April 22, 2019

Colorado Court of Appeals: Witness’s Probationary Status Alone Does Not Implicate Defendant’s Right to Cross-Examine

The Colorado Court of Appeals issued its opinion in People v. Margerum on Thursday, April 19, 2018.

Assault—Menacing—Sixth Amendment—Confrontation Clause—Cross-Examination—Probationary Status.

Defendant was alone in a friend’s apartment with the friend’s girlfriend, E.S. When E.S. rejected defendant’s sexual advances, defendant became angry and forced E.S. onto the bed, climbing on top of her and kissing and groping her. Then defendant tried to remove E.S.’s clothing. Eventually he stopped and let E.S. leave the apartment. Defendant then texted his sister, T.M., to come to the apartment. He told her he had a bag of clothes he wanted to give her. T.M. went to defendant’s apartment with her son. Without warning, defendant grabbed her around the neck and began choking her. Defendant then pinned T.M. underneath him and began groping her body. T.M. grabbed a glass candleholder and hit defendant on the back of the head, which allowed her to escape with her son. A jury convicted defendant of unlawful sexual contact without physical force as to E.S., and third-degree assault and menacing with a deadly weapon as to T.M.

On appeal, defendant argued that the trial court violated his rights under the Confrontation Clause by not allowing him to cross-examine E.S. concerning her probationary status. A witness’s probationary status alone does not implicate a defendant’s constitutional right to cross-examine the witness on potential bias or motive. Rather, some logical connection between the probationary status and the witness’s motive for testifying is required. Here, at the time of defendant’s trial, E.S. was serving a one-year probation in another county for a forgery conviction. Defendant pointed to no other facts that would logically connect E.S.’s probationary status with her testimony at his trial. Accordingly, the trial court did not err in denying defendant’s request to cross-examine E.S. regarding her probationary status because these facts do not show that E.S.’s testimony might have been influenced by a promise or expectation of leniency in exchange for favorable testimony.

Defendant next argued that there was insufficient evidence to support his menacing conviction. He contended that (1) the menacing statute requires that a defendant place the victim in fear before any actual injury, and (2) the conduct underlying his menacing conviction cannot be the same single act as the conduct underlying his assault conviction. The statute does not require that the victim be placed in fear before she in injured; it is thus irrelevant whether the victim is injured before, during, or after she is placed in fear of imminent bodily harm, if defendant’s actions place or attempt to place her in such fear. Defendant presented no basis to depart from established law that a person can commit two crimes with one act. The evidence supports defendant’s menacing conviction.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Larry Pozner and Roger Dodd Master the Art of Cross-Examination

When Barry Scheck writes about your book, people tend to take notice. For Denver-based attorney Larry Pozner and Roger Dodd, it’s high praise indeed for Cross-Examination: Science and Techniques. In the foreword to the book, Scheck says, “This is simply the best book on the art and science of cross-examination ever written. Before I contemplate a major cross-examination in a criminal case or a deposition of a significant witness in a civil case, I literally go back to this book to stimulate my thinking.”

CBA-CLE recently hosted Pozner and Dodd in Denver for their Advanced Constructive Cross-Examination program. Evaluations and comments from attendees included, “Their technique on cross-examination is brilliant.” “The best aspects of the program were the content and charisma of the speakers.” They left with us a signed copy of their second edition of Cross-Examination: Science and Techniques, and we would like to give it away—simply for liking us on our Facebook page. Just go to our page here and “Like” us by 5 p.m. on December 12, 2012. If you already a fan, you’ll be automatically entered in the drawing for the signed copy of the book, no need to do anything else.

Barry Scheck continues his review of Pozner and Dodd in the foreword to the book, “Larry and Roger are wonderful teachers and terrific lawyers….Good cross-examination, even great cross-examination, can be taught.” So, if you missed the live program in Denver, there are several chances to watch a video replay. Upcoming video replay dates are in Denver on December 20, January 9, February 6, March 11, April 9, and May 8, held at the CBA-CLE classroom. And, on December 20 in Colorado Springs and Grand Junction. You can see the full agenda by clicking here. Watching Larry Pozner and Roger Dodd is substantive and practical education and something all attorneys should experience.

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 Video Replay: Advanced Constructive Cross-Examination

This CLE presentation video replay will take place on Thursday, December 20, at 9:00 a.m. Click here to register or call (303) 860-0608.

Can’t make it in December? There will be additional video replays in January, February, March, April, and May.

 

 

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.