The Art of Cross Examination (Part 4) The Killer Cross That Never Happened
Author’s Note: This is a continuation of the Killer Cross. If you have not read the first part, please go here to read it, as it is important for the sake of continuity.
Notice that each question is a leading question. That is, the questioner, in this case the defense attorney, makes a statement and asks the witness, Deputy Eddie McGuire of the McCracken County Sheriff’s Department, to agree or disagree with it. With the exception of a few questions to which the answer is common knowledge or otherwise apparent, the statement in each question is a prior statement that the witness made in his report or a prior statement that he made under oath while testifying at the preliminary hearing, grand jury, or suppression hearing.
After the question that contains the witness’s prior statement, I provide an answer that confirms the prior statement that he made. Below the answer in italics, I provide the source for the statement.
For example, in the first question below (#25 in the sequence that started yesterday), Deputy McGuire testified at the preliminary hearing that he pulled Crane Station over because he thought she possibly had some heroin. If he had answered the question below with a “No,” the lawyer would have impeached him with his prior inconsistent statement under oath by following the formula that I presented in Part 2 of this series. Please review that procedure, if you have not read it or are uncertain about it.
As I have said previously, impeachment by prior inconsistent statement is one of the most powerful and effective tools to cross examine and destroy the credibility of a witness and your opponent’s case.
Unfortunately, Crane Station’s lawyer, Chris McNeill, refused to use this cross examination and he lost the case. However, in the strange manner that the universe works, his refusal ended up giving me this opportunity to educate all of you about something only a few of you know anything about, which is the art of cross examination.
In a subsequent post, I will discuss why I think he declined to use it.
I love teaching! and I hope you enjoy reading the Killer Cross that never happened.
All rise. Court is back in session. You may be seated.
25. Deputy McGuire, you pulled Mrs. Leatherman over because you thought she possibly had some heroin, correct?
Transcript Preliminary Hearing, page 8, lines 14-15
26. Q: You have testified that you thought she possibly had some heroin on her because Mr. Wilkey called 911 and reported that she asked him if he knew where she could purchase some tar heroin, correct?
Transcript Preliminary Hearing, page 7 lines 1-3
27. Q: That’s what you told the members of the grand jury on July 28, 2006, isn’t it?
Transcript Grand Jury, page 1, lines 17-23
28. Q: The grand jury is a group of citizens who decide whether to indict a suspect whom a law enforcement officer, such as yourself, has arrested for a felony crime, right?
29. Q: The grand jury decides whether there is probable cause, or reasonable grounds to believe that a suspect has committed a felony crime, correct?
30. Q: You would agree with me that it is extremely important for a witness testifying before the grand jury to tell the truth, isn’t it?
31. Q: You promised to tell the truth, the whole truth, and nothing but the truth when you testified, didn’t you?
32. And that is the same promise that you made to this court and this jury today, isn’t it?
33. Q: Mr. Wilkey told the 911 operator that Mrs. Leatherman had a conversation with his neighbor in the neighbor’s yard in which she “mentioned something about tar heroin and all that stuff,” isn’t that correct?
Transcript 911 Call, page 2, lines 8-9
34. Mr. Wilkey did not tell the 911 Operator that Mrs. Leatherman asked him if he knew where she could purchase some heroin, did he?
A: No he didn’t.
35. Q: And the 911 Dispatcher did not tell you that Mr. Wilkey had reported that Mrs. Leatherman had asked him if he knew where she could purchase some heroin, did he?
A: No, he didn’t.
Transcript of Dispatcher Tape, page 1. This transcript was first made available by the prosecution during the trial. I did not have it or include a reference to it in my proposed cross. Nevertheless, I included this question because I believed the dispatcher never would have said what the deputy claimed he said in view of what the 911 caller had said. I also knew we could request and obtain a copy of the dispatcher tape and transcribe it before the deputy testified. Both the 911 call and the 911 dispatch could have been played to complete the impeachment.
36. Q: Despite promising to tell the truth to the grand jury, you did not tell the truth when you told the grand jury that Mr. Wilkey called 911 and reported that she asked him where she could buy heroin, correct?
37. Q: You also told the grand jury under oath that Mrs. Leatherman was “very unsteady on her feet,” when she got out of her vehicle after you stopped her, didn’t you?
Transcript Grand Jury, page 3, lines 6-7
38. Q: That was a lie too, wasn’t it?
39. Q: Lying under oath to a grand jury is a felony called perjury that is punishable by up to 5 years in prison, isn’t it?
Author’s Note: If the deputy said he did not know that what he did was perjury, the lawyer could simply hand him the statute and have him read it out loud. I did not put this in the document that I prepared for Chris McNeill because any lawyer should know this.
This is called playing hardball. I designed this part of the cross to provoke the judge into interrupting and advising the deputy of his Fifth Amendment right to remain silent and refuse to answer on the ground that his answer might have incriminated him. An honest judge also would have offered to recess the trial long enough for the deputy to consult with a lawyer and decide whether to continue answering questions.
At this point, an honorable prosecutor would have, in effect, tossed a white handkerchief over counsel table into the middle of the courtroom as a symbolic gesture of surrender.
None of this happened, however, because Chris McNeill refused to do the cross because, as he put it, “the deputy was a nice young man and the jury would have been offended,” if he used my proposed cross examination.
But, let us continue. Now that we have established that the deputy is a perjurer, let’s take him all the way down. Until tomorrow, Court will be in recess.
To be continued . . .