Come Back With a Warrant
Episode 35: Cross-Examination in Criminal Trials: Reasonable Doubt Starts Here
Hosted by Brandon Dinetz and Monica Ishak
Intro
Brandon: Welcome back to Come Back With a Warrant podcast. I'm Brandon Dinetz.
Monica: And I'm Monica Ishak.
Monica: Before we kick-start this week's episode, this is your reminder that this podcast is not legal advice. It's real, unfiltered, and for entertainment purposes only. If you need to speak with a lawyer, call one. Or better yet, call us.
Brandon: Call us.
Episode
Monica: Welcome back. So today we're gonna be talking about all things cross-examination.
Brandon: Cross-examination is a crucial part of trials, especially for defense attorneys. The cross-examination is really where cases can be won and lost. And what we're talking about specifically is the period where we, as defense attorneys, get to question the witnesses that are brought by the state attorney's office. It is crucial and it is a skill that not all attorneys have, but something that all attorneys that do try cases need to work on because it is something that really can change the dynamic of a case right in the middle of a trial.
Monica: Yeah. So I always had, I guess, a hard time grasping the idea of — well, I shouldn't say always, 'cause now I'm a defense attorney. But before becoming an attorney, thinking about the idea of having to present a story without actually putting on any witnesses, and this is something that the defense often experiences, obviously more than the government, because the government has to put witnesses and evidence on in order to prove their case. But when you don't carry the burden, how do you win a case without putting on a single witness? And this happens, so I think it's important for us to talk about it.
Brandon: Yeah, and you make a really good point right off the jump. For the defense, you do not need to put on a case at all. You have no burden. Obviously, we put on some form of a case, but you don't have to. And that's what juries are instructed during jury selection. The defense can basically sit there and do nothing, and the entire burden rests on the government's ability to prove all the elements of their case beyond a reasonable doubt. So when they put witnesses up and we get to question those witnesses, what do we do with that questioning? What is the purpose of that questioning? And then the real question is: how do you do it, and how do you do it effectively?
Monica: Yeah. And there are a lot of different answers and a lot of different things, and I think we're gonna get into a lot of different areas of cross-examination in this episode. But one of the main things — this is the time where the defense needs to be able to communicate with the jury and tell their story through the questions that are being asked to these witnesses. And that's one of the reasons why so many people look at cross-examination as an art and a skill.
Brandon: Mm-hmm. And it's not just for criminal cases, it's certainly across the board. But attorneys that are really good at cross-examination have the biggest impact, in my opinion, in trials. And you see the way that a strong attorney is able to twist the words of the person that's on the stand talking, or ask them things that back them into a corner, and it's effective, and you make somebody squirm on the stand. The jury is paying attention. But everything from your approach to what you're asking has gotta be about how you're presenting it to the jury, and it's really almost like the best cross-examination is the attorney having a conversation with the jury, and they're saying things that are gonna invoke, you know, a yes and no answer ideally from this witness. What you're saying, you're really speaking to the jury at that point and phrasing these questions.
Brandon: I mean, oftentimes when I'm doing cross-examination, I'm looking at the jury. I'm not even looking at the witness that's on the stand —
Monica: Yeah.
Brandon: Unless I need to be and unless there's an effective reason for me doing so. But oftentimes I'm looking at the jury because I'm making these points directly to the jurors, and I want them to be able to see and hear each one of these points that I'm making as if it's me just giving them a speech.
Monica: Yeah. And you're having the witness basically just validate everything you're saying.
Brandon: Right. Hopefully.
Monica: Right.
Brandon: That's the goal. And that leads into one of the major tenets of cross-examination. You never ask a question that you don't know the answer to and that you don't know what the answer is going to be.
Monica: Oh, yeah. I'm, like, having little moments in my head when I first started. I was like, oh, my God, I literally made that mistake so many times.
Brandon: Same.
Monica: In trials —
Brandon: Yeah, as a prosecutor, I had made that mistake a lot of times, with the police specifically I did that.
Monica: Or with a victim and, like, oh, my gosh. I was like —
Brandon: Because you get excited.
Monica: Yeah. And then it's just like you tank the case. You can tank the case that way. It's, like, almost like — you have to pick between — like, I think when you go to trial and when you become a trial attorney, you become a risk-taker, and there are parts of trial where you have to make so many decisions on the whim. And obviously, questioning, you're prepared, but your questions can lead you down another path based on the answers or maybe based on you didn't think the witness was gonna admit to something and they did, so you just took it and ran, and it's developing the case in such a good way that you want to ask that one more question that — you think you can get the answer out, and if you don't know the answer to that question, it could just destroy the case.
Monica: And I remember getting that advice in law school and not really knowing how it would play out. But with experience you just start to learn, like, certain things that you know you can always fall back on or things you cannot do or say. And it's just, I think cross is, as a defense attorney, this is, like, the skill that you need to hone in on of all trial skills because — all trial attorneys do this, but specifically with the defense because you don't have a burden in criminal, you are using the government's witness to tell your story. And in order to do that, you have to be very fact-specific and be able to take whatever their original statement was and see what the inverse is. Like, see how you can flip it to best fit your theme and theory.
Monica: Like for instance, with a police officer, in domestic cases, right? Like, they oftentimes are not present during the interaction. They come, they're called afterwards, or the neighbor called them. They show up, and they write in their report that they received a call to this house. They showed up, and they ended up taking the person in for arrest, taking their statements, and taking pictures of injuries. Like, that is the police report for a domestic case, right? Like, the allegations and whatever evidence there was that they collected after the fact. But there's never really, I witnessed this, I saw this, because it's a domestic matter.
