Category: Posts

Episode 6- Witness Credibility

While some trials involve forensic or scientific evidence, all trials involve an element of witness credibility.  Historically and as a matter of common sense, we know that some witnesses will lie, get together and get their story straight or at least try to.  We separate our children and students in class when we’re trying to figure out who broke the vase. Where the stories diverge or contradict, we can start to get at the truth.  There is an old biblical story about 2 elders who accused a woman, Susanna, but were caught lying during a trial.  How? They were separated. Sequestered. And when their stories differed, it was evident that she was innocent and they were lying.

In the law, there are rules to create the same environment.  Sequester witnesses so that they cannot hear what the other has to say.  This allows us to show contradictions, inconsistencies and even outright lies.  This is what cross is about but there is a rule, a procedural rule, that is used by the prosecution and state to get around this rule in an important way: they are permitted to have a police officer sit in the courtroom the entire time and listen to what every witness says. Even when that officer testifies, they can designate another officer to sit there and do the same thing.  While every other witness is sequestered, the detective is not.  It’s unfair but there is a way to deal with it.  Listen and find out …

Please be aware we are relying on impressions, recollections, memories and interpretations.

Catflaps

Written by Noel Erinjeri

There’s a scene in Douglas Adam’s novel Dirk Gently’s Holistic Detective Agency where the title character and his friend Gordon are discussing Sir Isaac Newton. They gently praise Newton as the inventor of the catflap (British for “pet door”).

Gordon: “There was also the small matter of gravity.”

Dirk: “Gravity was there to be discovered. Someone was bound to notice it eventually. But the catflap…ahg, there is a very different matter. Invention, pure creative invention.”

Gordon: “I would have thought it was quite obvious. Anyone could have thought of it.”

Dirk: “Ah. It is a rare mind indeed that can render the hitherto nonexistent blindingly obvious.”

We saw an example of that this week when the Supreme Court decided Bostock v. Clayton County, a landmark decision that held discrimination against gay and transgender people violated Title VII’s ban against sex-based discrimination.

The argument against that interpretation can be boiled down to this: Congress passed that law in 1964. At the time, homosexuality was seen by almost everyone as a mental disorder (at best) or a crime against nature (at worst). While society’s views on homosexuality may have changed, the law hasn’t—and until Congress amends the law, discrimination against homosexuals isn’t illegal.

The lawyers for the employees came up with a simple (and brilliant) counter: suppose you fire a man because he is dating a man, but you did not fire a woman because she’s dating a man; you have discriminated against the man on the basis of sex—that is, you wouldn’t have fired him but for the fact that he was a man. That’s sex-based discrimination, as the term was understood in 1964, and precisely the evil forbidden by Title VII.

The employees’ argument was so convincing that Justice Gorsuch basically adopted it for the majority opinion. More impressive, though, is that it seems to have caused Chief Justice Roberts to do a 180. Roberts had dissented in Obergefell v. Hodges (the gay marriage case):

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

Beyond being a victory for basic human decency, Bostock was a victory of straight-up good lawyering. The employees’ counsel came up with an argument so simple and clear that it’s more than just persuasive—like the catflap, it makes it correctness seem blindingly obvious. It was so convincing that it caused no less a personage than the Chief Justice of the United States to change his mind.

The search for these “catflap” moments isn’t only applicable in the legal system’s tallest ivory tower. They can be equally compelling down here in the trenches.  We’ll talk more about them in the coming weeks, but two of the biggest victories we’ve ever had at Rockind Law turned on making arguments that, in the end, were just as simple. First, that you can’t be guilty of leaving the scene of an accident if you weren’t aware of an accident in the first place; and second, that a crime had to be prosecuted in the county where the crime was committed.

Simple enough, right? But, to quote Clausewitz, “Everything in war is simple. But the simplest thing is very difficult.” The same goes for us.

Our country is witnessing an awakening of sorts. Our eyes are more open to the power that we have given to those whose job it is to protect and serve, the police. Before  squad car video recordings, body cams and citizen made cellphone recordings, what happened during a police encounter or investigation came down to the citizen’s word vs the officer’s.  Anyone familiar with trying to fight a traffic ticket knows the hopeless feeling that “they’ll just believe the cop.” Did you know that in the criminal justice system, the law has always been that “police testimony is to be given no more weight than a regular citizens”?  But how has it been applied? Is it applied or often ignored and at what costs? 

Neil Rockind tackles the timely subject of police witnesses in this episode.  He shares his experiences and how society and the system could truly benefit If we really applied that rule – give officers no more benefit of the doubt than anyone else. 

If you like these episodes, please subscribe to our podcasts and feel free to make suggestions about subjects you’d like to see or hear about in the future.

Please be aware we are relying on impressions, recollections, memories and interpretations.

