July 7, 2015

Colorado Court of Appeals: Judgment of Trial Court Affirmed in Child Sexual Assault Case

The Colorado Court of Appeals issued its opinion in People v. Conyac on Thursday, January 30, 2014.

Sexual Assault on a Child—Challenge for Cause—Expert Testimony—Motive—CRE 404(b)—Rape Shield Statute—Prosecutorial Misconduct.

KT informed her mother, LC, that defendant, her stepfather, had molested her. A jury found defendant guilty of three counts of incest; three counts of sexual assault on a child—position of trust; and one count of sexual assault on a child—position of trust pattern of abuse.

On appeal, defendant argued that the trial court erred in denying a challenge for cause to a juror who stated that her niece had been sexually assaulted and murdered by her sister’s live-in boyfriend. The Court of Appeals disagreed. Because the juror also stated she could consider the evidence in the case and make a decision and follow the presumption of innocence, the trial court did not abuse its discretion in denying defendant’s challenge for cause.

Defendant claimed the trial court erroneously allowed two unqualified prosecution witnesses to testify as experts. The Court reviewed the trial court’s admission of expert testimony and found no abuse of discretion.

The Court disagreed that the officer’s testimony was an improper commentary on defendant’s credibility. The Court found that the testimony was an explanation of the officer’s interview tactics.

The Court agreed with the trial court ruling that a defendant’s prior attempt or request to have anal sex with his spouse may be relevant concerning motive in a child sexual abuse trial, provided the evidence otherwise satisfies CRE 404(b). Here, the evidence related to a material fact and it had logical relevance.

Defendant asserted that the court erroneously excluded evidence of the pending dependency and neglect case concerning LC. The Court disagreed, ruling that exclusion of this additional evidence did not contribute to the guilty verdict.

Defendant argued that the trial court erred in excluding evidence of KT’s prior sexual knowledge and familiarity with sexual assault investigations, because the evidence was relevant to rebut the “natural assumption” that KT could only know about such facts from defendant and to support his defense that KT’s allegations were aimed at removing him from the home because she disliked his rules and disciplinary efforts. The Court disagreed, finding that KT was old enough to know about sexual matters regardless of her experience with defendant and there was alternative evidence of KT’s outside sexual knowledge. In addition, the prosecution did not argue that KT was sexually naïve and had no other source of sexual knowledge.

Defendant also claimed that prosecutorial misconduct in the rebuttal closing argument required reversal. The Court disagreed. The prosecutor used rhetorical devices and argument to point out the weaknesses of defendant’s theory of the case. Although the prosecutor made an erroneous statement regarding the beyond-a-reasonable-doubt standard, it was not plain error. The Court also rejected defendant’s challenge of the constitutionality of the rape shield statute and the Sex Offender Lifetime Supervision, as well as the determination of his habitual criminal charges without a jury. The judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Expert Testimony on Gang Affiliation Properly Admitted

The Tenth Circuit Court of Appeals published its opinion in United States v. Archuleta on Tuesday, December 17, 2013.

Nathan Archuleta was a leader of the Tortilla Flats gang in New Mexico. The Tortilla Flats are an affiliate of the Sureños, a group of gangs with ties to the Mexican Mafia. In June 2009, Archuleta orchestrated a plan to smuggle methamphetamine from Mexico into the United States. The scheme was unsuccessful and Archuleta was arrested and indicted.

Before trial, Archuleta filed a motion to exclude gang-affiliation expert testimony. The district court held two hearings and ruled that Lujan, the government’s gang expert, could testify about the Sureños gang, the significance of its tattoos, structure, activities, and affiliation with the Mexican Mafia. Archuleta objected, and the court overruled his objection.