Monica: So when it comes to situations like that, when they present this police officer, the defense's concern in those cases is that a juror would hear that, oh, the officer showed up and arrested this person, therefore this person is guilty, right? Like, that's the conclusion that a juror could make based off of this witness testifying. So the defense's job is to dismantle that. And how do we do that? It's taking that statement and showing what it doesn't say. And a lot of times when you're cross-examining a witness, you're saying things that they never said before, but that their statement kind of implies or states otherwise, if that makes sense.
Brandon: Right. Yeah, no, that totally makes sense. It's what they're alluding to or what they may be saying by omission — you are bringing to light.
Monica: Yes.
Brandon: Exactly. The things they are leaving out or not saying, you're able to bring to light and able to make them have to admit it and confront it on stand and come up with some explanation on the fly to deal with it.
Monica: Exactly. Yeah. Or they'll admit to it. Like, for instance, in the scenario I gave, you can say, you weren't present for the — like, because when they're testifying, while in their testimony they may say, like, I arrived due to an allegation, blah, blah, blah. They're not saying, I came after the fact. Like, you are highlighting that as a defense attorney. You are telling the jury what to focus on, and that goes to your point that you're telling the jury. You're speaking to them directly 'cause you're really telling them the story, and the witness is just saying yes or no. And if they say no, then it could take you down a different path of questions.
Monica: But I think that it's so important to make sure you not only — like, not only is cross-examination impeachment and inconsistent statements and, you know, maybe you're challenging someone's vantage point or challenging certain parts of the case, but it's also bringing to light what was never said, and I think that's super important. Because even in forensics, it's like — if you're talking to crime scene, you know, you didn't do this. You didn't do that. You didn't do this. You weren't there. You're trying to discredit whatever it is that they're saying on the stand.
Brandon: Right. I mean, that reminds me of one of my favorite cross-examinations ever is Barry Scheck with Dr. Fung in the OJ case. And going over all the things that were done or not done properly.
Monica: Exactly.
Brandon: And that was an evidence tech, and that is such a famous cross-examination because he was able to call so much into question just based on this person's involvement and call into question the entire investigation in that case and start raising really raising reasonable doubts as to how evidence was collected, how the LAPD handled the case in its entirety. Famous cross-examinations stick with you. And for us, I mean, even ones that aren't so famous stick with us — ones that we see colleagues or that we've seen colleagues.
Monica: Mm-hmm.
Brandon: But cross-examination — effective cross-examination is a surgeon with a scalpel going in, making the cuts that are necessary, but not making the cuts that are extra deep or ones that are gonna cause potential other injury or cause something that you're not expecting.
Monica: Yeah.
Brandon: The most skilled attorney can go in, ask the questions that they need to ask, and do it in a way that's appropriate. And what I mean by appropriate is if you take the example that you were giving about the police officer in a domestic violence case, you know that one of the things that your attorney's trying to get out is the fact that they weren't there for the actual offense, and as credible as they may be as an officer, because they didn't see any of this, they really don't have credibility to say exactly what happened. So when you are in the position where you're cross-examining that officer, there's a few different things that have to happen. First, you need to get out that information to the jury, but you also need to handle that witness in a certain way.
Brandon: In certain cases, it's okay to be aggressive with the witness that you're cross-examining. The way that I handle it and the way that I've taught people is you do not turn into an asshole unless the jury gives you permission to do so. And what I mean by that is once this witness is, you know, weaseling around a lot, not answering the question, being very combative, then you can start to turn up your own level of aggression, and it looks proper.
Monica: Yeah.
Brandon: Some attorneys come out of the gate very aggressive, very hot, and it's usually ones that are inexperienced doing that. And the jury looks at it and says, this person's putting on a theater performance. They're not actually being an effective cross-examiner.
Monica: I don't think that's the conclusion they come to. I think they think that you're an asshole.
Brandon: Well, oh, I think so also. Yeah. For sure. I think they're like, F this guy. This person's just being —
Monica: Right, and that's totally right, and I think that takes away from —
Brandon: Your credibility.
Monica: Whatever, yeah, and the authenticity of whatever you're trying to present.
Brandon: But that's such a big deal, and I've totally done this in the past —
Monica: Me too.
Brandon: And been too hot on a cross-examination to the point where I once in a trial, after a cross-examination that was too hot, I said to the jury and I brought up to the jury, you know, during cross-examination I may have went a little bit far and I may have gotten caught up in the heat of the moment. That's on me, and I'm not saying that this person, this individual, and this was when I was a prosecutor, I'm not saying that this is the worst person that's ever existed or that they're a total criminal, but what I am saying is they did this thing on this day, and they should be held accountable for it. But that doesn't mean that I need to be overly aggressive, and I took responsibility for it right in front of the jury because to me it was important to maintain credibility and I didn't need them thinking, oh, this was just some hotshot prosecutor that always is aggressive with people, like we're in a movie.
Monica: Yeah.
Brandon: Because the one thing that cross-examination isn't is — it's not like it is in the movies and in TV.
Monica: Oh my gosh, yeah.
Brandon: You're not gonna get that smoking gun question. They're not gonna make the big admission on the stand. It just doesn't happen that way. So you can't have the expectation that that's gonna happen, and in the back of your mind when you wanna ask that one extra question, you need to have the patience to hold off and deal with it in closing arguments.
Monica: Yeah. It's always — that one extra question in my head, is always that, like, you have some other contradictory piece of evidence that can be inconsistent with this piece of testimony that they just gave you, and instead of confronting the witness with this extra piece of evidence, just take that statement and go to closing and be like, how can this be true and also this be true when the government is presenting both to you —
Brandon: Mm-hmm.
