What is Direct and Cross Examination?

What is Direct and Cross Examination?

Attorney Adrian M. Madrone has teamed up with Law Professor Julie A. Helling’s acclaimed Internet Podcast Series Justice On Trial. In this episode, Adrian discusses the core of many criminal trial — the direct and cross examination of witnesses. To listen to the complete podcast, where Julie also discusses how juries decide on a verdict, visit iTunes.

A full transcript of Adrian’s ‘Know Your Rights’ segment is provided below for your convenience.

What is Direct and Cross Examination?

On previous episodes of this podcast, we have discussed some of the steps involved in taking a case to trial. These have included preliminary legal arguments, jury selection, and opening statements. Once a jury is empaneled and the parties have made their opening statements, the process moves to the presentation of evidence typically done by calling witnesses. Today we will be discussing these parts of the trial—the direct and cross-examination.

Prosecution and Defense

To start, remember that the two sides in a trial are the plaintiff or prosecution—the side the brought the case; and the defense—the side defending against the criminal charges or civil claims. In the trial, the plaintiff or prosecution gets to put on its witnesses and evidence first. Once the plaintiff has presented its entire case, the defense then gets to put on its case. This back-and-forth process of calling witnesses and presenting evidence really becomes the bulk of the trial.

Calling Witnesses

When an attorney calls a witness to the stand and asks them questions, this is called “direct examination.” After direct examination, the opposing party gets to question the witness, which is called “cross-examination.” Although both direct and cross-examination involve asking a witness questions, each type of questioning is done very differently.

Direct Examination

So let’s start with direct examination. When an attorney calls a witness, they typically know what the witness is going to say, and the testimony will generally support their side’s overall position. For example, in a criminal trial for an assault charge, the prosecution would call the assault victim, police officers who responded to the incident, and other eyewitnesses (if there were any). These would all be witnesses who would support the prosecution’s assault charge against the defendant.

What Happens During Direct Examination?

When the attorney calls their witness and does direct examination, the questions are typically going to be very open-ended, giving the witness plenty of time to tell what they saw, did, heard, etc. Direct examination questions will often open with things like: who, what, where, when, why, and how. With these open-ended questions, the witness gets the space to answer questions thoroughly and completely. The idea with direct examination is that the witness is the star; the attorney is simply there to facilitate the presentation of whatever the witness has to say.

Cross Examination

Once the attorney has finished direct examination of their witness, the other side gets a chance to ask that witness questions in cross-examination. An attorney doing cross-examination will be questioning a witness who is there to support the other side. Because of that, the attorney’s job on cross-examination is to point out flaws, holes, inconsistencies and weaknesses in the witness’s testimony. This makes cross-examination more confrontational and requires more focused witness control than is called for in direct examination.

What Happens During Cross Examination?

Questions on cross-examination are allowed to be leading questions, and experienced attorneys will ONLY ask leading questions on cross. Leading questions are ones that include the answer within the question itself. For example, if the questioning had to do with what color a stop-light was at a particular time, on direct examination the question might be simply, “What color was the stop light when the accident took place?” On cross-examination (using a leading question), it might be “When the accident took place, the stop-light was red, isn’t that correct?” This leading question allows very few options for the witness other than yes or no.

Why Use Leading Questions?

In cross-examination using leading questions, the attorney will actually be doing the bulk of the talking and then having the witness confirm or deny what has been stated. Unlike direct examination, the attorney is largely occupying the space during cross, and working hard to pin the witness into very specific answers. Cross-examinations are typically very tightly scripted by the attorney asking the questions, and the attorney is normally only asking questions that they already know the answer to.

What is a Hostile Witness?

So again, the process of direct and cross-examination involves open-ended questions to the witness on direct, and tight, leading questions on cross. The only time this may be different is when a party is dealing with a “hostile witness.” The term “hostile witness” does not necessarily mean that the witness is angry or upset. Instead, it means a witness that an attorney is calling on direct, but that does not support the party’s overall position.

Example of a Hostile Witness

For example, in a criminal prosecution, the prosecuting attorney may need to call friends or family members of the defendant. This might happen where the defendant confessed to a friend that he committed a crime. The friend may not like the fact that the defendant is being prosecuted, and may not agree with the prosecution of the case at all. But the prosecutor may still have to call that person as their witness. If the witness makes clear that they don’t intend to make direct examination easy or that they don’t plan to cooperate, the attorney can ask to treat the witness as hostile.