This is Part 2 of Death by a Thousands Cuts and follows closely with Episode 3. Its been said that in the prior episode, the witness’ testimony was “dead” after only 2 cuts rather than 1,000. In Part 2, the witness was cut repeatedly … over and over and over again.

A variation of Proverbs 18:17 reveals that he who speaks first seems right until another gets up to question him. This is so true of cross examination and is really brought to life in this episode. A witness for the state, so confident and sure of himself, proudly testified on direct examination about how he followed and observed Neil’s client turn into a car wash driveway and how the agent/officer turned down a nearby street, drove to the bottom of a hill, stopped in a driveway and kept a close on the participants the entire time. By the time he was done testifying on direct examination, he claimed he had been able to observe the accused and the others engage in criminal activity. It sure seemed powerful and compelling … until the cross examination.

Listen to how Neil, after visiting the scene, took apart the witness’ testimony. The witness fought with Neil on every question and answer, something that was not lost on the jury and Neil’s co-counsel. The more he fought, the more we knew that we had revealed the truth. Killer Cross Examination works when applied just right.

If you like these episodes, please subscribe to our podcasts and feel free to make suggestions about subjects you’d like to see or hear about in the future.

Please be aware we are relying on impressions, recollections, memories and interpretations.

Death By A Thousand Cuts is a form of torture.  Literally.  The subject is repeatedly and slowly cut, with each cut inflicting a small amount of pain and bloodshed.  One individually is not enough to kill the subject.  But together, by the end, after many cuts, the subject is done.  Psychologically speaking, Death By A Thousand Cuts occurs when something negative is happening to another but it is happening slowly, incrementally and almost without notice until it is too late.

Approaching a witness for cross examination, many lawyers want a clean, knockout punch – one shot that ends the witness’ credibility.  Those Perry Mason / Matlock moments rarely, rarely happen.  While my approach to cross examination can lead to knockout punches, and sometimes does, what more often happens is that the witness’ credibility is destroyed, i.e., killed, slowly.  Death By A Thousand Cuts.

In this episode, I discuss a cross examination of an agent who was part of a large, multi-jurisdictional task force that was investigating a group of people in the Chicago, Illinois and metro-Detroit area.  My client, a man in his 60’s was among the defendants.  Four (4 ) others were charged as well.  They were all charged with Conspiracy To Deliver 1000 grams or more of a controlled substance and Possession of a 1000 grams or more of a controlled substance.  Specifically, the government was accusing them of taking part in an intricate plot to transport cocaine in kilogram quantities from Chicago through Michigan and beyond.

My client was locked up during the entire case.  Our defense?  He was in the wrong place at the wrong time.  The police had been overly aggressive in their pursuit of those involved and in the process charged an innocent man.

Central to the state’s case was what the police described and alleged as an exchange in which my client transferred drugs (in a piece of luggage) from his vehicle to another.  Later, when the other vehicle was stopped, the police located the drugs.   One officer claimed to have observed the transfer, while another claimed to have followed my client from his apartment to the location of the alleged transfer – a self-car wash.  Both witness’ testimony were potentially damaging to my client’s defense.  This episode is about the latter officer, the one conducting surveillance and how I undermined his credibility entirely.

I listened very carefully to his testimony both in a previous hearing and during the trial.  He claimed to see my client pull directly into the car wash.  Despite what he as claiming, it was my opinion that he hadn’t seen anything of the sort.  I wanted to cast doubt on that claim.  Sometimes witnesses claim to see things when in reality they are just putting pieces together of events they did see and then filling in the gaps with what seems logical.  They do this for many reasons – some to help their case, some because they are biased, some because they think they won’t get caught and some because they should have been in a position to see something important but failed to do so.  I believed all of the above applied here.   Take a listen and see how I revealed, through a killer cross examination, our truth as to what really happened.

Question after question was like cut after cut.  In the end, the witness’ credibility was destroyed, i.e., killed.  Death by a Thousand Cuts.

Please be aware we are relying on impressions, recollections, memories and interpretations.

As I recall, I was 25-26, probably somewhere in between and making my way in the tense environment of the Oakland County Prosecutor’s Office where I was a young assistant prosecutor.  The office was not without controversy.  Our supervisors directed us to plea bargain few cases meaning that most proceeded to straight pleas or were set for trial.  For young lawyers looking for trial experience, we were sure to get it working in Oakland County.