A jury convicted Archuleta of possession of methamphetamine, possession of methamphetamine with intent to distribute, conspiracy to possess methamphetamine with intent to distribute, and being a felon in possession of a firearm. Archuleta appealed. On appeal, Archuleta contended that admission of a gang expert’s testimony violated Federal Rules of Evidence 403, 702, and 704(b). Of these three evidentiary rules, only Rule 403 was raised by Archuleta before the district court. As a result, the court’s review of his arguments pertaining to Rule 702 and Rule 704(b) was limited to plain error review.

Rule 403 permits a court to exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Fed. R. Evid. 403. After reviewing the record, the Tenth Circuit was not persuaded that the district court abused its discretion in allowing the government’s gang expert to testify. His testimony was not cumulative, confusing or misleading, or unfairly prejudicial.

Rule 702 requires a district court to satisfy itself that the proposed expert testimony will assist the trier of fact, before permitting a jury to assess such testimony. The court held that Archuleta failed to explain how the relevant evidence regarding gangs, which no other witness covered, was unhelpful to the jury’s understanding of the implications of Archuleta’s membership in the Tortilla Flats gang.

Archuleta’s final argument was that Lujan’s testimony violated Rule 704(b) because it was the functional equivalent of an opinion that Mr. Archuleta in fact had knowledge of the smuggling scheme. Under Rule 704(b), in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. The question was whether he improperly testified about Archuleta’s mental state.  The court admitted that, even if Lujan’s testimony violated Rule 704(b), Archuleta could not demonstrate plain error. This demanding standard required him to show, among other things, that the error must have affected the outcome of the district court’s proceedings. This he did not show.


Tenth Circuit: Disclosure of Material Considered by Expert Containing Factual Ingredients Required

The Tenth Circuit Court of Appeals published its opinion in In re Application of Republic of Ecuador on Wednesday, November 13, 2013.

Intervenor-Appellant Chevron Corporation appealed from a district court order granting a motion to compel production of documents pursuant to subpoenas issued under 28 U.S.C. § 1782. Section 1782 allows for discovery of documents to be used in a foreign proceeding. Petitioners-Appellees, the Republic of Ecuador and its Attorney General (collectively, “the Republic”) sought the discovery to defend an $18.2 billion judgment against Chevron by an Ecuadorian court in Lago Agrio. Chevron sought relief from that judgment pursuant to investment treaty arbitration under United Nations’ rules.

Prior to the Lago Agrio judgment, in September 2009, Chevron commenced arbitration proceedings against the Republic under the U.S.–Ecuador Bilateral Investment Treaty. In February 2011, immediately following the Lago Agrio judgment, the arbitral tribunal ordered that the Republic stay all efforts to enforce the Lago Agrio judgment, pending further order of the tribunal.

In June 2011, the Republic filed a § 1782 application in the District of Colorado seeking “discovery from Bjorn Bjorkman to aid the Republic in defending the validity of the Lago Agrio judgment.” The Republic alleged that Mr. Bjorkman served as one of Chevron’s chief experts and that the Ecuadorian court explicitly relied on his opinions. In the instant action, Chevron argued before the magistrate judge that the 2010 revisions to Fed. R. Civ. P. 26 brought materials prepared by or provided to Mr. Bjorkman under the protection of the work-product doctrine. The magistrate judge rejected this argument and ordered the production of all of the facts and data the expert considered in forming his opinion. The Republic filed two motions to compel after Chevron continued to improperly withhold documents. The district court adopted the magistrate judge’s recommendations that only documents protected by Rules 26(b)(4)(B) and (C) were privileged.

On appeal, Chevron made several arguments that the 2010 revisions to Fed. R. Civ. P. 26 radically changed the discoverability of documents held by experts. The Tenth Circuit disagreed, holding that the underlying purpose of the 2010 revision was to return the work-product doctrine to its traditional understanding, that it protects only the inner workings of an attorney’s mind. The court affirmed.

Colorado Supreme Court: Criminal Code Not Applicable in Juvenile Proceedings Except as Provided in Children’s Code

The Colorado Supreme Court issued its opinion in In re People in Interest of A.A. on Tuesday, November 12, 2013.