If the judge grants permission, the attorney then may use leading questions to get the examination done. So the prosecutor might ask, “what did your friend, the defendant, tell you about the incident?” If the witness won’t give a straight answer and the judge allows it, the attorney can switch to leading questions like, “On the night of the incident, your friend came to your house, correct? And when he was there he discussed the incident with you, correct? And he admitted to you that he committed this crime, isn’t that so?” These leading questions can be used to keep a hostile witness more under control than might normally be allowed on direct.

As you can see, this back-and-forth of direct and cross-examination makes up the bulk of the presentation of a case at trial. Knowing how this works is important to understanding what the trial process involves. This is attorney Adrian Madrone, and this ‘Know Your Rights’ segment has been brought to you by the Lustick, Kaiman & Madrone law firm, a full-service criminal defense firm in Bellingham, Washington.

Categories: Jury Verdict,Trial

What is a Closing Argument?

What is a Closing Argument?

Attorney Adrian M. Madrone has teamed up with Law Professor Julie A. Helling’s acclaimed Internet Podcast Series Justice On Trial. In this episode, Adrian discusses what makes a strong closing argument and why they’re so important. To listen to the complete podcast, where Julie also interviews a combination attorney and artist, visit iTunes.

A full transcript of Adrian’s ‘Know Your Rights’ segment is provided below for your convenience.

What is a Closing Argument?

On previous episodes of this podcast, we have talked about the different parts of a trial. These have included jury selection, opening statements, and the presentation of evidence through witness testimony. The last step in a trial, which we will be discussing here, is the closing argument.

Closing arguments are the culmination of each side’s case at trial. This is where each side gets to make their strongest case to the jury for why they should win. Unlike opening statements, which are intended to serve as a preview of the case and should be a relatively neutral in tone, closing arguments should be persuasive and framed in the strongest way possible for each side.

Closing arguments are presented in the same order as the earlier parts of the trial. The prosecutor or plaintiff gets to deliver their closing first, the defense goes next, and then the plaintiff has the opportunity to give one final rebuttal argument before the case is given to the jury to deliberate.

What Should a Closing Argument Include?

There are typically two things that should be covered in either side’s closing argument.

The Facts

First, each side should talk about the facts that came out at trial through the witness testimony. This includes both talking about the facts and explaining why those facts are important to your case. In discussing facts, a party can also bring up things that are missing from the other side’s case, and can argue for why some of the other side’s evidence is weak or not believable. Again, the discussion of facts in closing should be persuasive, not neutral; the attorneys should be very clear about not only what the facts are, but also why they matter.

The Law

In addition to the facts of the case, the second thing each side will typically discuss is the law and how it applies to the jury’s decision-making. Before the parties deliver their closing arguments, the judge will instruct the jury about the law that they are to follow in making their decision. Then in closing arguments, each side will typically refer back to those instructions and highlight the parts of the law that are most favorable to their case.

Examples of Closing Arguments

Example of Prosecution Closing Argument

Here is a short, abbreviated example of how a closing argument might be structured. Let’s say this was a trial for someone charged with a DUI (driving under the influence). The prosecuting attorney’s closing argument may sound something like this: “Ladies and gentlemen of the jury, the evidence we have just presented to you proves that Mr. Smith, the defendant, is guilty of driving under the influence of alcohol. You heard from Officer Jones who pulled the defendant over for swerving between lanes and running a red light. When Officer Jones contacted the defendant, he immediately smelled alcohol and heard the defendant slurring his speech while talking. The defendant then performed some Field Tests, and Officer Jones explained to you all the signs of impairment that he observed. Based on all of the clear signs of intoxication, Officer Jones placed the defendant under arrest for DUI and took him for a breath test. In this trial, you heard about the breath test machine, how it works, and what the results mean. You also heard that the defendant’s breath test result was .12. As the judge instructed you, a breath test result above .08 means that a person is legally impaired and cannot drive a car. The defendant broke that law and committed the crime of driving under the influence. Therefore, I ask that you return a verdict finding him guilty.”

