1: The sale was booked on the last day of
the corporate year, but the contract was not signed
until 30 days into the following corporate year.
– Chapter 2: The sale was booked in an amount that
was exponentially higher than the contract price.
– Chapter 3: The computers were booked both as an
asset in the year-end inventory and the proceeds
from the sale of the computers was reported as
gross income.

Commentary
• This type of analysis lies at the very heart of the
chapter method of cross-examination.
• What it accomplishes: Instead of talking in
general terms about bookkeeping irregularities,
the attorney provides concrete factual evidence
of the bookkeeping irregularities, explaining the
significance of each regularity and allowing the
jurors to come to their own conclusion that this
was the textbook definition of “cooking the
books.”

The Most Important Topics Deserve
the Most Detailed Cross
• The most important topics within a case
usually require more than one chapter in
order to establish the goals within that topic.
• In the example above, the topic of the
meeting and disclosure to the CFO that there
were bookkeeping irregularities are vital to
the theory of the case. It stands to reason that
this topic deserves a thorough cross-
examination replete with multiple chapters.

• Let’s discuss the form of the question that is
put to the CFO on cross. This is by far the most
challenging part of cross and where the
beginner cross-examiner encounters the
biggest obstacles.

• Here are two examples of how not to phrase
the question:
– Q1: Did the auditor tell you about any financial
irregularities?
– Critique: Too broad and surrenders control of the
facts to the witness.

– Q2: Isn’t it true that the auditor told you about
some problems with the Microsanct contract?
– Critique: Squanders a golden opportunity because
this question provides no clear picture of the
facts.

• The correct form of the question is more
narrow.

• How do we craft narrow questions? By
breaking down key moments into their
individual parts, freezing these moments in
time, and analyzing each of them under a
microscope like a scientist analyzes a cell to
determine how they relate to each other and
what part of the completed puzzle each is
meant to fill in order to present a clear and
vivid picture of the facts that advance the
theory of your case.

• After some brainstorming, here are six
chapters that I came up with:
– Chapter 1: Establish importance of outside
auditor. This chapter relies on specific facts that
paint a clear picture of the importance of an
outside auditor.

– Chapter 2: Establish the importance of the meeting.
This chapter relies on facts that demonstrate how
important the meeting was.
– Chapter 3: Reveals the conversation between the
auditor and the CFO about the computer sale to ABC
Corp.
– Chapter 4: Booking the sale before it actually
happened.
– Chapter 5: Booking the sale in an inflated amount.
– Chapter 6: Double counting computers as both an
asset and a sale.

• The pictures created by a cross this detailed
are exquisite.

• Important observations:
– In order for the jury to understand the
government’s theory of the case, the AUSA must
educate them as to why these bookkeeping
entries are improper. He cannot assume that the
jury will automatically know that these
bookkeeping entries were a flagrant attempt at
distorting the financial health and well-being of an
otherwise anemic company.

– The heart of the case is the individual events that
are deemed to be fraudulent. Each fraud must be
highlighted by drafting chapters that marshal
together the individual facts that establish that
fraud.

What topics are ripe for cross-
examination?
• Examples:
– In an eyewitness case where the defense is
mistaken identification, the lawyer’s thoughts
should turn to drafting chapters on
inconsistencies. Each area of inconsistency, such as
height, weight, or facial hair, may deserve its own
chapter.

What topics are ripe for cross-
examination?
– In a self-defense case, the vitriolic words uttered
by the deceased victim will be deserving of a
chapter or two.
– When defending a case where the government’s
chief witness is a “snitch,” his or her prior bad acts
are ripe for the picking and will be fertile areas for
cross-examination.

Putting Facts Into Context
• There are some facts that only take on
meaning when viewed in relation (or
comparison) to other facts, testimony, or
exhibits.

• Consider the following example that is based on a
similar example presented by Pozner and Dodd in
their book, “Cross-Examination: Science And
Techniques”:
• A witness has turned to the “dark side” and has
become a witness for the State. He testified that
he assisted Danny Defendant in robbing the
Chase Bank before Danny asked him to be his
getaway driver, and based on their friendship he
agreed.

• Buried under a mountain of discovery is a
statement taken by the cooperating witness
where he says that he despised Danny, ever
since Danny beat him up in a bar fight a
couple of years before the robbery.
• When viewed in isolation, the first paragraph
may be utterly useless.

• However, when the two paragraphs are
compared, both events may warrant cross-
examination because they relate to each other
and cast doubt on the witness’s version that
the only reason he cooperated with Danny
was because Danny was his friend.

• Here, the strategy is to describe the bar fight
in such exquisite detail that the contempt the
witness has for Danny is so palpable that the
jury can taste it. They should have no other
choice but to summarily dismiss the witness’s
story as to why he went along with Danny as
an accomplice to this crime.

Overcoming The Urge to Conduct a
Global Cross Examination
• Less experienced trial lawyers have a tendency
to cross-examine in global terms.
• What is a global cross-examination? A cross-
examination that attempts to summarize a
point in conclusory terms, instead of
establishing facts with the degree of
specificity so as to allow the jury to arrive at
the conclusion on its own.

• Global cross-examination questions can be
identified from a mile away because they
contain few, if any facts and attempt to get the
witness to agree with a conclusion.
• Here is an example of a global cross-
examination question: “You were driving
negligently?”

• Criticism: This is a loaded question because
negligence consists of duty, breach, causation,
and damages.

• The fewer the facts, the more likely the
witness is to “push back” and become
uncooperative by giving unfavorable answers.
• Moreover, the cross-examiner squanders a
golden opportunity: advancing favorable facts.
• Global methods of cross-examination
surrender control of the cross-examination to
the witness.

• Proceeding one fact at a time, while slow and
tedious, is more engaging because it allows
the cross-examiner to cover the best material
thoroughly, accurately, and completely.

• Before you can transition from the “old” way
to the chapter method of cross, you must
break your case down into specific and
concrete goals.
• Each goal must be assigned at least one
chapter of cross-examination. However, some
goals may require a group of chapters, in what
is commonly referred to as “bundles.”