Colorado Code of Criminal Procedure—Colorado Children’s Code.

The People petitioned pursuant to CAR 21 for relief from an in limine ruling of the juvenile court allowing the introduction of testimony by the juvenile’s psychological expert without regard for the court-ordered examination mandated by CRS § 16-8-107. The juvenile court reasoned that in the absence of any provision of the Criminal Procedure Code specifying otherwise, the requirements of CRS § 16-8-107 did not apply to delinquency proceedings.

The Supreme Court approved the ruling of the juvenile court and discharged its rule to show cause. Because the Colorado Code of Criminal Procedure expressly provides that it will not apply to proceedings under the Colorado Children’s Code except as specifically set forth in the Criminal Procedure Code itself, and because no provision of the Criminal Procedure Code suggests that § 16-8-107 was intended to apply to proceedings under the Children’s Code, the Court found that the court-ordered examination in question cannot apply to delinquency proceedings.

Summary and full case available here.

Tenth Circuit: Armed Bank Robbery Conviction Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Brooks on Thursday, August 29, 2013.

A jury convicted Anthony Brooks was convicted of armed bank robbery. He appealed his conviction, arguing that: (1) the evidence at trial was insufficient, as a matter of law, (2) the district court erred by admitting DNA evidence linking him to the crime scene; (3) the district court’s refusal to strike the testimony of the government’s expert witness constituted an abuse of discretion; (4) the district court abused its discretion by allowing the government to introduce evidence that Mr. Brooks was in possession of large amounts of cash several months following the robbery; and (5) the district court abused its discretion by denying Mr. Brooks’s motion for a new trial based on alleged juror misconduct.

The court found that the district court properly determined that the government established a sufficient foundation establishing a chain of custody for the DNA evidence. Finding no abuse of discretion, the court held the district court properly admitted the DNA evidence. The court also found that the district court did not abuse its discretion in allowing the testimony of the government’s expert witness. There was limited, if any, evidence that Mr. Brooks was prejudiced by the alleged discrepancy between the expert’s testimony and her report. The Tenth Circuit further held the district court did not err in admitting evidence that Mr. Brooks was in possession of large amounts of cash several months following the robbery. The possession of a large sum of cash at about the time of an offense may be considered as part of the circumstantial evidence where warranted by the particular facts involved. its probative value was not significantly diminished by the timing of the observations of his possession of the cash.

The court then turned to Mr. Brooks’ contention that insufficient evidence was produced at trial to support his conviction for armed bank robbery. Taking the evidence—both direct and circumstantial, together with the reasonable inferences to be drawn therefrom—in the light most favorable to the government, the Tenth Circuit concluded a reasonable jury could find Mr. Brooks guilty beyond a reasonable doubt. There was ample evidence in the record from which a reasonable jury could have found, beyond a reasonable doubt, that Mr. Brooks committed the bank robbery charged in the indictment.

Mr. Brooks’ final argument was that the district court erred in denying him a new trial based on alleged juror misconduct. Mr. Brooks argued that Mr. Clark, the jury foreperson, lied by omission in failing to inform the court and the parties during voir dire that he was under investigation by the same federal agency that was prosecuting Mr. Brooks. Under McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), a litigant is entitled to a new trial in the face of allegations that a juror’s voir dire responses are untruthful when a party demonstrates that a juror failed to answer honestly a material question on voir dire, and then further shows that a correct response would have provided a valid basis for a challenge for cause. The district court found that while the second prong of the McDonough test may have been met, it found that the juror’s responses to be truthful and denied Mr. Brooks’ motion for a new trial. The Tenth Circuit found no clear error in the district court’s determination.


Tenth Circuit: Summary Judgment for Medical Malpractice Defendants Affirmed

The Tenth Circuit Court of Appeals published its opinion in Talavera v. Wiley on Wednesday, August 7, 2013.