Early on, young prosecutors are assigned a mentor and to a courthouse.  In the beginning, everything is under the watchful eye of the mentor.  My first trial was no excaption.  From the start, I pushed hard.  I learned the Michigan Rules of Evidence and studied the new cases that came out of the appellate courts interpreting them.  I knew then that if I knew the rules, I would be ahead of the game and that’s where I wanted to be – at the head of the field and at the head of the game, so to speak.  And so, when my first trial opportunity came along under the watchful eye of my mentor, I was ready.  And what a trial it was

First, I was sick as a dog.  There was no coronavirus then but I had all the symptoms – fever, sore throat, cough, sweats, chills and runny/stuff nose.  I was a mess.  Yet, nothing was keeping me from trying that case.  N.O.T.H.I.N.G.  I came to court with throat lozenges, Tylenol, tissues, sore throat spray, etc.  It was like a pharmacy in the conference room.  Why did I push on?  I wanted to try this case and try it I did.

The defendant was a lawyer charged with Indecent Exposure.  Suffice it to say, he had a lot on the line. He knew the law and had a good lawyer to boot.  The facts – they were odd indeed.  He was driving a car on a public road next to a loaded school bus full of children.  The driver noticed the students peering out the window, pointing at the car and making comments.  It was alleged that he had his privates out and was masturbating.  The driver tried to slow down and according to her, the car slowed down.  When she tried to speed up, she claimed the car sped up.  It was called in, he was investigated and prosecuted.   None of the parents wanted the kids called as witnesses which made it more difficult.

His defense?  He claimed he had a rash and was applying an ointment/prescription medication/salve to a rash and it was all a misunderstanding.

The case of the Exposed Lawyer – my first and where my tenacity at cross examination and killer cross examination finds its roots.

Please be aware we are relying on impressions, recollections, memories and interpretations.

Throughout his career, Neil Rockind has often been shadowed or observed by a broad range of people. From law students to attorneys eager to see Neil in his zone, along with journalists and even regular civilians curious to see a master of his craft at work, Neil soon realized that YouTube would provide a convenient and effective opportunity for addressing the considerable level of interest that many people had for seeing him in action. By uploading videos that capture segments of certain trials or hearings, Neil is able to shed light on what occurs in some of his most interesting and contentious cases with people from all over, while at the same time offering riveting insight into how he approaches certain tasks, witnesses, and challenges.

The considerable success which Neil has experienced during his career has led to frequent requests for his participation in legal seminars, community events, and media commentary. In addition to his regular appearances on Local 4 News as the station’s legal analyst, Neil will soon be uploading videos of his many roles and contributions outside of the courtroom. You can already view Neil’s TED Talk on “The Joy of the Jury”, which earned much praise. As Neil will be uploading new content soon, subscribers have a lot to look forward to!

While the greatest demand is for Neil’s famed cross-examinations, he will soon be sharing a diverse range of video content on YouTube. In the near future, Neil will be uploading videos of all varieties, from more of his courtroom showdowns to podcasts, interviews, media clips, and much, much more! Be sure to subscribe so you don’t miss out on the upcoming material, and feel free to like, comment on, and share your favorite videos!

Check out the very first episode of Neil Rockind’s new podcast, Killer Cross Examination!

Neil introduces the podcast with an important disclaimer, informing listeners that it is unlikely to be what they expect. While most legal podcasts discuss recent cases, new laws or court rulings, Neil sets things straight by suggesting that anyone seeking that sort of content ought to look elsewhere. Although Neil’s podcast will surely discuss cases and important laws every so often, it is going to be a journey more than a lesson.

Neil will take listeners to many different places with this podcast: his past, his youth, and showcase certain cases. Killer Cross Examination will, of course, discuss the art of cross examination and Neil’s brand of it, but it will more importantly be about how Neil got to where he is at now and how he developed his style of trial law. It will also explore how cross examination is a skill, a specialized tactic that one can use everyday to get to the truth. These tactics can often be utilized not just in the courtroom, but in life itself. Neil will guide listeners through all sorts of topics as he shares war stories and scars, covering legal and current events, revisiting the past, and above all, always searching for truth.

As Neil explains, this podcast is not just about learning, though. Beyond that, his goal is to motivate all those who tune in. Neil wants to show that one can get to wherever they aspire through hard work. The podcast is about facing challenges and overcoming obstacles, about enjoying the good times and enduring the bad ones. Killer Cross Examination is unscripted, authentic, and exciting. Take a listen to the introductory episode and prepare for a series unlike any you have heard before!

Please be aware we are relying on impressions, recollections, memories and interpretations.

We just finished two long trials.  Both involved difficult facts and difficult circumstances.  And both involved informants or cooperating witnesses testifying for the prosecution.  Cross examining a cooperator or informant is not for the feint of heart … it requires listening, persistence, patience, wit and a plan or attack.  Some lawyers just want to get up there and yell and scream.  Those lawyers rarely succeed during a cross examination of an informant/cooperator.