Example of Defense Closing Argument

As an example of a defense closing to this same DUI case, the defense might argue something like this: “Ladies and gentleman of the jury, you have heard the prosecution’s argument, but they have left out some very important issues that came out during this trial. As you recall, in our trial, Mr. Smith testified that he was not under the influence of alcohol that night. That evening, he went out to dinner with a friend, and had one glass of wine. You heard the testimony of Mr. Smith’s friend who was with him, who confirmed this was the case. You also heard that unfortunately while Mr. Smith was driving, he had a mild seizure, which caused him to appear impaired when he was contacted by the police officer. You heard testimony from Mr. Smith’s doctor, who told you about this medical condition. You also heard evidence that the breath test machine used in this case had numerous service issues and a lengthy repair history. You also heard about inaccuracies and issues with the machine that the prosecution could never rule out. The judge instructed you that you can only convict Mr. Smith of this crime if the prosecution has proven their case beyond a reasonable. In this case, there is extensive reason to doubt the prosecution’s evidence, and therefore we ask that you return the only verdict possible. We ask that you find Mr. Smith not guilty.”

Why are Closing Arguments Important?

As you can see, a trial can involve one single set of facts, but with the parties reaching totally different conclusions about what those facts mean. Closing argument is the time in the trial when each side makes their strongest case about the facts, the law, and the conclusions that the jury should reach. Because closing arguments are the last thing the jury will hear before deliberating, persuasive closing arguments are vital to each side’s chances of success.

This is Adrian Madrone, and this ‘Know Your Rights’ segment has been brought to you by the Lustick, Kaiman & Madrone law firm, a full-service criminal defense firm in beautiful Bellingham, Washington.

Categories: Criminal Defense,Jury Trial,Podcasts

Can Police Search My Phone?

Can Police Search My Phone?

Attorney Adrian M. Madrone has teamed up with Law Professor Julie A. Helling’s acclaimed Internet Podcast Series Justice On Trial. In this episode, Adrian talked about whether police can legally search your cellphone without first obtaining a warrant. To listen to the complete podcast, where Julie also covers the details of suing police or jails, visit iTunes.

A full transcript of Adrian’s ‘Know Your Rights’ segment is provided below for your convenience.

Can Police Search My Phone?

Can the courts keep up with technology? That’s a question that comes up regularly in the legal profession. Cell phones are one type of technology that the courts have been considering a lot in recent years. In criminal law, a significant question has been: Can police look at the contents of a cellphone without first obtaining a search warrant?

Why do Police Search Phones?

Before we answer that question, we first have to ask: why would police want to look at a person’s cellphone? Well, as we know, over recent years cellphones have become more and more sophisticated. As technology has evolved, cellphones have been able to store more and more data that might be of interest to police—things like text messages, emails, photos, videos, and location data.

Supreme Court Cell Phone Cases

So, if cellphones may contain potentially useful information for law enforcement, how does the search warrant requirement come into play? The United States Supreme Court had to consider this question in two recent cases: Riley v. California and United States v. Wurie. In these cases, the court was considering specifically whether police had to obtain a warrant for looking into a cellphone after they had placed a person under arrest.

Riley v. California

In the Riley case, police stopped a driver for a traffic violation, found a weapon in the car, then looked through the driver’s cellphone and found pictures connecting the driver to a shooting.

United States v. Wurie

In the Wurie case, police arrested a man for participating in a drug buy. They opened his phone, accessed a phone number in his call log, which they then used to obtain a search warrant on an apartment. The question was whether the Constitution allowed police to search through these phones without first getting a search warrant.

Does a Cell Phone Search Require a Warrant?

Now, older Supreme Court cases had held that after arresting a person, police could perform a basic search of the person’s body and personal items to look for “weapons” or to prevent the “concealment or destruction of evidence.” Here the Supreme Court had to consider whether looking through the contents of a cellphone was the same as asking a person to turn their pockets inside out or patting down their clothing.

In a unanimous decision, the US Supreme Court held that the 4th Amendment does not allow police to open and search through cellphones without first getting a search warrant. Now, there are still many other open questions about cellphones (for example, once police get a search warrant, are phone companies required to turn over data that they possess?). However, on this one question we now know that the data on your phone is protected by the Constitution, and police may not seize and search through your phone without first getting a warrant.

This is Adrian Madrone, and this ‘Know Your Rights’ segment has been brought to you by the Lustick, Kaiman & Madrone law firm, a full-service criminal defense firm in beautiful Bellingham, Washington.