Carmen Talavera suffered a stroke while visiting a store in November 2007 and incurred permanent disabilities that she attributed to the medical malpractice of personnel at the Southwest Medical Center (SWMC), where she was taken after her stroke. Talavera brought claims against a number of these medical personnel defendants under diversity jurisdiction, alleging that they should have diagnosed and immediately treated her stroke symptoms with blood-clotting therapy, or, absent that, proceeded with early surgical intervention to prevent damage caused by swelling in her brain. The district court granted summary judgment for the defendants.

The Tenth Circuit first discussed the weight to give a report submitted by Dr. Helgason, Talavera’s expert neurologist. In the report, Dr. Helgason offered opinions as to how she believed the defendants had caused Talavera’s injuries. She later qualified those opinions in her deposition. The court held that a party “cannot create a genuine dispute of material fact solely by relying on a conclusion that was written in an expert report and later qualified during that expert’s deposition. A witness’s later qualifications are the relevant ‘opinions’ for purposes of summary judgment unless there is some reason for disregarding them.”

The court then applied Kansas law to Talavera’s tort claims and affirmed summary judgment.

Colorado Court of Appeals: Officer’s Testimony Regarding Speed of Vehicle was Expert Testimony Disguised as Lay Opinion but Error was Harmless

The Colorado Court of Appeals issued its opinion in People v. McGinn on Thursday, June 20, 2013.

Vehicular Eluding—Double Jeopardy—Merger—Lay Witness—Expert Testimony—Prosecutorial Misconduct.

Defendant Glenn McMinn appealed the judgment of conviction entered on a jury verdict finding him guilty of four counts of vehicular eluding, four counts of eluding a police officer, and one count of menacing. The judgment was affirmed.

McMinn and his girlfriend got into a fight, and he called the police. When Police Officer Anderson arrived at his house, McMinn was already in his pickup truck. He backed out of his driveway and accelerated. Because there was packed snow and ice on the road, the truck slid sideways, striking the officer. McMinn then led the police on a chase before being apprehended.

McMinn contended that under double jeopardy principles, his four convictions for vehicular eluding must be merged and his four convictions for eluding a police officer also must be merged. A defendant may be charged with multiple offenses of vehicular eluding arising from a single criminal episode when he or she has performed discrete acts of eluding one or more peace officers, each constituting a new volitional departure in the defendant’s course of conduct. Here, four officers, including Anderson, testified about being individually eluded during, and each had individual facts. Thus, the evidence supports separate convictions here.

McMinn also contended that the trial court plainly erred in allowing Sergeant Pinson to testify, as a lay witness, to calculations regarding the speed of the truck, and to opine, based on these calculations, that the truck was a deadly weapon. His testimony in fact was expert testimony presented in the guise of lay opinion, and the error in admitting such testimony was obvious and substantial. Because this evidence was cumulative of other evidence properly presented at trial, however, the erroneous admission of Sergeant Pinson’s expert opinions does not warrant reversal.

McMinn further argued that reversal was required due to prosecutorial misconduct in closing argument. Although some of the prosecutor’s comments may have been improper, they weren’t so obvious to undermine the fundamental fairness of the trial or cast serious doubt on the reliability of the judgment of conviction, especially when considered in the light of the evidence presented.

Summary and full case available here.

Colorado Court of Appeals: No Shreck Hearing Required for Admission of Fingerprint Evidence

The Colorado Court of Appeals issued its opinion in People v. Wilson on Thursday, May 23, 2013.

Voir Dire—Entrapment—Shreck Hearing—Expert Testimony—Fingerprint Evidence—Prior Conviction—Burden of Proof—Preponderance of the Evidence.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of a controlled substance, as well as the sentence that the court subsequently imposed. The Court of Appeals affirmed the judgment and sentence.

In May 2008, defendant asked an undercover police officer, who was posing as a prostitute on east Colfax Avenue, if she wanted to smoke crack cocaine with him. When he showed her a Blistex tube that contained three rocks of crack cocaine, police officers from the Aurora Police Department arrested him.