Monica: As truth? You know? And so you don't need to ask the witness that. The witness doesn't need to talk about it. And as much as you wanna be like, hey, well, what about this? You have to restrain yourself.
Brandon: When you have a witness on the stand, the way that you are able to act and behave —
Monica: Oh, yeah.
Brandon: Yes.
Monica: Given —
Brandon: Given what they're giving you back —
Monica: Yeah.
Brandon: As opposed to starting off hot.
Monica: Right. And so oftentimes when you're in insurance defense or when you come from criminal background and you go into civil, a lot of the times people associate people going from the state attorney's office, I don't know why this is, to an insurance company and the PD's office to, like, plaintiff's lawyer's side.
Brandon: I would think it would be the opposite. Like, prosecutors would stay on the plaintiff's side to represent —
Monica: I understand —
Brandon: The victim versus —
Monica: I understand both, I guess. Because I also did kind of feel like I was a little bit, I don't wanna say prosecutorial in a sense when I was at the insurance defense, when I was on the insurance defense side.
Brandon: Okay, so I guess the comparison is that you're representing an entity, right? You're not representing a single individual.
Monica: Okay, I get that.
Brandon: And so that's the difference, and I think a lot of the plaintiff attorneys have similarly situated clients as you do when you're in criminal defense.
Monica: Understood. Got it.
Brandon: So people who are not — who don't come from, like, you know, oftentimes a lot of money, but that's not always the case. Sometimes people do. But anyways, in insurance defense, you're representing the entity that has more resources.
Monica: Big power.
Brandon: Yeah, exactly.
Monica: Like the government.
Brandon: Yeah, exactly.
Monica: Got it. So that kind of idea. But anyway, so I was on trial team for this in-house at this insurance company, and I was cross-examining the insured in a case. And, ah, I'm, like, getting, like, my heart's racing just thinking about it 'cause I'm like, I went so hard because I was never in this position. It was such a learning curve for me 'cause I always felt like if you go hard as a defense attorney in a criminal case, it has to be appropriate, but it's also, like, you can be outraged at certain things, and it makes sense, right?
Brandon: Right.
Monica: Like, more so in a criminal case than in an insurance case.
Brandon: Fair enough, right.
Monica: As coming from the criminal defense side versus, like, the insurance defense side. The insurance company's lawyer doesn't need to be that upset, right?
Brandon: Right. Ultimately, if their company has to pay out, like, they have the money. It's not that big of a deal.
Monica: Exactly, and all the jurors know that. Meanwhile, we have, like, two or three attorneys at the table, but then we have paralegals and all these resources at the table, and then the other side has, like, one lawyer. So, like, it already looks that way. I don't need to re-emphasize that. But anyways, all that to say, I had an experience very similar to that, and even now just thinking about it, I was like, I didn't realize how aggressive it was until I sat down at the table and my co-counsel was like, you need to cool it. She was like, you didn't have to go that hard on the insured. And I was like, what's done is done.
Brandon: I mean, at that point, yeah. Like, what can I do?
Monica: But whatever. I mean, it is what it is. It was not a great case anyways, and also, I don't really care about the insurance company, so —
Brandon: Fair, fair enough.
Monica: But it was definitely a learning experience for me.
Brandon: Fair enough. Yeah, so I definitely caused or would have caused, at least in one case that I can think of, a mistrial by something that I asked, as a prosecutor.
Monica: That you shouldn't have asked.
Brandon: That I should not have asked. The defendant took the stand, and I got a question off that I shouldn't have asked, and the moment it came out of my mouth —
Monica: You knew you shouldn't have.
Brandon: I knew I shouldn't have asked it. And it had to do with a prior bad act that they had done, and I knew something, and for some reason, I thought they had kind of opened the door. So the question came out, and immediately defense objected, went up, and asked for a mistrial, and I kept my cool. I kept my composure. The judge was looking at me like, yeah, you did. And I was like, all right. Well, you know what? I did the damage. I'm not gonna ask another question that's near it. I'm not gonna do anything else. Fought the rest of the case out. It wasn't a strong case for the state to begin with. We wound up — it wound up being a not guilty, so it didn't matter that what I had done, thankfully. Because otherwise it would've been a mistrial.
Monica: I have a question. Why is it that the state is so anti-mistrial?
Brandon: Well, there's a lot of reasons. One, they're —
Monica: I know it's resources.
Brandon: Trying to —
Monica: Okay.
Brandon: But you're, you're taking a case to trial that you believe should be — there is a reasonable likelihood of a successful prosecution.
Monica: Right, but if you have a mistrial, you just do it again.
Brandon: Right, but you're — okay, but the —
Monica: Like, the defense —
Brandon: You don't wanna try it again.
Monica: Defense doesn't want that either.
Brandon: You don't wanna try it again. You don't wanna go through the resources and pick another jury panel and there's a lot of reasons why you don't wanna do it over again.
Monica: But those are no different than reasons why a defense attorney wouldn't wanna do a mistrial. But I think in the interest of justice, if something like that happens, would it — is it, like, I feel like it's like the state attorney's office is like policies. Like, you do not agree to a mistrial or ask for a mistrial. Like, is that true, or am I making that up? I don't know. That's just from my observation. There have been times in trial that I believe — I don't wanna say, like, maybe the state did kind of acknowledge that it shouldn't have happened, but they still are fighting the mistrial argument.
Brandon: Yeah, I mean, there was not an argument to be made on my side.
Monica: Like a legal one.