• For example, a single large event can be
viewed as a series of smaller events. Each
small event may deserve at least one chapter.
• Like a microscope that magnifies a cell with
the resolution and clarity of an electron
microscope, the chapter method allows you to
analyze the individual facts that can be
marshaled together to form a chapter on an
unprecedented scale.

• The irony is that you may find smaller, more
detailed chapters within what was once
thought to be a “harmful” chapter that are
actually helpful to your theory of the case.

• While chapters are built “brick by brick” one
fact at a time, they are not merely one
question or one fact. Instead, they are a series
of questions and a series of facts that lead to a
goal.

Do bad facts deserve a chapter?
• It depends (sorry for the lawyerly answer)
• Picture this. You are defending a case based
on a theory of mistaken identification. The
witness, Charlie, picked your client out of a
photographic array.
• At first blush, this is absolutely devastating.

• However, what if Charlie had been told, before
arriving at the police station to view the array,
that the police had a suspect (“we have
arrested a suspect”), and they want to see if
Charlie can pick him out of the array.

• This evidence is worthy of a chapter.
• Why? Because these facts demonstrate that
when Charlie went to the police station, he
went there with the expectation of “picking”
somebody out of the array because the police
had “the man.”

• Suppose that of the six people in the
photographic array, two do not fit the
description given by Charlie. Charlie described
his assailant as being Hispanic and in his mid-
twenties but two of the photographs in the
array consist of African American men in their
late thirties. In this case, you now have two
additional chapters on how these individuals
could easily be excluded.

• Suppose that Charlie views the array for
thirteen minutes before making a positive
identification of your client. This unusual
length of time may deserve a chapter.

• If, after Charlie circles a number, Detective
O’Brien makes a confirmatory remark such as,
“Yeah, that’s what we thought,” there is yet
another chapter.
• Detective O’Brien has provided assurances to
Charlie that he has chosen correctly.
• Not surprisingly, Charlie will continue to
“point the finger” at this “poor unfortunate
sole” throughout the entire case.

• There is no question that Charlie’s selection of
your client in the array is a bad fact.
Undoubtedly, the prosecutor will relish the
opportunity to walk Charlie through his
selection of your client’s photo slowly and
deliberately on direct.
• But your detailed analysis has developed
multiple chapters that can cast doubt on the
reliability of the array.

• At the very least, it puts the prosecutor in an
awkward position. He must go back on re-
direct to cover a major topic that didn’t
receive so much as a whisper on direct (it was
ignored). The jury will wonder, “Was the
prosecutor trying to hide something from us?”
The prosecutor will have to explain to the jury
why his direct ominously left out multiple
details that were covered on cross.

• No fact in isolation can create the vivid
pictures created by chapters. Instead, you
must marshal together similar facts “brick by
brick” until you’ve built a chapter that
advances a single goal.

How big should a chapter be?
• How big should a chapter be? Only as big as
the number of good facts available to
accomplish a single goal.
• Within an event, there is usually more than
one important point.
• When an event or topic contains more than
one goal, more than one chapter will be
necessary.

• Example: Johnny, your client, was beaten by
the police when he was arrested. It was
captured on video.
• The actual beating of Johnny is an event that
can be divided into multiple chapters.
• For example, to emphasize the barbaric and
senseless nature of the beating, you might
separately cross-examine on each separate
blow thrown by the officers.

• After discussing the lack of rationale for the
blow, the force behind the blow, the aim of
the blow, how it was dished out (via kick,
punch, elbow, or club), the cross-examination
would move to the next blow, which
represents the next chapter. In other words,
you’d work your way through cross “blow by
blow.”

• As you can see, the cross-examination of an
officer who was an active participant in this
senseless act would go well beyond a single
chapter called “the beating.”

Draft Chapters Backwards
• A straight-forward way to creating chapters is
to follow a four-step process introduced by
Larry Pozner and Roger Dodd in their book,
“Cross-examination: Science and Techniques.”
• This process can be reduced to three words:
“Draft chapters backwards.”

• Here are the four steps:
– Step 1: “Identify any one single factual goal to be
achieved in the course of the cross-examination
that is [consistent] with the theory of the case.”
– Step 2: “Review cross-examination preparation
materials for all facts that lead toward acceptance
of that single factual goal.”

– Step 3: “Draft a single chapter that covers those
facts, leading to the factual goal as set out.”
– Step 4: “If, while in the course of drafting a
chapter an additional worthwhile goal is
identified, separate that goal and its supporting
material into its own chapter.”

• Most lawyers will find that they are already
using these steps without even recognizing
them as a “technique.”
• Such lawyers will find adopting the rest of the
system to be “natural and convenient.”

Step 1: Select a Specific Factual Goal
• Good cross-examination cannot be done “on
the fly” or by “winging it.” Great trial lawyers
don’t stand up and begin asking random and
arbitrary questions.
• Never lose site of the purpose of cross as
emphasized by Pozner and Dodd: “To advance
[your] theory of the case or to undermine
[your] opponent’s theory of the case.”

• I hate to be the bearer of bad news but trials
are never won by casting one fatal blow. Perry
Mason moments have gone the way of the
dinosaur.
• As Pozner and Dodd so eloquently state, “the
credibility of witnesses and cases bleed to
death from a thousand little pin-pricks.”

• The essential idea here is to recognize that each
factual goal must be proven separately, even
though it may be closely aligned to a similar goal.
• For example, if it is important to show the robber
had no tattoos, then that individual topic
deserves its own topic and should be drafted
separately from all other chapters dealing with
other characteristics of the robber’s description.

• In a non-chapter system, your notes might
look something like this:
– Description
• Blue jeans
• Tattoos
• Height
• Body type

• Working from such an short-hand set of notes,
the lawyer is likely to cross on these issues
generally, without clearly establishing the
goal.
• By asking the minimum number of questions
needed to set up the goal, you will deprive the
jury of the factual detail and specificity that
they need to make a factual conclusion or
inference that favors your theory of the case.