Defendant argued that voir dire was insufficient because the trial court refused his request that the court read to the potential jurors a legal definition of the defense of entrapment. Both the prosecutor and defense counsel, however, had the opportunity to question jurors about the general nature of the entrapment defense. Further, the trial court properly gave instructions to the jury on the issue of entrapment at the close of the evidence. Accordingly, the trial court’s denial of defendant’s request to instruct the jury on the defense of entrapment duringvoir dire was not an abuse of discretion.

Defendant further argued that the trial court abused its discretion when it denied his motion to hold a Shreck hearing on the admissibility of expert testimony regarding fingerprint evidence concerning a prior conviction. [People v. Shreck, 22 P.3d 68 (Colo. 2001).] The Court ruled that the motions court acted within its discretion when it denied defendant’s request for a Shreck hearing because: (1) the trial court was the finder of fact, not a jury; (2) defendant was permitted to raise issues during the sentencing hearing that would have been allowed during a Shreck hearing; (3) the evidence was not complex; and (4) fingerprint comparisons are reliable evidence.

Defendant contended that the trial court denied his right to due process of law when it used the wrong burden of proof—a preponderance of the evidence—in finding that he had been convicted of the 1997 drug-related felony. When a sentencing statute does not establish a burden of proof, “the prosecution need only prove the existence of prior conviction facts by a preponderance of the evidence.” CRS § 18-18-405(2.3)(a) was a sentence enhancer, not a substantive offense or an element of a substantive offense, and did not contain a prescribed burden of proof. Thus, the trial court used the proper evidentiary standard—a preponderance of the evidence—and defendant’s due process rights were not abridged.

Summary and full case available here.

Tenth Circuit: Convictions and Sentences Affirmed in Case Arising from Defendants’ Operation of Medical Clinic

The Tenth Circuit published its opinion in United States v. Schneider on Wednesday, January 16, 2013.

Dr. Stephen Schneider was a doctor of osteopathic medicine and his wife, Ms. Schneider, was a licensed nurse (“the Schneiders”). They owned and operated Schneider Medical Clinic in Haysville, Kansas, where they provided pain management treatment, including the prescription of controlled substances. A Kansas grand jury indicted the Schneiders. At trial, they were convicted of several counts of unlawful drug distribution, health care fraud, and money laundering arising from their operation of the Medical Clinic. The district court sentenced Dr. Schneider to 360 months’ imprisonment, and Ms. Schneider to 396 months’ imprisonment. The Schneiders appeal their convictions, alleging that (1) they were denied the right to conflict-free representation; (2) the district court erroneously admitted expert testimony; (3) the district court improperly instructed the jury; and (4) there was insufficient evidence to support the charge of health care fraud resulting in death.

(1) The Schneiders argue they were denied the right to conflict-free representation.

The Tenth Circuit held Dr. and Ms. Schneider waived all potential conflicts voluntarily, knowingly, and intelligently, based on the totality of the circumstances, following two hearings on potential conflicts.

(2) The Schneiders contend the district court erroneously admitted expert testimony.

Dr. Parran, an expert witness for the government, testified “the clinic was at fault” for illegal drug distribution. Dr. Parran also testified that, from his review of the records, the Schneiders ran a “dishonest practice.” Another expert witness for the government, Dr. Jorgensen, opined that the Schneiders’ health care fraud resulted in patients’ deaths, and that he believed the Schneiders filed fraudulent claims. The Schneiders objected to this testimony.

The rules of evidence allow an expert to opine on an “ultimate issue” to be decided by the trier of fact. Fed. R. Evid. 704(a). However, an expert may not simply tell the jury what result it should reach; he or she must explain the basis for any summary opinion. Here, the Tenth Circuit found no error in the admission of Drs. Parran and Jorgensen’s testimony. Neither doctor told the jury to reach a particular verdict, i.e., that Dr. Schneider was guilty. Rather, after explaining at great length their observations from the evidence, they summarized their findings in their testimony.