Categories: Legal Questions,Search Warrant

What To Do If You’re Arrested

What To Do If You’re Arrested

Attorney Adrian M. Madrone has teamed up with Law Professor Julie A. Helling’s acclaimed Internet Podcast Series Justice On Trial. In this episode, Adrian discusses the steps to take if you’re arrested.

Intro and outro music provided by Jason Shaw. To listen to this complete podcast, where Julie also covers the appeal process, visit the Justice On Trial website.

A full transcript is provided below for your convenience.

What To Do If You’re Arrested

So you’ve been arrested. What happens next? For most people, getting arrested is one of the most stressful experiences they will ever go through. And as a person goes through the process of getting arrested and booked into jail, it may not always be clear what is going to happen next or when. So here are a few things to know.

During Booking:

Stay Calm

First, the most important thing to do while being arrested and processed is: Stay Calm. Regardless of why you have been arrested, or whether you even should have been arrested, at this point in the process, you will gain nothing by losing your cool. While jail staff are trained to handle people who are yelling, screaming, and fighting during booking, they are human and this will be stressful for them. If you keep your composure, staff will make a note of this, and will likely be easier to deal with as things move forward.        

Take Things One Step at a Time

Second, be aware that getting arrested starts a process. But everything in that process is not going to happen immediately. Be prepared to take things one step at a time.

The first thing in the process is the initial booking. This is where the jail takes custody of the person from the police officer who made the arrest. This also usually involves getting a photo taken, and collecting basic identifying information (like name and date of birth). It will also involve a short interview by jail staff about any special medical needs or other issues they need to be aware of.

Setting Bail

Once the booking is done, jail staff will determine what needs to be done to arrange for your release. With some lower-level offenses, jail staff will have the authority to set a low bail or release a person on their promise to come back to court (known as getting released on personal recognize; or getting PR’d or OR’d). If jail staff determines they can PR you, they will give you paperwork telling you when you need to return to court. Then they will release you. Alternatively, the jail may be able to set an initial bail amount prior to a court hearing. This could be anywhere from a couple hundred dollars to a thousand dollars or more.

What is Bail?

But what is bail exactly? Bail is money that you post with the court system as a promise that you will follow the court’s rules (called conditions of release) and return to court when you are instructed. If you follow the rules, you will eventually get your bail money back. If you don’t, the bail you posted will be forfeited to the court, and you will get rearrested.

What if You Can’t Afford Bail?

Also, people who cannot afford to post the full amount of bail themselves may go to a bail bond company for assistance. Most bonding companies will charge 10% of the total bail amount in order to post a bond on your behalf. The money you pay a bail bond company will not get returned to you, as this is the company’s cost of doing business.

What if There is No Bail?

Now, if the jail cannot set your bail or PR you, you will have to wait for a court hearing to take place. In Washington, a court hearing must take place within 72 hours of arrest so a judge can set bail and conditions of release. Every state will have a time limit like this in their state court rules. Because the rules allow for some delay (like 72 hours), what this can mean is that a person arrested on a Friday night who cannot get PR’d or have bail set by the jail will have to wait until the following Monday for their first court hearing. If you are in this situation, there is unfortunately nothing you can do except wait.

Make a Phone Call

If you are in jail waiting for your initial court hearing, the first to try to figure out is how you can get a phone call. Different jails have different phone systems, and they all have their own ways of operating. Check with jail staff or other inmates about what you need to do to get into the phone system.

Call Someone You Trust

Once you get set up for a phone call, be aware that you may have limited time to talk. So you will want to use your phone time wisely. Call someone you know and trust. Tell that person you have been arrested and tell them where you are. Do not use this call to explain all the circumstances around the arrest. Let the person know that you may be able to talk about the situation later, but for now, there are some important things to get done. You will want to talk about getting bail money together or contacting a bail bond company. If you intend to hire your own attorney, the person you call should start doing some research and making calls to arrange this. Finally, if you have anything that you absolutely need (like medication), let the person know to bring this to the jail and deliver it to jail staff.

Do Not Talk About Your Situation with Other Inmates

Finally, if you are booked into jail and you are waiting to appear in court, there will be a great temptation to talk about your situation with other inmates. Sometimes, this may feel like an easy way to pass the time. Other times, it may feel like you are gathering information about the process from the other inmates. However, it is generally not a good idea to talk about your case with other inmates. Wait until you have spoken with an attorney before talking to anyone else (that means people inside OR outside of the jail). Again, do not speak to anyone about your case until you have talked to an attorney.