In our most recent trial, we were confronted with two (2) cooperating witnesses.  We’ll write more about the cross examinations of these witnesses in the coming days but suffice it to say that we had a plan of attack for each and we executed that plan.  Court observers claimed that they didn’t believe either witness.  But I digress …

In another recent trial, one that last several weeks, we were confronted with one of the most challenging witnesses around — the cooperating accomplice who is willing to admit every prior lie, misdeed, etc.  This witness is street smart and is willing to light himself on fire so long as he lights the accused on fire as well.  Think of a mob movie with a smart-alecky turncoat “snitch” on the stand who tells jokes, laughs at himself and others and is good with a comeback or two and you’ll start to understand the type of witness that we just dealt with in this trial.  But there is a way to effectively cross examine this witness — you have to corner him in ways that he doesn’t expect it, with a series of questions where the witness will likely lie to avoid looking bad.  You see, its easy for someone on the stand who is getting a deal to admit to having lied to the police or having committed crimes — they know that the prosecutor, judge and jury already know that about them.  They have embraced those facts and they are willing to admit them.

But if you can corner the witness into situations where he is forced to admit facts that make him look bad, that reveal the core of his character, i.e., things that he wasn’t prepared to have to admit to, he will naturally lie or have to admit being a con.  This is the gold of a killer cross examination.

During this cross examination of this witness, we cornered the informant/cooperator twice to such a degree that even the judge knew he was lying and the judge jumped in and actually pointed out that the witness was lying.  Here are two (2) excerpts —

In this excerpt, I confronted the witness with his looked the cops right in the eye, on the scene, and lied.  The witness didn’t want to admit that … he was prepared to say that he had lied at the police station but he wasn’t prepared to reveal that he had the ability and character to lie on the fly (so to speak) and to do so convincingly.  Even the judge knew he was a “deceitful guy” and called him out on it:

You see the trap?  When the witness was cornered, he didn’t want to admit the truth but he didn’t know what to say.  When he paused and hesitated, the judge called him out, admonished him and even called him a deceitful guy.  It doesn’t get must better than that.  Or does it?

In this next excerpt, I cornered the witness again.  The judge saw the witness trying to lie and called him on it too.  The witness didn’t want to admit that he was going to get insurance proceeds that he wasn’t entitled to … he realized how that made him sound to the jury:  bad, devious, deceitful.  So, the witness tried to lie:

He was cornered with having to reveal his true character, his true self and he didn’t want to.  Instead, he answered “I can’t answer that.”  This was a copout of course.  But the judge wouldn’t have any of it … the judge called him on it again.  Again, it doesn’t get much better than the judge calling the witness a liar during a cross examination.

When confronting a witness, make sure to corner him with having to admit that he is a liar/or scoundrel or watch him try to squirm out of it.  If you have a judge like we had, the judge will recognize it too and even help you prove your point.  Either way, the jury will see and understand what’s happening.

Please be aware we are relying on impressions, recollections, memories and interpretations. 

Killer Cross Examination Snippet from P v Morrow

“When the witness is digging himself a hole, keep the shovel in his hands”

The informant took the stand to attempt to finish his “work” for the Straits Area Narcotics Enforcement (SANE) drug team. He thought he’d be cagey and try to argue with me as I cross examined him. Ask those in the attendance whether his caginess or attempt to “talk back to me” worked. I suggest that most in attendance realized that he was only digging himself a deeper a hole.  I kept the shovel in his hands.  

Here is a summary of just one portion of the killer cross examination of this informant-witness:

• Q:  You would lie to get yourself out of trouble?
• A:  No.
• Q:  You’ve admitted as much under oath in the past, right?
• A:   No.
• Q:   You testified in oath in {this other case}?
• A:   Yes.
• Q:   Weren’t you asked this question, “You would like to get yourself out of trouble?” and your answer was, “Yes.”
• A:   Yes.
• Q:   So you lied earlier today?
• A:   No.
• Q:  You denied that you’d lie to help yourself get out of trouble and you denied that you said that under oath earlier.   Those were lies, right?
• A:   Yes, I guess.
• Q:   There’s not much to guesswork in that is there?
• A:    I don’t know what you mean.

A killer cross examination can expose the witness’s willingness to lie but also by addressing each aspect of the lie, e.g., in the past, in the present, etc., reveals the witnesses willingness to continually lie even in court.  When a witness is digging himself a hole, make sure that you keep the shovel in his hands and get him to keep digging. 

(This is a summary of an excerpt of one portion of the cross examination of the informant.   It is not meant to state that this is an identical transcript or verbatim copy of the transcript.)

Stay tuned from more revelations from the cross examination of the informant in the Morrow case as well as cross examinations of the officer in charge – those too proved to be quite revealing.

Please be aware we are relying on impressions, recollections, memories and interpretations.