Brandon: Right. There was no legal argument to be made. And that's probably why —
Monica: But I — in this one case the judge reserved on that.
Brandon: The judge reserved. Yeah, the judge didn't rule on it. And I think if the case would've came back guilty, the judge would've granted the mistrial.
Monica: Right.
Brandon: And then that would've been problematic for that person, because that individual would've had to go through it all over again.
Monica: You have to go through it again.
Brandon: Yeah. Whereas, in this case, the jury didn't — whatever I said was nowhere near impactful enough to resonate with the jury that they were gonna change their mind, and they came back not guilty.
Monica: Yeah.
Brandon: But I never was in a position at the state where there was a mistrial argument being made that I was like, oh yeah, I would agree to that.
Monica: Yeah. Right. They never do.
Brandon: Yeah.
Monica: I'm just wondering why that just wasn't a thing.
Brandon: I don't know. But it just is not a thing. It was almost — that'd almost be like asking for a loss.
Monica: No, it's not, because you're just starting over. But I get what you're saying. Like, I get what you mean. Like, it is kind of a win for the defense when you do get a mistrial, because you're like, okay, we get another opportunity to do this better, right? Like, you kind of have a little bit of a — you kinda see a preview of the case.
Brandon: Depends. Because you're also locked into a lot of shit now, and that's — well, usually the second go-round of a case usually benefits the prosecution. If a case is tried more than once, it usually benefits the prosecution. Because you now have the transcript from the first case. And now this individual, if the defendant hit the stand in the first case and they're taking the stand again in the second case, now there's a whole new line of questioning that could lead to impeachment and different new ways that you can lock in, and the defense is now locked in. They're not gonna be able to change —
Monica: But same with state. Like —
Brandon: Right, but the state — you knew the state's argument. The defense knew the state's argument to begin with. If it was a, you know, depending on whatever the case was, the state knew. You knew what the state's argument was.
Monica: I think it depends, because if there's a mistrial that happens during government's case in chief, which is during their witnesses —
Brandon: Mm-hmm. That's different.
Monica: And depending on which witness is testified, like if it's an interested witness like a victim in a domestic case or maybe a neighbor witness type situation, who knows, then you might be able to get different statements depending on the type of case it is, and then you can have the same benefit for the defense. But I agree with you. Once the defendant takes the stand and there's a mistrial after that, like, good luck.
Brandon: Yeah.
Monica: Unless it's, like — I don't know, I guess it just depends on the client. But, like, usually I just try to avoid my clients taking the stand altogether. If they don't have to do it, please don't do it, you know?
Brandon: Yeah, that's true.
Monica: But that was just a side question, 'cause I was always wondering, why is the state so anti mistrial? I'm like, just agree.
Brandon: Yeah. I think it ultimately comes down to it's a massive —
Monica: I get it.
Brandon: Waste of time and resources, and it's expensive to try a case.
Monica: And exhausting. Yeah. Especially when you're at the PDs and state, 'cause, like, the judge will literally bring you in and be like, okay, when are we doing this next?
Brandon: Right. And if we're talking about something that's low stakes, you know, a low-level misdemeanor or something that's kind of silly to be, that but it had to go to trial, which usually are the, like a misdemeanor domestic or a misdemeanor battery or certain DUIs. I remember one case that I had that the first time the jury was hung, it was an improper exhibition of a firearm case, and the jury was hung the first time we tried the case, and then we had to retry. We retried it, and we got a guilty the second time.
Merch Break
Brandon: Hi, everybody. This is Brandon Dinetz and Monica Ishak from Come Back With a Warrant Podcast. We are very excited to introduce some of our new merchandise for 2026.
Monica: We've got the cool crop top shirt with Come Back With a Warrant Podcast on the back. We have the brand-new all-black hoodie. And we have our full shirts coming out on — I was saying. Full shirts.
Brandon: Full shirts, meaning T-shirts.
Monica: And we have full shirts. Not cropped, non-cropped T-shirts. We have our non-cropped T-shirts dropping, and make sure you subscribe to our newsletter to stay tuned with all of our latest promotions and merch drops.
Brandon: And if you don't like our merch —
Monica: Come back with a warrant.
Episode (continued)
Brandon: But that was one of the only times I remember retrying a case and it was a total — we totally had the upper hand in that because the defendant had taken the stand, and —
Monica: Wow. Yeah, you, like, knew it.
Brandon: I mean, I impeached the shit out of him on the stand, and there was nothing he could say that made him look less like a liar every time I was asking a question.
Monica: Yeah.
Brandon: There was a DUI you and I had that we busted the first panel, and then the judge brought up another panel.
Monica: We were questioning the jury until, like, the afternoon, so we pulled another panel of jurors, like, in the afternoon. This was pre-COVID obviously.
Brandon: Yeah.
Monica: Because post-COVID you don't have this luxury anymore. Like, I have not had this experience.
Brandon: Where you could pull a second panel in the afternoon through the same day.
Monica: Yeah.
Brandon: Yeah. It doesn't happen.
Monica: We're, like, low on jurors. And then we tried the case, took all week, hung jury, and then I got moved out of that division, so I didn't handle the case. I don't know what happened. I think it probably resolved with a plea or something 'cause it was a hung jury.
Brandon: Probably.
Monica: So, but I remember I was like, I feel like this is going to be just another whole — some cases just never go away. I'm like, go away.
Brandon: Yeah.
Monica: Yeah. Like, with the busted panels, like, freaking kidding me?
Brandon: And to explain, like, a busted panel — it's kind of a mistrial — means when the jury panel is brought up for initial questioning, neither side agrees really on the parties, and everybody uses the strikes that they have. And then there are some additional strikes that are able to be used on jurors, and you get to a point where if you had, let's say, 30 jurors come upstairs to be questioned, you get to the point where there are less than the number you need to sit —
Monica: To try the case.
