Author: Neil Rockind

Watch And Listen To The Witness Rather Than Taking Notes

There’s a court reporter either sitting somewhere in the courtroom or someone ready to turn the recording into a verbatim record. So, stop looking down at your notepad trying to take down word for word what the witness says in direct examination. Instead, just as you’d tell your child or teen to pick their head up from their phone, pick your head up and look at what’s happening in front of you. Much of communication is non-verbal. Movements, positioning, facial expressions, arm and body placement and style of answering, eg, direct or narrative and rambling, can only be learned by watching a witness. So, watch. This not only applies to witnesses but in life … watch how others communicate rather than trying to remember what he/said, watch how they’re saying it.

I once was prepared to examine a witness in a trial whose demeanor told me everything. He was hostile, angry and vengeful about my client not having promoted him years ago. I could only tell how hostile by watching his demeanor. His tone and posture revealed that he was trying to spike the balk and my client’s future with every answer. That was only learned by watching him. Had I shoved my head in my notepad, I’d have missed it. It proved to be an easy cross examination because the jury, once I shared with him/them, his motivation and bias, he manner of speech and communicating made sense. They discredited what he had to say.

Episode 9 is devoted to this tip on cross examination. You’re not a note taker. Listen. Watch. You’ll learn a lot more than you will from having “good notes.”

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

You’re Your Own Worst Enemy

The system has to work in all cases including cases in which people are accused of drunk driving or DUI. But is it? Over the years, these investigations have become one-sided, slanted and skewed. Exculpatory and favorable evidence is ignored. Any misstep by the driver is interpreted, without question or query, as evidence of intoxication or impairment. Even the slightest physical “sign”, e.g., bloodshot eyes, is assumed without follow-up or investigation, to be the result of alcohol or drug consumption and intoxication. When we query the police about whether they made any inquiry at all or did they just assume, they are cornered time and time again into admitting they made assumptions and relied on supposition. Yet, it continues. 

In episode 8, I explore how intoxicated or impaired (DUI cases) are built by the police from the initial observation of driving to the arrest. I explore how the process is skewed and how the legal system has over time become seemingly tolerant of slanted investigations into allegations drunk driving. You’ll hear how the police have been permitted to ignore troves of favorable, exculpatory evidence while cherry picking a couple of “bad” facts and using those against the driver. Any mistake that could be due to nerves or fear is noted as a sign of intoxication and impairment. And if the driver acquits himself perfectly on all of the questions and tests, the police just assume that “he’s a good drunk” and “he holds his liquor well.” What’s worse … nearly all of the evidence gathered in the investigation comes from the driver’s own mouth and his own deeds. After arrest, if the police want to interrogate you, Miranda Warnings (the subject of Episode 7) are required. But during a traffic stop and investigation into drunk driving, they aren’t required. And because people choose to answer questions and participate during these skewed investigations, they end up providing most of the evidence against themselves. They unwittingly assist and aid the police in making the case against them and they do so thinking they have a chance to convince the police that they weren’t intoxicated, impaired or high. They end up being their own worst enemy. 

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

Episode 7- Miranda Warnings, You’ve Been Warned

Anyone who has watched any television show involving cops or the legal system, knows the Miranda Warnings.  We know the words but what do they really mean. Not using legalese or fancy lingo, what do each of the rights really mean to the average person.  How should you understand them? And why do so many people despite the warnings, waive them and make statements to the police that harm their case?

We tackle this subject in Episode 7. I break them down in a way that you’ve never heard. You’ll never think of the Miranda Warnings quite the same.

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

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.

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.