• It also deprives you of the opportunity to
show the jury the strong command you have
over the facts of the case.
• You also fail to reassure the jury that when it
comes to credibility, it is best to accept your
version of the facts instead of the prosecutor’s
because you are candid and forthcoming.

Detailed Notes for Detailed Chapters
• Consider the following example: A prior felony
conviction of a State’s witness. In order to
blunt the impact of this coming out on cross,
the prosecutor makes a strategic decision to
elicit from his witness on direct that he has a
felony conviction.
• On cross, the defense may re-establish the
fact that the witness has been convicted of a
felony.

• Most defense attorneys would ask the
following abbreviated questions on cross:
– Q: Mr. Smith, you are a convicted felon?
– Q: In 1988, you were convicted of a robbery?
– Q: You got sentenced to prison for five years?

• While the defense attorney strictly adhered to
the fundamental rules of cross-examination,
you can sense that something is missing.
• While the lawyer established the goal-fact –
repetition of the fact that the witness is a
convicted felon – he did so without any
drama.

• The felony conviction is a cold fact – it inspires
no inferences. There is nothing particularly
damaging about this chapter, except the fact
that the witness was convicted of a robbery
and served time in prison.

• In fact, if the witness has been “coached” well,
he may even arouse some sympathy on the
part of the jury when he says that the time he
spent away from his family was unbearable
and that he was counting the days before he
could come home so that he could hold his
newborn child in his arms. Also, he stepped up
to the plate, took responsibility, and “paid
[his] debt to society.”

• Can you think of a better purpose for this
chapter?
• Suppose that you draft this chapter with the
purpose of attacking the witness’s credibility, so
that the jury will conclude that he cannot be
trusted.
• However, the questions asked above contain such
little detail as to amount to nothing more than a
news reporter making obvious observations. We
need to delve deeper!

• The summary nature of this chapter is so
utterly benign that it wrung all of the emotion
out of the chapter because it failed to
generate any drama.
• It doesn’t show how this damning fact bears
on the credibility of the witness.
• The good news is that it does not require
deciphering the dead sea scrolls in order to
“fix” this snafu.

• All that’s necessary is to make a few tweaks
beginning with breaking down the topic of the
witness’s prior felony conviction into smaller
parts (i.e., divide them into additional
chapters), with each chapter containing more
detail and factual context.

• You may choose to break the prior felony into
four separate but related chapters:
– Facts of armed robbery;
– The deal;
– The sentence; and
– The time served.

• Here’s an example of a cross-examination of
each of these chapters.

Example
• You are an armed robber (Chapter heading)
– Q: I’d like to ask you some questions about
October 29, 2007?
– Q: You remember that day don’t you?
– Q: That was the day you were arrested?
– Q: Not for jay walking?
– Q: Not for walking your dog without a leash?
– Q: Not for DUI?

Example
– Q: But for robbery?
– Q: On this day, you walked up with a gun in your
waistband to a liquor store in your own
neighborhood?
– Q: A .44 magnum revolver?
– Q: It was loaded with six bullets?
– Q: From outside the window you looked in?
– Q: You looked back?

Example
– Q: You looked all around?
– Q: You looked in and saw that there was only one
man inside the store?
– Q: A middle-aged man standing behind the
counter?
– Q: You went in that door, ran up to that man, and
put that gun to his head?
– Q: You said, “Give me the money or I’ll blow your
brains out?”
– Q: “You can bank on it.”

Example
– Q: He did as you ordered?
– Q: That armed robbery didn’t go exactly according
to plan?
– Q: Because in that store you didn’t know that,
although you traumatized another human being,
there was a panic button under the counter?
– Q: A little button set up so that robbers can’t run
roughshod over an entire part of town?
– Q: You ran out of the store?

Example
– Q: You didn’t get a half-a-block away before you heard
the sirens?
– Q: You ran faster?
– Q: Within a block of that store, the police were on
you?
– Q: You dropped your weapon?
– Q: You were arrested?
– Q: In one hand your gun, your trusty friend?
– Q: In the other hand, a bag of money?
– Q: Someone else’s money?

Example
– Q: You were cuffed and taken to the police station
on Carson Avenue?

Example
• You Got A Deal (Chapter Heading)
– Q: I’d like to talk to you about what happened on
December 15, the day of your jury trial?
– Q: You got up early?
– Q: You put on your trial suit?
– Q: You got on the early bus to the courthouse?
– Q: You knew nothing positive could happen at that
jury trial?
– Q: You met with your lawyer?
– Q: You discussed the case?
– Q: Over and over?

Example
– Q: You talked about any chance the clerk might not show
up for waiving that gun at his head and threatening his
life?
– Q: You knew that wasn’t going to happen?
– Q: You knew twelve jurors were going to convict you in a
skinny minute?
– Q: You also knew that once you were convicted, you were
going to get the maximum sentence under the law for
armed robbery?
– Q: Twenty years?
– Q: Day for day?
– Q: No early release for a violent felon?
– Q: You were doing the math in your head as fast as you
could and said, “I guess I’ll be out some time around
Halloween 2027?”

Example
– Q: Your lawyer came into the holding area early
that morning?
– Q: She sat down and talked to you?
– Q: You were running through all of the things that
you might say?
– Q: And what might happen if you just pleaded
guilty … what you might face?
– Q: She said, “With the nature of the crime, expect
the max?”

Example
– Q: You expected to pick that jury at 10 AM in
Judge Smith’s courtroom on the fourth floor?
– Q: You looked for a way out?
– A: No.
– Q: Well you weren’t looking for a way into the trial
were you?
– A: No.
– Q: So you looked for a way out?

Example
– Q: Your lawyer told you there are none?
– Q: But they think you might have evidence on
Bobby?
– Q: They think you might know something and that
might give me the leverage to help you?
– Q: You paused and you paused and you paused.
And you realized, the smart thing, the only thing
was to point the finger at Bobby?

Example
– Q: Let’s talk about this deal?
– Q: You’re saying that you played a major role and
conspired to kill a police officer?
– Q: That carries life without any possibility of
parole?
– Q: You got immunity?
– Q: That means no prosecution?
– Q: That means no charge?
– Q: For all practical purposes, it was as if you were
never even there?