Brandon: And that is called a busted panel, and that means that you can't move forward with that jury panel at that point, and you need to get a new jury panel if you wanna move forward.
Monica: Yeah. Or you can — it depends. Some judges will keep the good ones, like, the ones you agree on. Like, if you need, let's say you have four that you agree on, and you need two, three more, then they'll just bring a few more of those —
Brandon: Yeah, that's a nice scenario.
Monica: Yeah, you don't have to start over.
Brandon: That's in the really, in really big cases, and in federal cases, and in just high-profile cases. They're a lot better with that because they start with very large size panels —
Monica: Yeah, they know how much work it took to get there.
Brandon: And they are able to whittle it down and get the right number of people you need to sit on the jury panel.
Monica: Yeah. Exactly.
Brandon: But back to cross.
Monica: Yeah. I think cross-examination — they teach you this in law school about, like, you're asking leading questions, so the answer is in the question. One fact per question, or I should say one new fact per question, 'cause if you wanna loop and emphasize something and say, well, like, after you grabbed my client by the hood of his shirt —
Brandon: Mm-hmm.
Monica: Or whatever, you did this, and that's the new fact, right? Like, there are just things that you kind of — and this is what I was saying before we went live, is that there was a long period of time that I didn't try a case, like almost a year, and so I was like, I need to brush up on my cross, and I got this book, McCarthy on Cross-Examination. I got it off Amazon, published by the ABA, and it was just the basics of cross. And it was really good, and I still have it to refresh, but sometimes it's just good to go back to the basics of, like, what you learned. And even though impeachment, I have memorized, like, how to impeach somebody, I still always have something in my notebook or whatever my trial prep materials are, just to have all the basic stuff there. Because if I ever wanna go back and look at it or I have a brain fart for some reason, it's there.
Brandon: Mm-hmm.
Monica: But I always find that you don't need to overcomplicate it. You don't need to — like, I think that just remembering the basics and kind of trusting your instincts in trial after you've had experience is really all you need to prepare, aside obviously from preparing the case. But there's no real need to prepare, I guess, the presentation of a cross.
Brandon: That's true. That's true. I think the way that I generally have prepped crosses, and this goes back to how I learned it in law school — you have a few topics that you'd wanna address.
Monica: Yeah.
Brandon: And you take each of those topics, and you lay out questions that basically lead into a crescendo.
Monica: Yeah.
Brandon: And get up to that point where you're riding that wave. You get them all the way, all the way, all the way up to where you have the question that you wanna ask them. You ask the question right before that question, and then you're done, and you move on to the next topic. And you leave that last bit that you wanted to get, that last really, really juicy nugget, you leave that for closing arguments.
Monica: Closing argument.
Brandon: Everything is sectioned —
Monica: Mm-hmm.
Brandon: And then building up. But then you have to also leave room and space for things that change during trial because the questions that they're asked on direct examination —
Monica: Yeah.
Brandon: And the answers that they give on direct examination, you may not have been anticipating, and you may say, oh, well that was great. I need to jump all over that. So oftentimes while you're in trial, you're prepping different parts of a cross. You're adding to your cross. You're hearing this is the argument from the state attorney's office. This is their opening. This is their theme, and they're gonna make this such a big deal, and their directs of each one of the witnesses, put that into the cross. Let's flip that bad boy so that way —
Monica: Yeah.
Brandon: We have it set up. And then again, we can use it for closing argument.
Monica: Yeah.
Brandon: Because everything you're getting out of your cross, you wanna be able to use in your closing —
Monica: Yes.
Brandon: And be able to point back to the way that that witness behaved on the stand with you, the way that that witness behaved on the stand with the opposing counsel, the way that that witness was answering questions, and then really what the content of their answers was, and use it against them and flip it.
Monica: Yeah.
Brandon: But also maintaining the appropriate attitude and demeanor.
Monica: Yeah.
Brandon: When you talked about the officer before in a domestic case that wasn't there for the actual incident, shows up after, takes statements, takes a report, makes an arrest. No need for drama. There's no need to be aggressive with that officer.
Monica: Yeah. Like, what are you proving?
Brandon: Yeah. You're proving that the stereotype that all defense attorneys hate cops is a thing. Like, what are you actually proving by doing that? Nothing.
Monica: Yeah.
Brandon: And it's not effective, and it takes away from your credibility. And if anything, if the officer maintains their cool, it boosts their credibility on the stand. So there's no reason to do that.
Monica: They'll confidently be like, yeah, I wasn't there.
Brandon: Right.
Monica: And you'll be like, yes.
Brandon: Right. And you just have to be like, look, look, man. You weren't there for this, right? Okay. You didn't see anything. Like, you were just doing your job. You were doing your job, right? Okay. But you didn't see anything. You didn't hear anything. You weren't there for anything. You're just hearing about this after the fact, and you're here today telling us that, right? That's it. Okay. Thank you.
Monica: Yeah. Thank you. Bye-bye.
Brandon: Goodbye, yeah. You can stay polite. Get off the fucking stand now. Let's move on to the people that matter.
Monica: Yeah.
Brandon: Because if you have effectively gotten through that witness, you've basically shown the jury that this person was just put on the stand to try to bolster the state's case, but they really add nothing to it.
Monica: Exactly.
Brandon: And you've effectively shown that without being a jerk, and you can move on.
Monica: Exactly. I think this dynamic changes a little bit with police, especially when it comes to, like, large investigations —
Brandon: Sure. Of course it does.
