SYNOPSIS OF THE TRIAL
This is a case about a simple battery I tried. A female victim was claiming my client pushed her down on the ground. My client said she was charging at him, and he just used his hands to prevent her from hitting him. Before jury selection the victim stated to me that my client was a witness against her son on a domestic violence case, and her son ended up going to jail. After she admitted this fact on the stand I was able to cross-examine all the government's witnesses on the victim's motive to make these allegations against my client, and that she was charging at my client.
The government called 3 main witnesses: 1) the victim; 2) the victim's daughter, who was present during the incident; and 3) the arresting law enforcement officer. This article focuses on the cross-examination portion of the trial related to motive. The questions and answers from the trial are from memory, but should be substantively accurate.
THE VICTIM
Introduction: After the victim took the stand the first thing I had to do was establish the fact my client was a witness against her son. I didn't really have any evidence of this, since I learned about it right before trial.
The goal for this cross-examination was to establish the preconditioned fact that my client was a witness against her son on a domestic violence charge that sent him to jail. If I could establish this fact I could cross-examine her and the other witnesses on her motive.
Me: C.L. was a witness against your son in a battery case right?
Victim: Yes.
Commentary: This established the necessary precondition fact to cross-examine the government's witnesses on motive. This fact was not limited to cross-examining the victim, but for cross-examining all of the government’s witnesses on this fact.
Me: He helped put your son in jail right?
Victim: Yes.
Commentary: This is the follow up as I continue to Ask Leading Questions in a progressive manner to build up the victim’s motive (i.e. it shows how mad she was at my client).
Me: You were mad at my client for putting your son in jail right?
Victim: No.
Commentary: After the motive had been established I asked the victim if she was mad at my client for putting her son in jail. The victim couldn’t reasonably deny this question, but she denied it anyway. By denying the question not only did no one believe her, but she came across as untruthful. It should be noted I made the leap in logic that my client put her son in jail, which he obviously did not. He was only a witness against him. In the unlikely scenario that the victim called me out on this it was easily correctable.
Me: So you weren’t mad he put your son in jail?
Victim: Well it's his life.
Commentary: This follow up question was mostly asked by the fact I was shocked she denied she wasn't mad my client put her son in jail. In my opinion it highlighted how unreasonable her answer was, but I still have not made up my mind how much it helped my case.
VICTIM’S DAUGHTER
Me: You know C.L. was a witness against your mother’s son right?
Victim’s Daughter: Yes.
Commentary: This preconditioned fact was already established through the victim. She really couldn’t deny this fact.
Me: And your mother was mad about that right?
Victim’s Daughter: Yeah, I had to hold her back and everything.
Commentary: She gave me a gift. I should have stopped questioning her, but there had been pressure on me to press the witnesses on these gifts. A former supervisor actually told me I didn’t pounce on it hard enough, but I still believed I should have ended my cross-examination instead of asking the next question.
Me: So she was so mad you had to hold her back?
Victim’s Daughter: Well I wasn’t holding, holding her back.
Commentary: I knew I had made a mistake by continuing to question the witness on the gift. Although I’m not sure how much this answer hurt me, because it appeared she just changed her answer after she realized it wasn’t good for the government's case.
LAW ENFORCEMENT OFFICER (LEO)
Me: You’ve been a law enforcement officer for a long time right?
LEO: Yes.
Me: So you have a lot of training and experience right?
LEO: Yes.
Commentary: It’s kind of dangerous to bolster a opposing counsel's witness, but I was getting ready to lay the precondition facts that he knows to investigate the motive of a crime. It wasn’t clear if the officer knew C.L. was a witness against the victim's son, and if he took that into consideration.
Me: You have training and experience in investigating motive right?
LEO: Yes.
Me: And you know my client was a witness against the victim's son in a domestic battery case right?
LEO: Yes.
Me: You would agree that is motive to make up these allegations against my client, correct?
LEO: Yes.
Me: And she made up essentially the same charges against my client, for which he was a witness against her son right?
LEO: Yes.
Commentary: The officer could not really deny the answer to these statements. If he didn’t know my client was a witness against the victim’s son, I could cross-examine him if that is something he would consider in his investigation. Note the progressive manner I asked the questions. First I established my client was a witness against her son on domestic violence charges, then I had him admit that was motive to make up allegations against my client, and finally he admitted the victim was accusing my client of almost identical charges that my client was a witness against her son on. I then decided to ask an open-ended question, but I had decided the question was unlikely to hurt me. I got the best answer I ever received from an adverse witness.
Me: What was my client’s motive to push the victim?
LEO: She was charging at him.
Commentary: This caught me completely off guard. The law enforcement officer essentially testified my client was innocent, and was just defending himself. I originally didn’t know what to do, as an officer has never said my client was innocent before. I fortunately decided not to let the witness take back his gift, and said no more questions.
CONCLUSION
This was one of the few cases where I believe we clearly proved the defendant was innocent. While I don’t think the government could have proven their case on the day of trial. After establishing a few facts on cross-examination it became clear my client was not guilty of these charges. A few minutes into deliberation the jury came back not guilty.