Example
– Q: This armed robbery that you were going to do
five to twenty years day-for-day, that got wiped
away?
– Q: That got downgraded to a non-violent felony?
– Q: Like a purse snatching?
– Q: Your lawyer went through the math with you?
– Q: She went through that on zero to five, worse
case scenario, you get the whole five?

Example
– Q: Sixty months?
– Q: You can do that standing on your head?

Example
• You got the deal of the century! (Chapter heading)
– Sixty Months Isn’t Really Sixty Months (Sub-chapter 1)
– Q: Then your lawyer went through what sixty months
really means when it’s a non-violent charge?
– Q: She went through that with good time, that knocks off
twenty percent of the sentence?
– Q: One year?
– Q: You’re down to 48 months?
– Q: She told you that with work credit, here’s the kicker:
you don’t even have to work to get the credit. All you have
to do is not refuse to work and you get ten percent off of
that 48 months, right?

Example
– Q: That becomes more than four and a half
months off?
– Q: You’re down to 43 months?
– Q: And that’s before early release?
– Q: Early release is for people with non-violent
charges because we need the prisons filled up
with violent offenders who waive guns at people
and threaten lives?

Example
– Q: The early out for you non-violent guys is 50%
off the 43 months?
– Q: You’re looking at 21 ½ months?
– Q: This comes as no surprise to you?
– Q: It might surprise the people in the jury box?
– Q: But it doesn’t surprise you at all?

Example
– Credit for time-served (Sub-chapter 2)
– Q: You know that you get credit for this year you’ve
been incarcerated?
– Q: Every day?
– Q: You have eleven months and counting as of today?
– Q: If you get the maximum sentence from His Honor,
the worst case scenario is that you’ll miss the next
fourth of July 2009 but you’ll be home shortly after
that?
– Q: And you’ll be home with no supervision?
– Q: No reporting requirements?
– Q: No parole or probation hassles?

Example
• Anticipated Sentence (Chapter Heading)
– Q: It gets even better than next July, doesn’t it?
– Q: Because your lawyer is talking to you about this as the
worst case scenario – coming home around baseball
season?
– Q: Your lawyer also talked to you about the best case
scenario?
– Q: The best case scenario is that as soon as this trial’s over,
your lawyer is going to turn to this same judge and say,
“My client played a key role for the government. Another
eleven months won’t do him any good. He should be given
credit for time-served and be released today?”

Example
– Q: And you expect to be released next week?
– Q: And when you come in front of His Honor after
this trial is over, you’re going to walk in here and
stand behind this podium?
– Q: You’re going to raise your right hand and swear
to tell the truth?
– Q: You’re going to look His Honor in the eye?
– Q: Just like you looked these jurors?
– Q: Just like you looked that poor store clerk?

Example
– Q: And what are you going to say?
– Q: You’re going to say, “It’s the honest to god truth
judge, I wouldn’t tell a lie. I won’t get in trouble
again. Release me today?”
– Q: Are you going to say, “Judge, it’s the absolute
truth. I won’t commit another crime?”
– Q: Are you going to say, “Judge, you can bank on
it. I won’t be back?”

Commentary
• By breaking down the prior felony conviction,
you have proven to the jury why it should not
believe this witness because he has too much
to lose by not telling an exaggerated tale that
makes it appear as though he has firsthand
knowledge of who shot and killed the police
officer and that falsely incriminates your
client.

Commentary
• It is far more powerful than a bare bones
cross-examination that lets the witness off the
hook by merely repeating what the prosecutor
already established on direct: that he is a
convicted felon who served a four-year prison
sentence.

Commentary
• The specificity relied upon in the sample cross
leaves a bad taste in the jury’s mouth that this
witness manufactured an elaborate story and
tried to sell it to the police.
• The way the jury feels about a witness is often
more important than the intellectual
response.

Example of a Complex Character
Impeachment
• A more complex example of the need to divide
a matter into individual chapters and how to
orchestrate that division is found in this next
hypothetical.
• This hypothetical comes from the creative
genius of the instructors at the National
Criminal Defense College in Macon, Georgia.

Impeachment
STATE V. ROBINSON
• Facts: You represent Bobby Robinson.
Robinson has been charged with murder in
the first degree of a police officer and is on
trial in federal court. The government alleges
that in Carson City on October 15 of last year,
Robinson shot an on-duty police officer in the
head, killing him instantly.

Impeachment
• Samuel King is a witness for the state. On
direct examination, he testified that on the
evening of October 15, at about 9:00 p.m., he
and Robinson walked up to a marked police
car parked on the east side of Third Street,
just south of Main Street.

Impeachment
• Pursuant to their plan, King opened the
passenger door of the police car and Robinson
pulled a .38 revolver from his jacket pocket
and shot the police officer in the head.
• King was arrested for an armed robbery of a
liquor store on October 29. He was
apprehended running out of the store with a
gun in his hand.

Impeachment
• On December 15, the day his armed robbery
charge was set for trial in state court, King agreed
to become a witness for the U.S. government in
its federal case against Robinson.
• King gave a statement to the police on October
29 following his arrest, and testified concerning
the Robinson case before the grand jury on
December 2. His statement and a transcript of his
grand jury testimony follow.

Impeachment
• STATEMENT OF Samuel King TAKEN ON
October 29, (last year) AT CARSON AVENUE
POLICE STATION
• QUESTIONS ASKED BY OFFICER George
Cameron:
– Q. What is your name?
– A. Samuel King.
– Q. How old are you?
– A. Twenty-five.

Impeachment
– Q. I am going to ask you some questions about the
killing of a police officer on the corner of Third and
Main Streets on October 15 of this year.
– A. I don't know anything about that.
– Q. Were you anywhere near that corner on October
15th of this year at about nine o'clock?
– A. No. I think I was at a movie on the South Side with
my girlfriend.
– Q. Do you have any information at all about the killing
of a police officer on that night?
– A. I didn't even know a police officer was killed until
you told me about it a few minutes ago.

Impeachment
– Q. Do you have anything to add?
– A. No. I have told you the absolute truth.