Monica: Because that is a reflection of truly — like, I think a lot of officers can acknowledge — and I don't think their ego would be so hurt that they've made bad arrests in domestic calls, right? Like, I think that's fine for them to admit, right? But, like, it's much harder for an officer to spend time investigating a case, right? And thinking they really got this person that is the defendant, now the defendant in the case, and is in court, has written a lot of paperwork or police reports, supplemental reports, has questioned the defendant, has spent a lot of time and energy in their investigation. And so when they come into court, they seem a lot more invested in the more serious cases because this is literally their career in terms of how they're investigating the case. So, like, I think that that only goes so far.
Brandon: I think it's rare that you're in a situation where it's almost casual with the officer.
Monica: Yeah.
Brandon: I think that only happens in cases, mostly just misdemeanor cases where the officer wasn't there for whatever the conduct is.
Monica: Exactly. Then that's it. But even once you get to a DUI —
Brandon: Yeah.
Monica: That changes.
Brandon: Yes.
Monica: Because you're questioning everything they did —
Brandon: They're more interested. Yes.
Monica: During that investigation. Exactly. And you're really going into the specifics.
Brandon: Yeah. Whereas, like, you showed up, you took a report, you left. That's few and far between.
Monica: Yeah. And the officers that really dedicate the time, and the detectives that dedicate the time to the serious and the violent cases, for the most part, they're prepared. They've put in a lot of work.
Brandon: They're very prepared, yeah. And they are going to be defensive —
Monica: Yes.
Brandon: About their positions.
Monica: Exactly. And they should be able to speak on the decisions they made during that investigation and should have answers as to why they did that and why they didn't do certain things.
Brandon: Yeah.
Monica: Yeah, because then they're defending their work, like, if you think about it. So, like, they're more interested in the case. I always wondered because — I think it was the first really serious case I tried, it was a second-degree murder, and the officer took the stand. So before trial, the defense always invokes the rule of sequestration, which means we're asking all witnesses to be outside the courtroom, and we invoke that rule, and then the judge made a ruling that after their testimony they can come and stay. And we were thinking that was related to more interested witnesses, like neighbors and friends of the person who passed away. And we understood, okay, you wanna sit in in the rest of the trial. But then the officer testified and the investigator sat back in the courtroom, and I was like — why are you here? Like, don't you have places to be? Like, don't you have things to do? Like, this is just a part of your job. And it was just — that's when it clicked to me. I was like, oh, it's definitely a lot more to the investigators involved in serious cases. It made a lot more sense.
Brandon: I mean, they put the time in, and they think they got their person on this. They really believe they got the right person. And they have put a lot of hours into the work. I appreciate that, if anything, because that's somebody standing behind the job that they did, and they're really caring about what the result is. I can appreciate that just from a human person that works and cares about the job that I do. But I think it's few and far between that police, like, wanna hang out in the courtroom after they've testified.
Monica: I've seen it happen.
Brandon: And wanna still be there. Yeah, I mean, I've seen it a couple times in serious cases.
Monica: I'm like, oh, okay. In more serious cases it makes sense.
Brandon: Yeah. And they've developed relationships with the families —
Monica: Other witnesses in the case, yeah.
Brandon: Of the victims and things, and they care about —
Monica: The outcome.
Brandon: The outcome. Which I appreciate people that care about their work because they're gonna try to get it right. But if you're gonna cross-examine them on that and be like, oh, you know, do you care about the outcome of this case? They'll be like, no.
Monica: Well, right.
Brandon: Yeah, I mean —
Monica: This is just a part of my job.
Brandon: Right. Whatever. I mean, look, I appreciate people that are invested in their job. And if an officer is —
Monica: Within a minute.
Brandon: Stand on it. Say it on the stand. And say that they are invested, that they care about the cases —
Monica: Yeah.
Brandon: That they work on. Yeah, I don't see why they shouldn't be able to say that.
Monica: Yeah.
Brandon: But, you know.
Monica: Yeah, well, you never know what you're gonna get.
Brandon: Yeah.
Monica: But I was gonna say, when it comes to cross-examination, 'cause you were saying tying certain things in cross into closing, I always use the instruction, the reasonable doubt instruction in my closing. That it can be found in the evidence, in the conflicts of evidence, and in the lack of evidence. And cross-examination is so good with that because I literally break it up into those pieces.
Brandon: Mm-hmm.
Monica: And take whatever was — if it's a conflict in the evidence, obviously that's impeachment. So you can say, like, this person had their own conflicting statements, and this is an unreliable witness. Also the credibility of the witness instruction. So using the law that the jury receives and aiding them in closing, giving it to them in closing with the testimony that was extracted from cross and telling them why this person should be found not guilty. So it all ties together in the end. And while the witness is testifying, I think you're presenting a story within a story. You're presenting that person's POV, right?
Brandon: Mm-hmm.
Monica: Or your client's POV through that person's lens or whatever. And then in the end, you tie it into the bigger picture and why this is important and significant. And so I think that's why — obviously, we emphasize the fact that defense doesn't always present witnesses. Technically, defense doesn't have to do anything. But I think when we say that, there — you can take the trial and look at it and say, okay, defense didn't really do anything. But when you see that the defense actually did a successful cross-examination, and whatever they tied in together in closing, these are all ways that we are defending the case without putting on a case. And so I think that's why cross is just so important, 'cause it's how cases are won for the defense oftentimes.
Brandon: Right. And then there's also another big part of cross where you have to control the witness.
Monica: Yeah.