This is attorney Adrian Madrone, and this ‘Know Your Rights’ segment has been brought to you by the Lustick, Kaiman & Madrone law firm, a full-service criminal defense firm in Bellingham, Washington.


Categories: Arrest,Bail,Podcasts

Law Podcast – What is the Role of Criminal Defense Attorneys?

Law Podcast – What is the Role of Criminal Defense Attorneys?

Attorney Adrian M. Madrone has teamed up with Law Professor Julie A. Helling’s acclaimed Internet Podcast Series Justice On Trial. In this episode, Adrian discusses the role criminal defense attorneys play in the courtroom and their importance to society.

Intro and outro music provided by Jason Shaw. To listen to this complete podcast, where Julie also speaks with another attorney concerning national security during 9/11, visit the Justice On Trial website.

What is the Role of Criminal Defense Attorneys?

How can you defend those people? As a criminal defense attorney, this is a question I hear a lot. In my career I have defended people in cases ranging from low-level traffic offenses, to the most serious violent felonies—including rape, robbery, child abuse, domestic violence, and homicide.  

While the job of a criminal defense attorney can be stressful at times, I personally have no qualms at all about vigorously defending my clients. Criminal defense attorneys play a vital role in ensuring that the criminal justice system operates as it is supposed to, and does so in a way that is fair and just.

The Constitutional Right to an Attorney

The job of the criminal defense attorney is one of the few jobs written into the United States Constitution. (This is in the Sixth Amendment, which says, “In all criminal prosecutions, the accused shall enjoy the right to…the assistance of counsel for his defense.”) The fact that this role is listed as a fundamental constitutional right conveys just how important this work is.

Why Criminal Defense is Important

The reason that the role of a criminal defense attorney is so important is that every person accused of a crime faces a massive system laid out against them. And every criminal charge carries the possibility that the person accused is actually innocent.

Keeping Innocent People Out of Jail

We hear frequently about people who have been imprisoned for years who are later proven to be completely innocent. The risk of sending an innocent person to jail or prison should be one of our paramount concerns as a society. And it is the role of the criminal defense attorney to fight every case as if their client is completely innocent, and to demand that government produce the evidence that it claims proves otherwise. Without attorneys filling that role and fighting that fight, more and more innocent people could be wrongfully convicted for things they did not do.

Making Sure the Punishment Fits the Crime

Beyond just defending innocent people (which happens occasionally but is certainly not always the case), I want to make sure that if the person has done something wrong and is convicted of a crime, that the punishment is appropriate to the defendant and the crime. It is the defense attorney who pushes back against punishment that is unfair or excessive. For example, an attorney defending someone charged with murder could very well agree that their client’s actions resulted in another person’s death. But the attorney could fight to show that the death was accidental or unintentional, and therefore should be treated as manslaughter rather than murder. Without someone pushing and fighting for an alternative perspective on a case, the system would be stacked unfairly against the defendant.

The Personal Side of Criminal Defense

Beyond the big-picture importance of the role of the criminal defense attorney, the work also takes place on a close personal level. Criminal defense attorneys work closely with people whose lives are in great turmoil. When I meet with a client for the first time, I am typically meeting with someone who is scared, confused, and uncertain about their future. They may not know what they are charged with or why. They likely have no idea what options are available to them, or which option would be best to pursue. Criminal defense attorneys also regularly work with people who have significant issues with mental health and stability. Drug addiction, alcoholism, and anger issues are often regularly present with criminal defendants as well. The criminal defense attorney is the one who sits down with those clients and works with them to try to address the things that have brought them to this point in their lives. Outside of the criminal defense attorney, there is simply no one else in the system that fills that role.

What is it Like to be a Criminal Defense Attorney?

Criminal defense attorneys really have to wear a number of hats in doing their job. Teaching, counseling, advocating, negotiating, mediating. These are all skills involved in being a criminal defense attorney. Sometimes the work can be tiring and challenging. It can require great patience and creativity. But without people doing this work the system would simply fail. So when people ask me how I can do this job, these are some of the things I tell them.

This is attorney Adrian Madrone, and this ‘Know Your Rights’ segment has been brought to you by the Lustick, Kaiman & Madrone law firm, a full-service criminal defense firm in Bellingham, Washington.

Categories: Attorney,Criminal Defense,Podcasts