Process of Prepping for Cross-Examination
Preparing a client for cross-examination in a military sex crime case is a multi-step process. It begins with understanding what the evidence is. As such, we advise all of our clients that no one is required to speak with law enforcement. You have a right to remain silent, and the same is true at trial. You have a right to remain silent and not testify in your own defense.
If you do testify in your own defense, it’s important that you and your defense counsel understand the evidence. The way that we prepare for that is by looking very closely at prior statements given to investigators by our clients. We try to see all of the ins and outs of what our clients told law enforcement in the past. We then implore our clients to take a look at their statements and watch the video interview that was conducted between them and law enforcement. We want them to become very familiar with the information that they provided to law enforcement early on during the investigation. Of course, circumstances and information may change in a case. But, it’s important to always remember what you told law enforcement. It is also important to honestly explain things to a jury in a similar way that you told to law enforcement.
Beyond that, we walk our clients through the entire cross-examination process. For instance, if there is DNA evidence in the case, we walk our clients through how that applies to their case and how that can change things with regard to the statement they gave to investigators. Oftentimes, though, our clients take our advice and don’t speak with investigators. They remain silent throughout the course of the investigation. At trial, neither the prosecutor nor the jury knows their side of the story.
If that’s the case, we simply sit down with our clients and spend hours going over their perspective on what happened. We use the training that we have as former prosecutors to help them understand the potential cross-examination questions that they might be asked. Cross-examination may include questions about prior statements they made, their character, or the facts and circumstances of what happened on that particular event. It’s an hours and sometimes days-long process. We spend a lot of time with our clients. We not only go through their side of the story but also attack their side of the story to prepare them for cross-examination. The work that we do is largely informed by our time as prosecutors. So, we leverage our experience as former prosecutors to make sure that our clients are best prepared for cross-examination.
The single most important and repeated piece of advice we give to our clients before they testify is to tell the truth. Sometimes that advice alone is enough to convince someone not to testify. Perhaps they don’t want the burden of admitting certain truths or perhaps they don’t want to go through the process of being accused of lying in addition to the allegations already against them. When you take the stand, the best way to win the cross-examination battle is to simply tell the truth.
What Strategies Are Typically Used By Prosecutors In A Military Sex Offense Case?
The strategies that the prosecution will use in military sex offense cases will depend on whether the accused previously gave a statement. There are two different scenarios. One in which a client made a prior statement, and one in which the client did not make a prior statement and remained silent. If our client made a prior statement to law enforcement, then the prosecutors know about it. Good prosecutors will go out and interview friends, family members, neighbors, supervisors, and other people who our clients may have spoken with about what happened. In those cases, the prosecutors have some information about your side of the story. A strategy that every prosecutor uses, including when we were prosecutors, is to look at those statements to try to find any inconsistencies. Any time our client says something that’s inconsistent with the evidence or inconsistent with the prior statements of themselves, the prosecution looks for what we call self-serving statements.
When the prosecutor doesn’t know what happened, and the client gets up and explains what happened for the first time, there’s a variety of different ways that prosecutors can attack that. But, it’s really a surprise for the prosecution, which is one of the reasons we encourage our clients not to speak with investigators. You want to save that truth for your last chance at convincing the jury that you are not guilty. But, in those circumstances, even the prosecutors have common tools they’ll use. They’ll often attack the fact that it is the first time they are speaking with you, and that it is the first time you’re telling your story. They’ll argue that you’ve sat through the entire court-martial with the ability to listen to all the evidence before presenting your story, which means to imply that you’re conforming your story to the evidence in the best way possible for you.
Another way they’ll often attack in cross-examination is to confront you on the fact that you have a lot to lose. You are telling a story because there’s a lot on the line. As a result, they’re going to imply that your story is wrong or false because you might go to jail or you might be a sex offender, and you don’t want to go to jail or be a sex offender. All of those could be motives to make up a story that’s convenient. As such, the prosecutor is going to try to argue that your story is ultimately a lie. Therefore, it’s incumbent upon us, as defense counsel, to make sure that you’re prepared for all those things.