Impeachment
• Grand Jury TRANSCRIPT OF TESTIMONY TAKEN
DECEMBER 2, (last year)
• PRESENT: Mr. Robert Thompson, Assistant
State's Attorney
• Reported by Mary Jones, stenographer
• WITNESS: Samuel King

Impeachment
• Samuel King, having been first duly sworn and
examined, testified as follows:
• By Mr. Thompson:
– Q. What is your name?
– A. Samuel King.
– Q. I call your attention to October 15, at around
9:00 p.m. Where were you at that time?
– A. I spent the entire evening on the South Side of
Carson City. I think I went to a movie with my
girlfriend.

Impeachment
– Q. Were you anywhere near Main and Third
Streets on that date?
– A. No, sir. I was nowhere near that neighborhood
any time that day.
– Q. Do you have any information about the killing
of a police officer at Main and Third Streets on
October 15, or any other day?
– A. No. I don't know anything about it.

Impeachment
– Q. Have you heard anything about the killing of a
police officer on October 15, around Main and
Third Streets?
– A. The first I heard of that was when the
policeman told me on the day I was arrested.
– Q. Is there anything you wish to add?
– A. No. I have told you the honest-to-God truth.

Impeachment
• Statement Made To Police Officer (Chapter 1)
– Recommit
• Q: On direct examination, you said that you decided to start telling
the truth on December 15, 2007?
• Q: That before 12/15/07, you hadn’t had that moment where you
decided to come clean?
• Q: You hadn’t had that moment where you decided to be candid?
• Q: You hadn’t had that moment where you thought you’d just get
this off your chest?
– Accredit
• Q: On October 29, 2007, you were caught fleeing the scene of an
armed robbery?
• Q: You weren’t a full block from the store when the police caught
you?

Impeachment
• Q: You dropped your weapon?
• Q: You were arrested?
• Q: In one hand your gun, your trusty friend?
• Q: In the other hand, a bag of money?
• Q: Someone else’s money?
• Q: You were cuffed and taken to the police station on
Carson Avenue?

Impeachment
• Q: You were booked?
• Q: Printed?
• Q: Had your photo taken?
• Q: While cuffed, you were led down a hall?
• Q: To a room?
• Q: An interview room?
• Q: You sat there cuffed wondering what was going to
happen?
• Q: Wondering whether you were going to get out from
under this any way?

Impeachment
• Q: After a while, a detective came in?
• Q: He uncuffed you?
• Q: He looked you in the eye?
• Q: He told you that he had important questions for
you?
• Q: He told you that he had important questions about a
police officer who was killed in the line of duty?
• Q: He told you that he had important questions about a
police officer killed in the line of duty on October 15,
2007?
• Q: Two weeks before this armed robbery?

Impeachment
• Q: At this point, you didn’t say, “Boy officer, thanks for
asking but I have a fifth amendment right to protect
myself from incrimination so I will not be speaking to
you today?”
• Q: You didn’t say, “I have some information. Let me get
together with my lawyer. Maybe he can work
something out?”
• Q: You didn’t say that either?
• Q: You didn’t say, “I got real good stuff. Bobby did it!
Bobby killed that cop in cold blood.” You didn’t say that
did you?

Impeachment
– Confront
• Q: Let’s talk about what you did say in that room?
• Q: You’ve seen a copy of your transcript from this
interview?
• Q: The prosecutor went over it with you this morning
and yesterday and last week when you met with him,
too?
• Q: The officer said to you, “I’m going to ask you some
questions about the killing of the police officer on the
corner of third and Main St. on October 15?”

Impeachment
• Q: You said, “I don’t know anything about it?”
• Q: He said, “Were you anywhere near that corner on
October 15?”
• Q: You said, “No, I was at the movie on the south side?”
• Q: Do you have any information at all that can help us
in this case?
• Q: And you said, “I didn’t even know that an officer had
been killed until you told me a few minutes ago?”

Impeachment
• Q: You looked him in the eye and that’s what you told
that officer?
• Q: At that point, you were caught red-handed on an
armed robbery and needed a way out?
• Q: He asked if you had anything else to add and you
said, “No. I’ve told you the absolute truth.”
• Q: Absolute truth – your words right?
• Q: On Oct. 29, 2007, the absolute truth was that you
didn’t know anything about the killing of a police
officer?

Impeachment
• Q: How was that officer who was trying to solve the
homicide of a fellow officer supposed to have known
that you were lying on Oct. 29 when you looked him in
the eye and told him the absolute truth that you didn’t
know anything about it?

Impeachment
• Grand Jury Testimony (Chapter 2)
– Recommit
• Q: On direct examination, you said that you decided to
start telling the truth on December 15, 2007?
• Q: That before 12/15/07, you hadn’t had that moment
where you decided to come clean?
• Q: You hadn’t had that moment where you decided to
be candid?
• Q: You hadn’t had that moment where you thought
you’d just get this off your chest?

Impeachment
– Accredit
• Q: I want to talk to you about Dec. 2, 2007?
• Q: On that day, you were taken to the grand jury room?
• Q: You came over to the courthouse on the early bus?
• Q: You got to that courthouse in your fine suit and were brought to
the third floor?
• Q: In that grand jury room was Mr. Smith, the
prosecutor in this very case?
• Q: Mr. Smith had questions for you?

Impeachment
• Q: Before he started asking you any questions, he did
something?
• Q: He put you in that witness chair and put you under
oath?
• Q: You know what an oath is?
• Q: It’s a promise?
• Q: A sacred promise?
• Q: On the Bible. To tell the truth?
• Q: Not the convenient truth?
• Q: The honest to God truth?

Impeachment
• Q: On that day, the jury box looked a little different
than it does today because there weren’t just twelve
people?
• Q: There were 23 people?
• Q: You got in that jury box and you took your oath and
you made eye contact with those 23 people and you
talked to them?
• Q: You talked to them not about your life story but
about Oct. 15, 2007?
• Q: You didn’t say, “Lades and gentlemen of the grand
jury, I got some really important information. Bobby
killed that police officer and I can put him there.” You
didn’t say that?