Brandon: And that has a lot to do with, first off, your demeanor and the way that you do it, because you can get witnesses that are weaselly and try to get out of the question or try to get around the question that you're asking to give —
Monica: Or overly emotional witnesses.
Brandon: Right. Or try to give —
Monica: Like —
Brandon: Information that they think is relevant or is gonna make them seem better.
Monica: Yeah.
Brandon: Based on the question that you ask, they are gonna say, yes, well, that may be true, but here's all this other —
Monica: Yeah.
Brandon: Like, bullshit that I'm gonna tell you and spew out. That's where the experience of the lawyer —
Monica: Yeah.
Brandon: And the lawyer's relationship with the judge come into play. And what I mean by that is a good lawyer will understand that they are controlling the show during the cross-examination. They will respond back to this person that, you know, that's not what I asked you. Answer the questions that I'm asking you. The questions I'm asking you require a yes or a no answer. They don't need this extra bullshit. And if you're not able to make a one-off statement here or there showing them that you're in control, you could then look to the judge, and the judge will instruct them that they need to stop fucking around, and they need to answer the questions that are being asked.
Monica: Yeah.
Brandon: And once you're in a position where the judge gets involved, the jury is now aware that this person is fooling around too much —
Monica: Yeah.
Brandon: Is squirreling around too much. And that person starts to lose their credibility just based on the fact that they're not answering the questions in a straightforward way.
Monica: I had a domestic felony trial, and the judge stepped in on his own, and I didn't realize the impact it had in the moment because in the moment I was just trying to get through my cross. Like, this woman was being so difficult, and I was going back and forth with her. Same thing, like what you're saying. Like, I was like, it's yes or no. Just answer the question. We don't need all this stuff, whatever. Then the judge just stops, and he's like, ma'am, you need to — and she was the victim in the case, so it looked even more, I guess, dramatic. And I didn't realize until after we had ordered the —
Brandon: Recording.
Monica: Video. Yeah. And we watched it, and I was like, oh my God, that's so crazy. I didn't realize how bad it was, and I didn't realize the impact the judge has on literally stopping the proceeding in front of the jury. And oftentimes I think judges will take the jury out to do this.
Brandon: Yeah.
Monica: But he didn't, and he talked to her, and then she wouldn't stop, and then he took them out. So I think to them it even looked even worse. Like, okay —
Brandon: Oh, yeah.
Monica: We need to stop this whole thing and take them out because she wasn't listening. So it's nice when the judge is, like, kind of already listening and present and is like, come on, you know? Especially if it's a judge that doesn't like to waste their time, and they're like, this witness is BS-ing, and we need to just get the show on the road, you know? Oftentimes that's taken out on attorneys, but it was nice for this judge to be like, no. Witness, get it together.
Brandon: Yeah. I mean, that's huge.
Monica: Yeah. So that was pretty cool.
Brandon: That could be a turning point in a case. That happened to me one time. I mean, it was a successful outcome, so.
Monica: Yeah. It was a great case, but that was another situation. She was an overly emotional witness that — that case, honestly, I want to, like, hopefully I can find the client and actually talk about the case eventually 'cause it's a really good case. It's a good case to talk about 'cause there was, like, so many different aspects of it, and that was one where it was like we didn't present any witnesses, and there were a bunch of witnesses on the government side. And it was just — it was a really good case.
Brandon: Yeah. Well, it doesn't matter. The number of witnesses is not what it takes.
Monica: Yeah, yeah.
Brandon: It's how good they are as witnesses.
Monica: Yeah.
Brandon: You know, you can have 100 shitty witnesses, and that doesn't do much to build the case.
Monica: Listen, I feel like that's what they did in the P. Diddy case. Brought in as many witnesses as they could?
Brandon: Yeah. Yeah. Well, they were never gonna get him on RICO, not in front of that jury.
Monica: Yeah. Just wasn't happening.
Brandon: Or with that defense team.
Monica: Yeah, that defense team was stellar.
Brandon: They were not gonna get him.
Monica: Yeah. I mean, we've talked about the Diddy case before. I don't know if we've really gotten into it on this show, but you have to pick and choose the charges that you're gonna bring, and you can't — if you overcharge or you charge incorrectly, you're gonna pay for it with the verdict. I was surprised with even the facts of Cassie's domestic violence situation in the hotel was coming in.
Brandon: Yeah.
Monica: That instance and that video shouldn't have even came in, in my opinion, because they didn't charge it. And then — I don't know if you watched the Netflix documentary. Okay, so I was just gonna say — I don't want anybody taking that I believed that that RICO was never gonna go through to be any sort of way that I'm condoning anything that Diddy has done, and I mean ever.
Brandon: Yeah.
Monica: 'Cause if you watch 50 Cent's documentary, which I think everybody should watch — I think the Final Reckoning, I think it's what it's called. Something like that. That shows how bad of a person Diddy is and has always been.
Brandon: Yeah. I think that just scratches the surface.
Monica: Yeah. I think the government just dropped the ball on that case.
Brandon: Right. And I think the government should have taken some more time. And if they would've gotten some of the evidence that 50 Cent was able to get, they could have gone after him for a hell of a lot more. And if they wanted to go after him for RICO, going after him for organizing the hit on Tupac —
Monica: The fact that he's not being prosecuted in that — I don't understand that at all.
Brandon: It was almost — I don't know. I really don't understand how he has been able to avoid prosecution for the murder of Tupac. I don't understand it.
Monica: It is laid out so plainly in that documentary. They have witnesses. They literally have witnesses that will come to court. This guy told on himself, and he's being tried. He's the one that's being tried for the murder.
