Author’s Note: I have reproduced below the cross examination that I prepared for Crane-Station’s public defender, Chris McNeill. He told me that he decided not to use it because the jury “would be offended.” He said the deputy was “young and innocent and just doing his job.” I will leave it to you to decide if that explanation is credible and reasonable.

Keep in mind, as you read this proposed cross examination, that Rule 3.130(1.1) of the Kentucky Rules of Professional Conduct provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.130(1.3) of the Kentucky Rules of Professional Conduct provides:

(1) A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and
dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the
means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

When a defense lawyer impeaches a critical prosecution witness with a prior inconsistent statement, he can take the soft approach and argue that the prosecution failed to prove its case beyond a reasonable doubt because its witness is not credible.

He can say, for example, “I don’t know whether the witness lied to you under oath or innocently forgot, but there is absolutely no question that his inconsistencies and contradictions add up to a reasonable doubt.”

The hard approach would be to use the dreaded ‘L’ word and argue that there is a reasonable doubt because the deputy is a liar. This approach, particularly when it involves attacking the police, can anger a jury and backfire unless the inconsistencies were egregious.

I have tried it both ways successfully. I opted for the hard approach in my proposed cross, but it easily could have been adapted to the soft approach.

When McNeill made the comment to me about the deputy being young and innocent, I assumed he meant that he would opt for the soft approach. I did not consider the possibility that he was opting for no approach.

When I began to type the proposed cross to reproduce it here, I discovered that it is much too long to enter in one post, so I am going to present it in a series of posts. Each post will deal with a separate topic or set of topics. This post will cover what the deputy witnessed prior to the investigatory stop.

The cross examination is organized in a question-answer format. A reference to the document or transcript containing the deputy’s previous statement is incorporated in a leading question asking for a ‘yes’ or ‘no’ answer with the source of the statement provided below the answer. If the deputy were to give an answer that was inconsistent with his previous statement in the document or transcript, the lawyer would then proceed to impeach him with that statement. I illustrated how to do that in Part 2.

I hope you enjoy the Killer Cross.

1. Q: Whenever you are considering whether to charge a suspect with DUI, you document everything you observe that would be consistent with drug or alcohol impairment, isn’t that correct?

A: Yes.

Source: Transcript Suppression lines 2-6, page 19

2. Q: Staggering or stumbling would be signs of alcohol or drug intoxication, right?

A: Yes.

Q: You did not document any staggering or stumbling in your report, did you?

A: No.

Transcript Suppression, lines 14-17, page 17

3. Q: In fact, you previously testified under oath in this case that Mrs. Leatherman had no problem getting out of her car, didn’t you?

A: Yes.

Transcript Suppression, lines 11-13, page 17.

4. Q: Difficulty producing identification and proof of insurance are signs of alcohol or drug intoxication, aren’t they?

A: Yes.

Q: You did not document in your report in the Uniform Citation that you filled out the night that you arrested her that she had any difficulty producing her identification and proof of insurance, when you asked her to produce them, did you?

A: No.

Uniform Citation

5. Q: In fact, you previously testified under oath in this case that she had no problem producing her identification and proof of insurance, didn’t you?

A: Yes.

Transcript Suppression, lines 18-22, page 15.

6. Q: You did not document that she had any difficulty speaking, did you?

A: No.

Uniform Citation

7. Q: At no time during your encounter with Mrs. Leatherman did she exhibit slurred speech, did she?

A: No.

Q: Slurred speech is another sign of alcohol or drug intoxication, isn’t it?

A: Yes

Transcript Suppression, lines 18-19, page 17.

8. Q: You did not document in your report that Mrs. Leatherman exhibited any sign of mental confusion or disorientation, did you?

A: No.

Uniform Citation

9. Q: In fact, you did not notice any signs of mental confusion or disorientation, did you?

A: No.

Uniform Citation

10. Q: Mental confusion or disorientation is another sign of alcohol or drug intoxication, isn’t it?

A: Yes.

11. Q: An odor of alcohol is another sign of intoxication, isn’t it?

A: Yes.

12. Q: You did not document in your report that you noticed an odor of alcohol emanating from Mrs. Leatherman, did you?

A: No.

13. But you did document that she passed the portable breath test (PBT) ruling out alcohol intoxication at the roadside after you stopped her, didn’t you?

A: Yes.

14. Q: Yet, two weeks later when you testified before the grand jury under oath in this matter, you told them that she stumbled getting out of her car, was very unsteady on her feet, and was smelling of alcohol, didn’t you?

A: Yes

Transcript Grand Jury

15. Q: Inattentive driving is another sign of drug or alcohol intoxication, isn’t it?

A: Yes.

16. Q: You have previously testified under oath in Mrs. Leatherman’s case that you first noticed that her left turn signal was blinking as you passed her, isn’t that correct?

A: Yes.

Transcript Suppression, lines 4-6, page 5.

17. Q: Both of you were approaching the Cairo Road intersection, weren’t you?

A: Yes.

18. Q: The Cairo Road intersection is a traffic light controlled intersection where motorists can turn left or right, isn’t it?

A: Yes.

19. Q: If Mrs. Leatherman had moved into the left lane as you started to pass her, she would have collided with your vehicle, wouldn’t she?

A: Yes.

Transcript Suppression, lines 21-25, page 12.

20. Q: The fact that she did not move into the left lane and collide with your vehicle indicates that she was attentive, doesn’t it?

A: Yes.

Transcript Suppression, lines 21-25, page 12

21. Q: You slowed down and fell in directly behind her as soon as you realized that her vehicle, Washington plates, and the blonde hair matched the description provided by the 911 caller, didn’t you?

A: Yes.

Uniform Citation, Transcript Grand Jury, Suppression Transcript

22. Q: As soon as you fell in behind her, she activated her right-turn signal, moved over onto the shoulder of the road, and slowed down to a stop, correct?

A: Yes.

Transcript Suppression, lines 3-5, page 15.

23. Q: That would be another example of attentive rather than inattentive driving, wouldn’t it?

A: Yes.

24. Q: In conclusion, she was driving appropriately, she wasn’t weaving, and her speed wasn’t a factor when you decided to pull her over, isn’t that correct?

A: Yes.

To be continued . . .

Cross posted from my law blog.