Impeachment
– Confront
• Q: Let’s talk about what you did say?
• Q: You reviewed this transcript with the prosecutor this
morning, right. And yesterday. And last week?
• Q: And you talked about how you were going to explain
how your answers under oath today were different
than your answers a year ago?
• Q: You had a conversation with Mr. Smith about that?

Impeachment
• Q: Mr. Smith asked you, “On Oct. 29 at 9:15 PM, where
were you at that time?” Your answer was, “I was on the
south side of Carson city. I think I went to a movie?”
• Q: That’s what you told him?
• Q: He said, “Were you anywhere near Main and Third?”
• Q: Answer, “No sir?”
• Q: He said, “Do you have any information at all relating
to the killing of the police officer in the line of duty on
Oct. 15?”
• Q: Your answer was, “No I don’t have any information
about that?”

Impeachment
• Q: “Have you heard anything about the killing of this
police officer? I didn’t hear anything about the killing of
this officer until I was arrested on Oct. 29 and the
police told me they were looking for the person who
killed the police officer.”
• Q: That was your answer?
• Q: “Is there anything you wish to add?”
• Q: Your answer was, “No, I have told you the honest to
God truth?”

Each Chapter Needs a Title
• Each chapter has one factual goal
• The materials collected for chapters are not
disparate fragments, but instead facts related to
each other
• Chapter titles are useful not only in preparing for
cross-examination but for closing arguments as
well
• Because the cross-examiner has identified the
chapters that advance his theory of the case, the
same topics can be used in closing argument

Step 2: Building a Chapter
• Rule: Review discovery in search of facts that
inescapably lead to acceptance of a single factual
goal for each chapter
• Drafting chapters for cross-examination is a
spiraling process
• The question is this, “Can discovery be organized
into useful categories before you’ve established
your goals for cross-examination or should goals
be determined after discovery has been
reviewed?”

• Personally, I begin by reviewing the discovery
and doing a client intake interview.
• This helps me brainstorm a general theory of
the case, such as “self-defense.”
• This initial theory suggests obvious goals.
These goals, in turn, help me to narrow my
search of the discovery for helpful cross-
examination material

• As I sort the discovery into groups that further
a specific goal, more goals are identified. This
results in additional groupings.
• Preparation for cross-examination is not a
linear process. Sparks will begin to fly inside
your head like electrons spinning around the
nucleus of an atom.
• One chapter may inspire another chapter.

• As you are drafting a chapter, you may
recognize that it has more than one goal. New
goals may require their own chapters.
• This can become harrowing. In order to
preserve your sanity, I recommend keeping a
notepad on the side so that if a fresh idea
pops into your head, you can write it down
before it becomes lost in the deepest recesses
of your mind never to surface again.

Chapters Give Clarity to an Event
• How do you uncover facts that further or
advance a factual goal?
• I do this by viewing a chapter as a scene out of
a play. In doing so, I go on the hunt for facts
that breathe life into the scene.
• The goal is to make the scene more vivid for
the jury.

• Ambiguity is to the cross-examiner what fear
is to the actor: an unwanted guest.
• Chapters, by their very nature, seek to shine a
light on an ambiguous aspect of direct
examination. If the cross-examiner wanted a
witness’s testimony on direct to remain
murky, then he wouldn’t have cross-examined
on it in the first place.

• Inherent in a cross-examiner’s decision to
cross-examine a witness on a particular topic
is the notion that he has made a strategic
decision to emphasize a goal more fully than it
was discussed on direct examination.

• Of course, the version presented on cross may be
diametrically opposite to the one presented on
direct, thus creating an ambiguity as to the reality
of that fact. But that’s why you’re having a trial in
the first place: there are two competing versions
of an event and it’s the jury’s job, as the judge of
the facts, to determine which one is more
believable.
• Facts are the tools of the trade.

Vivid Chapters Help Jury To Accept A
Prior Statement As More Accurate
• Introducing an alternative explanation is at
the heart of impeachment by inconsistent
statement.
• On cross, the lawyer wants the witness to
establish a prior version of an event with great
clarity, in order to cast doubt on the version
testified to on direct.

Vivid Chapters Help Jury To Accept A
Prior Statement As More Accurate
• As Pozner and Dodd eloquently state in their
book, impeachment by inconsistent statement
is “similar to a double exposure of the film.”
“The picture may itself have been well
defined, but after the cross-examination there
is a double exposure that makes the [jury’s]
vision less certain.”

Step 3: Accumulating Facts In Support
of the Goal
• Suppose that your adversary has called an expert
in the field of psychiatry to offer an opinion
within a reasonable degree of medical certainty
on a psychiatric diagnosis. To strengthen the
credibility of this expert, your adversary has
elicited the fact that he published ten articles in
some of the most respected psychiatric journals.
• The relevance of this information is that it assists
your adversary in establishing the credibility of
his expert so that the jury will accept him as an
expert in the field of psychiatry.

of the Goal
• Remember that cross-examination is
methodical. A good cross-examination reveals
itself one goal at a time.
• In this example, one of your overarching goals
is to discredit the witness in order to
undermine the juror’s confidence in his
opinion.

of the Goal
• Before blindly accepting the fact that the
psychiatrist is sufficiently qualified to testify
and foregoing constructing a chapter relating
to his qualifications, take a deep breath and
ask yourself the question: “Do any of these
publications relate to the topic of psychiatric
diagnosis, the ultimate opinion that he has
been called to testify on?”

of the Goal
• If not, then you can begin drafting a chapter
based upon the fact that none of the ten
publications relates to psychiatric diagnosis.
• This is a single chapter that groups together
the available facts that diminishes the
importance of the witness’s ten publications.
• The credibility of a witness is enhanced or
diminished by factual chapters, and this
chapter demonstrates that.

of the Goal
• Chapter: Publications
– Q: You placed everything you published in your
resume?
– Q: You are particularly proud of your articles?
– Q: Publishing an article demonstrates where your
interests lie?
Q: Doing research in an area helps you to develop
expertise in an area?
– Q: From 1998 to 2006, you published ten articles?