Brandon: Yeah. He was literally one of the guys in the car that — but the government oftentimes takes these individuals, flips them against the big guy, gives them a deal. And then they get all of them.
Monica: Yeah. But I don't know why they're not doing that.
Brandon: Yeah, no, Diddy is responsible for —
Monica: And then also Diddy's an idiot for — I'm saying it, I'm saying it.
Brandon: He's totally responsible for the death of Tupac.
Monica: Yeah.
Brandon: And probably responsible in part for the death of Biggie.
Monica: Yeah. I think both. If not fully responsible, I'm sure he's got some involvement in that too.
Brandon: But his relationship with the Crips in LA, and him literally putting out a hit and saying a monetary amount on Tupac, I don't understand how the government just — that was just not included.
Monica: Yeah, I think the government was very focused on Cassie, and the allegations with Cassie, and not focused on the overall acts of P. Diddy over time, and his kind of rise to fame. And I think all of that — it's kind of like the way 50 Cent portrays it in the documentary is how the government should have presented their case in court.
Brandon: That's exactly right.
Monica: Like —
Brandon: That's exactly right. They would have gotten RICO. They should not have made it about the sex parties —
Monica: Yeah, like —
Brandon: And about the baby oil. That was bullshit. That was smoke and mirrors compared to what he did out in LA. I think they could have gotten him. If they would've waited till this documentary came out and got the evidence that 50 Cent had, they probably could have gotten him on a hell of a lot more.
Monica: Well, he got it because P. Diddy was recording himself leading up to his arrest. Like, first of all —
Brandon: And then didn't pay those guys.
Monica: He didn't pay the videographers 'cause he thought he was gonna win his case. He was busy paying his legal fees.
Brandon: Yeah. I read this morning Diddy's made $4 million since he's been in jail on renting out his private jet.
Monica: Why the fuck hasn't that been seized? It's so crazy, like, how the state of Florida goes —
Brandon: I don't understand the government.
Monica: The government picks and chooses.
Brandon: Yeah.
Monica: I'm thinking about my cases against the state of Florida, where they're doing the most on certain cases, where I'm like, my client doesn't have the resources you think they have. I don't know, man. And then when I see cases like this, I'm like, are you freaking kidding me?
Brandon: I don't know. So, 50, wherever you are, man, keep doing it.
Monica: Yes.
Brandon: Put out a documentary on somebody else next. I wanna see who else they've got.
Monica: Well, I'm just kidding. There's rumors he's got shit on Jay-Z, LeBron.
Brandon: I saw that.
Monica: I saw that, and I'm — listen, I'm here for it. I am for it. I don't know why I even brought up P. Diddy.
Brandon: But what were we talking about? We were talking about cross-examination. Use the state's witnesses.
Monica: Okay. I think we talked a lot about — oh, I guess we should talk about impeachment, like, what's worth impeachment, when we should, right?
Brandon: We can. I mean, bottom line is one of the best and most effective uses of cross-examination is when you're impeaching somebody, and it's really using their words against them.
Monica: Yeah, and I was gonna say, you were saying this earlier, that there's never this, like, one question that you get the answer to and you're like, ah. But I think the exception to that is impeachment 'cause when I successfully impeach someone, I just wanna celebrate right then and there. It's, like, the best thing that can happen in your case, and the reason why is because usually when you impeach, it's a big fact. And the classic example they give in law school is, like, when it's a car accident case, and it's like, was the light red or green, you know?
Brandon: Right, and what have you said in the past? What — did you say the light was red or green in the past, and now you're saying XYZ on the stand?
Monica: Yes. Let me impeach you with your —
Brandon: Yeah.
Monica: Which is, like, such a big deal because you're proving your point in one question.
Brandon: Right.
Monica: So I think that impeachment is important to nail in the sense of, like, you know how to smoothly do it, but it's so formulaic — I don't know if formulaic is a word, but it's a formula to follow. And once you have it down, it's so successful when you do it in trial, and it's such a great thing to watch.
Monica: Last thing I'll say, I was a juror for FIU Law's —
Brandon: Mock trial.
Monica: Mock trial. Like, final trial for their students. And this actually counted as a grade, and they were recorded in the Miami courthouse, and we came and we were their jurors. Like, all a bunch of attorneys basically. And then they had a real sitting judge who was ruling on the evidentiary objections. Anyways, it was just so cool to see, like, these students just kick ass in trial. 'Cause obviously this is the final, so at this point they've done this enough times that they have mastered it.
Brandon: Mm-hmm.
Monica: And at least it's a fake case, and they've practiced it or whatever. So it's just so cool to see, and I'm like, oh my God, yay. So I remember seeing the impeachment being done really well this past semester at FIU Law's thing, and it was just so cool to watch. And I'm like, I love this. 'Cause you don't appreciate those moments until you've passed. I feel like it's hindsight and you're like, oh, wow, I forgot how great that felt. You know what I mean?
Brandon: Yeah.
Monica: So.
Brandon: Well, now when you get to do it in real life it's even —
Monica: Yeah, it feels even better.
Brandon: It feels even better.
Monica: Yeah, it's true. 'Cause there's a lot riding on it.
Brandon: Yeah.
Monica: Yeah, especially when you have all these crazy witnesses, but anyways. I think that's it, right? Do you have anything else you wanna talk about?
Brandon: No.
Monica: Okay. No, I don't.
Wrap-Up
Monica: Well, if you liked listening to our show, make sure you like, comment and subscribe. We are on all platforms, comebackwithawarrant.pod. Give us a 5-star review and subscribe to our weekly newsletter. And if you didn't like listening to us —
Brandon: Come back with a warrant.
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