When you are charged with a criminal offense, one of the most important decisions you will have to make during the prosecution of your case is whether or not to take your case to trial. If you have never been through a criminal trial before, you likely have a number of questions relating to what happens at a trial. You need the answers to these questions in order to make an informed decision regarding your case. For answers to specific questions relating to your case you should consult with an experienced Nebraska criminal defense attorney. There are, however, some general questions relating to trials that can be answered. For example, considering the fact that witnesses for the State may play a crucial role in the prosecutor’s case against you, it is important for you to know how defense attorneys cross-examine a State’s witness.
Trial Basics – Using a Deposition to Find Out How a Witness Will Testify
Before discussing the role of cross-examination in a trial it helps to go over some trial basics. Before a criminal case goes to trial, the State is required to “discover” to the defense any evidence it plans to use against the defendant as well as the names of all witnesses it plans to call to testify at the trial. This allows the defense the opportunity to find out the purpose of a witness’s testimony ahead of time through the use of a discovery tool known as a “deposition.” A deposition occurs outside of the courtroom; however, the witness is put under oath, subjecting the witness to the penalties of perjury for not telling the truth. Both the prosecuting attorney and the defense attorney are present. The defense attorney asks the witness questions, as if at trial, to find out how the witness will testify at the subsequent trial. Because a deposition is recorded, and the witness is placed under oath, it can be used to impeach a witness who testifies differently at trial.
Defense Attorneys and Cross-Examination
In any criminal prosecution, the prosecution bears the burden of proving the defendant guilty beyond a reasonable doubt. To do that, the State must prove each and every element of the offense involved. Because the State has the burden in a criminal trial, the State also presents its case first. The Prosecutor will call a witness to the stand and take the witness through his/her “direct” testimony. Because the witness is a witness for the State, direct questioning is typically easy to predict and non-combative.
After the prosecutor finishes with direct examination of a witness, the defense has the right to “cross-examine” the witness. The approach a defense attorney takes when cross-examining a witness is a strategical decision that is based on a number of factors. For example, if the witness is an expert witness, a defense attorney often focuses on getting the witness to admit that he/she is not 100 percent sure of the testimony just given. In other words, the goal is to get the expert to admit that “it could have happened another way” or “No, I’m not completely certain of…” If the witness is an eye witness, cross-examination might focus on how unreliable eye witness testimony is and on getting the witness to sound unsure of himself/herself. Unlike direct examination, cross-examination can be “leading.” In layman’s terms, this means that the defense attorney can attempt to elicit a specific answer putting essentially putting words in the witness’s mouth. For example, the attorney might ask “Mr. Smith, because it was dark out, you really aren’t sure if it was the defendant you saw are you?”
If a witness gave an answer during direct examination that differs from an answer given during a deposition, the defense attorney can bring that up during cross-examination and may use the answer given during the deposition to point out the inconsistency. Making a witness appear inconsistent – or even untruthful – is an important goal of cross-examination because a judge or jury is unlikely to put much faith in that witness’s testimony.
If you have been charged with a criminal offense in the State of Nebraska it is certainly in your best interest to consult with an experienced criminal defense attorney right away to discuss what defenses might be available to you. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070.
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