of the Goal
– Q: Every one of your articles was about hospital
administration?
– Q: Your articles are all about this single
administrative issue?
– Q: None of your articles addressed psychiatric
diagnosis?
End of chapter.

of the Goal
• There is no conclusion: “So, you are not really
an expert in psychiatry?”
• The chapter scored all of the points that it was
capable of.
• The cross-examiner has marshaled together
strong facts to discredit the expert on the
single point that his publications somehow
distinguish him as a person whose opinion on
a psychiatric diagnosis is to be trusted.

of the Goal
• While the expert might still be credible, the
fact that he has published ten articles no
longer carries the weight that it once did. In
fact, the fact that the witness has been
published at all is unlikely to have any bearing
on the jury’s determination of his credibility
on the ultimate issue of psychiatric diagnosis.
• Moreover, your adversary is less likely to use
this fact to bolster the expert’s credibility.

of the Goal
• No one chapter will strike the fatal blow or be
the coup d’etat.
• The accumulation of chapters, while not so
thrilling, is most reliable because it
accomplishes the goal of discrediting the
expert and undermining the juror’s confidence
in his opinion.

Conclusions can be disputed. Facts
cannot.
• Conclusions are like the Mean One, Mr. Grinch:
witnesses dispute them.
• The chapter method prevents us from falling into
this perilous trap.
• Using the chapter method, the attorney can
present potent facts that are so compelling that
the jury can’t help but to agree with the
attorney’s desired conclusion, even though the
witness was never explicitly asked to agree with
that conclusion.

cannot.
• Consider the following example from the creative
genius of Pozner and Dodd in their book, “Cross-
Examination: Science & Techniques.”
• The cross-examiner wants to establish that the
opposing witness was under great financial
pressure.
• The witness will never concede this conclusion. In
fact, you can count on him vigorously disputing it.

cannot.
• Cross-examining in the chapter method shows
that you do not need to beat the witness over
the head with a baseball bat on that
conclusory question.
• Instead, the idea is to reveal various aspects of
the witness’s financial situation one fact at a
time.
• What follows are some chapters you might
employ in order to weave this tapestry:

cannot.
• Chapter 1: In 2013, you borrowed $ 10 million
from Wells Fargo Bank
• Chapter 2: The payments on the $ 10 million
loan were as follows
• Chapter 3: The money was borrowed to
finance your acquisition of ABC Company
• Chapter 4: The plan was to use money
generated from your widgets contract to make
the loan payment

cannot.
• Chapter 5: The value of the widgets contract
• Chapter 6: The payments expected from the
widgets contract
• Chapter 7: But in 2015, the widgets contract
was canceled
• Chapter 8: In April 2015, you missed your
quarterly payment to the bank

cannot.
• As these chapters show, a disputed fact can best
be made by building chapters of facts that lead to
an inescapable conclusion
• The hostile witness is left with the unenviable
task of answering “yes” but chomping at the bit
to explain why
• This is why it is vital to stick to proving the facts
and resist the temptation of asking the witness to
agree with your desired conclusion – i.e., that he
was under intense financial pressure.

cannot.
• You must do a complete 180 on how you look at
things. You have to give more credit to the jury
and trust that they will arrive at the desired
conclusion if you stick to the systematic grouping
of facts and allow them to make the discovery on
their own.
• No question, the witness will “deny, deny, deny”
on re-direct. But blanket denials are self-serving
and pale in comparison to vivid and detailed
facts. They can’t paint nearly as powerful a
picture as what a chapter can.

cannot.
• Query: What if you know that a hostile
witness will affirm a conclusory question?
Must you still create the factual context
necessary to make the point?
• Even if a hostile witness can be counted on to
affirm a conclusory question, the monosyllabic
answer, standing alone, is insufficient.

cannot.
• In keeping with the theme that you are
“teaching the jury” during cross, you should
still provide the jury with individual facts that
help them to accept your goal. The chapter on
a single topic allows you to highlight the point
you are making with unparalleled clarity.
• Don’t be lazy. Don’t take short cuts.

One Question is Never Enough
• A group of facts create context. A single
leading question doesn’t.
• Receiving a favorable answer to a goal fact
question is never enough!
• The goal must be supported with the
strongest facts that are available.
• The facts that support the goal provide the
strongest justification for the jurors to accept
the inference suggested by the chapter.

One Question is Never Enough
• As the attorney, it is your job to provide
enough detail and supporting facts that
decisions seem obvious or at least fully
substantiated by the facts.

Establishing the goal fact through
supporting facts
• The simple goal of establishing that a witness
saw a white Honda requires more than simply
asking, “You saw the white Honda?”

supporting facts
• Example
– Q: You were standing on the street corner?
– Q: It was daylight?
– Q: You saw a Honda?
– Q: It caught your attention?
– Q: It was white?

supporting facts
• This group of questions requires the witness
to admit all four facts in order to firmly
establish the goal fact that the witness saw a
white Honda.
• These supporting facts, while seemingly
innocuous, more accurately and credibly
establish the fact that the witness saw the
Honda and that it was white.

Drafting Chapters: Putting Facts Into
Context
• We’ve talked a lot about the “goal.”
• What do I mean by goal? To me, the goal is to
create within the jury a “feeling” about a fact.
• A fact is made up of numerous supporting
facts.

Context
• For example, in a chapter called, “Promises Made
by the Government,” the literal fact is that the
snitch got a deal in exchange for immunized
testimony.
• Odds are that the snitch will concede that and
may well have done so on direct.
• The more important goal, however, is to get the
jury to view the snitch as a fish rotting from its
head down so that they will not believe his
testimony.

Context
• What is the goal of the chapter? It’s two-fold
– First, to put the deal into context
– Second, to flesh out for the jury why the heck it
matters

Context
• Example: John is arrested for theft, but no
money is found on him. This is a fact. It could
be the most critical fact of the case or it could
be completely innocuous, depending on the
context.