(3) Defendants allege the district court improperly instructed the jury.

The Tenth Circuit found no abuse of  discretion in the jury instructions objected to at trial, considering de novo the instructions as a whole to determine whether they accurately informed the jury of the governing law. The Tenth Circuit found no plain error in the instructions objected to for the first time on appeal.

(4) The Schneiders argue there was insufficient evidence to support the charge of health care fraud resulting in death.

After viewing the evidence in the light most favorable to the verdict to ascertain whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt, the Tenth Circuit held sufficient evidence supported the convictions on these counts.


Colorado Supreme Court: Trial Court Abused its Discretion by Striking Rebuttal Testimony of Expert Witness

The Colorado Supreme Court issued its opinion in In re Warden v. Exempla, Inc. on Thursday, December 20, 2012.

Scope of Discovery—CRCP 37—Rebuttal Disclosures—Late Disclosures—CRCP 26.

The Supreme Court vacated the trial court’s order striking the testimony of plaintiff’s rebuttal expert witness and the testimony of two previously disclosed expert witnesses. The Court held that the trial court abused its discretion when it excluded the expert witness’s rebuttal testimony because her testimony properly refuted a central theory of the defendants’ case. It also held that the trial court abused its discretion when it excluded the new testimony of two previously disclosed experts, because the late disclosure did not harm defendants, as required for sanctions under CRCP 37. The Court therefore made the rule absolute and remanded the case for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Judgment Reversed in Bias-Motivated Crime Case Because Officer’s Testimony Constituted Expert Opinion

The Colorado Court of Appeals issued its opinion in People v. Ramos on Thursday, November 8, 2012.

Bias—Third-Degree Assault—Lay Witness—Expert Testimony—DNA Sample—Crim.P. 41.1(c) and 16(II)(a)(1).

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of committing a bias-motivated crime and third-degree assault. The judgment of conviction was reversed and the case was remanded to the trial court.

While riding in the front passenger seat of a car driven by his girlfriend, defendant turned to the back seat, where victim R.L. was riding, and made bias-related comments to her. Defendant then proceeded to assault R.L., punching her several times in the face and lower neck.

On appeal, defendant asserted that the trial court abused its discretion in allowing a police detective to testify as a lay witness regarding blood spatter and transfer evidence that defendant left on R.L.’s clothing. When an officer’s opinions require the application of, or reliance on, specialized skills or training, the officer must be qualified as an expert before offering such testimony. Here, although the detective had not been qualified as an expert, (1) the detective testified about his extensive experience investigating cases involving blood; (2) the detective used the technical terms “spatter” and “transfer” and defined them for the jury; (3) the prosecutor advised the court that the detective was testifying “as to his training and experience,” and used that phrase four times in questioning the detective; and (4) the detective’s testimony was not based on his personal knowledge or investigation of this case. The trial court abused its discretion by allowing the detective to testify as a lay witness regarding blood spatter and blood transfer, and this error was not harmless. Therefore, the judgment was reversed and the case was remanded for a new trial.

Defendant also contended that the trial court erred in compelling him to provide a DNA sample, because the People did not provide an affidavit setting forth the grounds to support an order to collect evidence pursuant to Crim.P. 41.1(c). Based on the plain language of Crim.P. 16(II)(a)(1), the trial court did not need an affidavit or showing of special circumstances to order defendant to provide non-testimonial evidence. Therefore, the trial court did not err in this regard.

Summary and full case available here.

The Next Generation of Cross-Examination: Constructive Cross-Examination

This article is excerpted from the book, Cross-Examination: Science and Techniques, by Larry Pozner and Roger Dodd.

For generations, the cross-examining lawyer was counseled to attack, all with the central purpose of weakening the opponent’s theory of the case. Under the newest generation of constructive cross-examination, the primary goal of cross-examination changes dramatically, according to Roger Dodd, a national expert on cross-examination techniques.

