Imagining What Didn’t Happen

Most people think cross-examination is all about badgering the witness into admitting the crime. Others think closing argument is about is about tricking the witness into a damning admission. Both of these views are wrong, in my opinion.

A defendant who chooses to testify is going to come up with a story that he thinks will get him off. The story usually holds up on its face. Your job, as cross-examiner, is to break it down. You can’t ask, “that’s dumb, isn’t it.” And it’s rarely useful to ask, “you’re lying to get off, aren’t you?”

The best way to break down a fake story is to imagine what a normal person would have done and compare that with what the defendant says that he did. Consider the important decisions the defendant made. And for each of these, ask yourself what a normal, reasonable person would do in that situation. Here’s an easy example. Imagine you’re trying and assault case in which the victim was injured and called 911. Then, the defendant takes the stand and says that the victim is the one to blame. The defendant concoct a story in which he is the one who had to use force him self defense. A reasonable person in this situation would call 911. After all, and innocent person has nothing to lose by calling 911. By contrast, a guilty party increases his chances of being caught if he calls 911. So the important question is, why didn’t you call 911. In this situation, you’re hoping that the defendant comes up with an unbelievable reason for not doing so. “My phone was dead.” “I figured they were too busy to help.” Answers like these help you. If you get enough of them on cross, your defendant will have lost all credibility and you won’t need to do much. Even if you only get a few, you can magnify them in your closing.

These arguments dovetail nicely with pointing out during your closing all the evidence that the defendant did not present. You will have the benefit of supporting evidence, and lots of it, for the prosecution case. While the defendant will not have any evidence for his story. And the fact that the defendant elected to go with one story rather than merely challenging the prosecution’s story helps the prosecution. It becomes dueling stories rather than the question of whether the prosecutor met his burden. It’s always easier to get the jury to decide between two stories then it is to eliminate all reasonable doubt. After all, in the latter situation, each juror may come up with their own story, and you may have to disprove 12 imagined versions of the crime.


Here’s a chapter from a textbook on cross-examination.  They describe our tactic as the “Things Not Done” cross-examination.  The chapter also lists more than a dozen other strategies.

Pictures Within Pictures

When you look through the defendant’s Facebook feed, with his posts stupidly set to public, you see the frozen mind of a teenager.  What if you never got tired of graffiti, dip, and naked women?  What if you thought that posing with your shirt off was cool for the rest of your life?  And he had the loneliness of a teenager too.  His Facebook isn’t full of photos birthday parties, expensive food, or nights out with the boys.  It was one man wandering alone through cargo containers, on post-industrial street corners, and through railyards.  I found myself wondering who his audience was.  They weren’t in the pictures.

The pictures did show the defendant burning things.  Plenty of things in lots of different places.  His case was pending for years before we found the pictures.  I wasn’t there to see his face when he first heard that we had them.  Did he wince?  Did he kick himself for being so stupid?  Or had he seen this coming from far away, only to feel relief that it finally, inevitable happened?

By the time I met the defendant, the case had been through several lawyers on both the defense and the prosecution side.  The defendant (or rather his wealthy parents) had the habit of firing lawyers at a rapid clip.  On our side, the case was so old that people had been transferred on to new assignments; several rotations worth of prosecutors.  But when the case came to me, my number was called, and I tried it.

Defendant was accused of arson, and the defense was mistaken identity.  The defendant had even engaged an expert on mistaken identify.  She had been paid to opine that the witnesses who saw the defendant at the scene were mistaken.  The case had been pending for so long that the expert had written her report and rendered her opinion before we discovered the Facebook evidence.  The court granted an 1101(b) motion to admit the evidence.  We had a witness to another fire in the neighborhood testify that he saw the defendant light a fire and then film it on his phone.  That man took a picture of the defendant, who was, in turn, taking a picture of the fire he had lit.  And on the defendant’s Facebook, we found that very same picture.

The mistaken identity expert didn’t seem to know any of this.  When she got up and testified, I confronted her with the photo of the prior fire.  She had to admit that it was the defendant.  She had to admit that this type of evidence made it more likely, not less likely, that this was not a case of mistaken identity.

One day I’ll be so old that I won’t know where to look for this kind of evidence.  I suspect that Instagram has a ton of evidence, but I haven’t been able to figure it out.  In another case, two people met on a website called MocoSpace.  That’s when I first began to suspect that I might be a little out of the loop.  Backpage was already closed by the time I figured out that it was a gold mine of trafficking evidence.  But at least in this case, Facebook evidence did the trick.  I just need to make sure to keep looking for it.