Context
• Here’s what I mean:
– Was John approached moments after the bank
robbery because he fit the description given by
the teller?
– Was John arrested four weeks later after a photo
identification?
• Only by knowing the context of the fact can
you – and ultimately the jury – appreciate its
significance to the case

Context
• In order for a goal fact to have meaning to the
jury, you must examine it upside down,
sideways, and backwards in various contexts.
• The chapter method is the most
straightforward way of finding the appropriate
context for a factual goal.

Context
• In the chapter, “Promises Made by the
Government,” the goal-fact may be the deal
• But what about the context?
• Perhaps the defense attorney wants to exploit
the deal as being so generous that it defies
belief. In this case, the theme might be, “too
good to be true!”

Context
• Example: John was caught red-handed – in
one hand his gun, his trusty friend. In the
other hand, a bag of money – someone else’s
money. John was facing a prison sentence that
would have kept him behind bars for the rest
of his natural life – a life spent away from his
family and confined to a cold, dank cell with a
porcelain toilet and a mattress so thin that the
springs left permanent bruises up and down
his spine.

Context
• John no longer needs to fear a life condemned
to living behind bars because prosecutors
promised “to take care of it for him.”
• These ancillary facts provide a context in
which the goal-fact can be appreciated.

Context
• Some chapters have a second purpose:
“Establishing a feeling or an emotional
reaction to the facts.”
• Generating a particular emotion, such as
sadness, outrage, empathy, disgust can be
very powerful. Here, specificity is vital.

Context
• For example, the chapter, “Promises made by
the government” is as much designed to leave
a bad taste in the mouths of the jury with
respect to the deal negotiated between the
prosecutors and the drug dealing witness as it
is to deliver factual information of the chapter

Context
• There are times when the emotional goal
outweighs the factual goal
• For example, when you can elicit from the snitch
how he lied, cheated, and deceived people,
proving how he accomplished his crime is
subordinate to convincing the jury that he is a
twisted and perverted creep capable of
manipulating facts and manufacturing lies, not
unlike Heath Ledger’s character, The Joker, in
“The Dark Knight.”

Context
• The emotional reaction rarely subsides, but
will continue to last long after the witness is
done testifying. The jury’s memory of him will
not soon fade!

Building a Chapter: Step 4: When is a
subject sufficiently broken down?
• In “Cross-Examination: Science and
Techniques,” Pozner and Dodd answer this
question in the form of a “mathematical
equation.”
• They reduce it to a four-step formula:

• Step 1: “Every topic has a value.”
• Step 2: “That value can range from virtually
zero to supremely important.”
• Step 3: “To recognize the value of a particular
topic, consider how much that topic helps
[your] theory of the case or how much that
topic undermines [your adversary’s] theory of
the case.”

• Step 4: “A topic having the greatest impact on
the opposing theories of the case deserves
the greatest time and attention.”

• Acknowledging that this is a theoretical
approach, Pozner and Dodd are quick to cite
an example
• Recall the earlier example where the cross-
examiner had to establish that the witness
was in dire financial straits in a specific year

• If that financial apocalypse significantly
undermines a competing theory of the case, then
all of the information that is available to paint
such a morbid picture is deserving of more than
one chapter.
• This is where you say, “time out” and break this
chapter down into fine granules of sand and
meticulously examine each one like a scientist
examining a particle under an electron
microscope.

• This hyper-attention to details might lead to
the following additional chapters:
– A bank loan requiring periodic payments
– A missed payment in that time frame
– The forced sale of the witness’s assets at a
sheriff’s sale
– NOTE: If a bank loan entered into years before has
no bearing on the financial plight of the witness,
then forego mentioning it

• If additional events exist to help prove the
financial plight of the witness, then additional
chapters should be developed that use these
facts

Important Topics Should be Broken
Down in Great Detail
• The most important topics should be broken
down in the greatest detail
• Tip: It is easy to combine two potential
chapters into one larger chapter in the
eleventh hour than it is to attempt to break
down one chapter into two smaller chapters in
the eleventh hour

• The example concerning the photographic
array demonstrates that even general
chapters that appear to be damaging to your
theory of the case might be neutralized or,
even better, turned into “good facts” that
support the theory of your case. This can only
happen when details are closely analyzed

• When in doubt, analyze the material more
closely. Events are only understood in context.
Give yourself permission to daydream and let
your imagination run wild. You will be
surprised what lies in the deepest recesses of
your mind. This is the genesis of all creativity.
But you must be relaxed and calm in order for
your fertile imagination and free association
to take over.

Is it possible to break the evidence
down too far?
• Yes. This is a pitfall that must be avoided since
time spent preparing for irrelevant issues is
time wasted. As busy lawyers, we can’t afford
to get sucked into the cosmic vacuum of a
black hole and be left to languish there.
• What deserves the greatest attention is the
evidence that has the greatest impact on the
theory of the case or on the credibility of a
witness.

down too far?
• Topics or chapters that accomplish none of
these things are not worthy of your time and
effort and should be disregarded entirely.

down too far?
• Example:
– If the date has nothing to do with the contrasting
theories of the case, don’t waste time drafting a
chapter concerning the date.
– If the educational background of the witness has
no bearing on the case or on the credibility of the
witness, don’t waste time drafting a chapter on it.

down too far?
• One of the advantages of the chapter method
of cross is that important facts deserving of
attention pop right out like a flashing neon
sign.

Cross-Examination as a
Performance

Your Voice
• Use your voice!
– Breathe and relax
– Vary volume, pitch, tone, pace, inflection,
cadence, silence, and emphasis (especially during
impeachment)
– Tone conveys emotion
– Use these devices to signal the completion of a
chapter and/or the beginning of a new one

Use Your Body & The Space to
Persuade
• Be aware of your facial expressions;
• Your arms and your hands are attached to
your body – use them with purpose!
• Focus your attention on the witness;
• Use the space. Move with purpose.

Closing Remarks
• Your voice and body should radiate a sense of
confidence and belief in your client and your
case
• Knock it out of the park!

Contact Information
Website: www.DeBlisLaw.com
Email:
MJDeBlis@DeBlisLaw.com
Office: 973-783-7000

Chaptering Your Cross

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Chaptering Your Cross