Constructive cross-examination is a quantum shift from the historical outlook on the central purpose of cross-examination. It is not a technique, rather it is a new perspective on the ability to use cross-examination at trial to teach the cross-examiner’s theory of the case.

The old way: Destructive cross-examination

Historically, cross-examination was a series of techniques designed to challenge the witness’ testimony, including attacks on the witness’ credibility. The primary goal of destructive cross-examination was to attack the witness or the witness’ story whenever and wherever feasible. It was essentially negative or destructive in its outlook. For generations, trial lawyers were schooled in this outlook. The operable phrase was “to attack.” The cross-examining lawyer was counseled to attack, all with the central purpose of weakening the opponent’s theory of the case.

Consequently, the tone of destructive cross-examination was aggressive and negative. The courtroom climate generated by this form of cross-examination was tense. By the end of the cross-examination, someone was going to be damaged, whether it was the witness or the cross-examiner.

Under the former generation of cross-examination, the cross-examiner consciously or unconsciously believed that the critical goal of teaching her theory of the case to the fact finder would be left to her direct examinations. This most critical goal of trial was specifically reserved for direct examination of the cross-examiner’s own witnesses.

What is constructive cross-examination?

Under this newest generation of constructive cross-examination, the primary goal of cross-examination changes dramatically: use opposing witnesses to build the cross-examiner’s theory of the case. While the cross-examiner can still challenge opposing witnesses and their story, thus damaging the opponent’s theory of the case, this goal becomes secondary under constructive cross-examination.

This exponential expansion of the function and purpose of cross-examination rewards the cross-examiner with broader, more productive cross-examinations that are at the same time easier and less stressful.

Historically, the lawyer ready to cross examine would ask herself one fundamental question: “Does this particular witness hurt my theory of the case?” If the answer was no, the correct technique was often, “Ask no questions.” Under this new, modern theory of constructive cross-examination, the lawyer must expand her internal inquiry and ask herself two fundamental questions.

The first question remains the same, “Does this particular witness hurt my theory of the case?” Whether the answer is yes or no, a second, more important, question is asked: “Does this witness possess facts that I, the cross-examiner, can use to build, support, or strengthen my theory of the case?” So much more can be accomplished by asking the second question. Cross-examination becomes an opportunity to introduce, support, and reinforce the cross-examiner’s theory of the case. Even when a witness’ testimony presents few or no good areas for attack, the cross-examiner can still search for areas in which the hostile witness can be questioned so as to bring out facts supporting the cross-examiner’s theory of the case. Therefore, the likelihood of asking no questions of the witness on cross-examination has all but been eliminated.

If the answer to both questions asked at the end of direct examination is truly “no,” the cross-examiner may legitimately decline to cross examine. However, if the answer to both questions is “no,” the cross-examiner must ask herself why this witness was called by the opponent. What did the witness add to her opponent’s theory of the case?

To be clear, destructive cross-examination remains an available and necessary component of cross-examination. However, these attacks are now secondary in nature. Destructive cross examination is no longer the first and primary option of the cross-examiner. In every aspect of trial – from jury selection through opening statements, direct examinations, cross-examinations, and closing arguments – the trial advocate focuses on teaching her theory of the case to the fact finder. The aim from beginning to end is to educate the fact finder on that lawyer’s theory of the case. This singular focus provides fact finders the necessary facts upon which they can build an understanding that supports the lawyer’s theory of the case.

Larry Pozner and Roger Dodd together have revolutionized the practice of cross-examination in the United States. In addition to Cross Examination: Science and Techniques, they are the creators of the nationally acclaimed seminar “Advanced Cross-Examination Techniques.” They have lectured, appeared as expert witnesses, or conducted full-day CLE programs on cross-examination in 46 states as well as in Canada, Mexico and Puerto Rico.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.


CLE Program: Advanced Constructive Cross-Examination

This CLE presentation will take place on Thursday, November 29, at 9:00 a.m. Participants may attend live in our classroom or watch the live webcast.