The Prosecutor Cross-Examines: A Guide to Avoiding Unfairness and Reversible Error

Prosecutors cross-examine much less frequently than do defense counsel, for good reason. Often defendants do not testify (with some data sets putting the number below the 50% threshold for felony cases that go to trial), whether because they have little too say, there is ample impeachment evidence the jury will not hear if they remain silent, or their educational and developmental limitations make them poor candidates for taking the witness stand. And the proportion of defendants who do testify may vary region to region and crime to crime. All of these factors make cross of a criminal accused a less practiced art.

Just as fundamental skills may become rusty with limited use, knowledge of controlling principles of law may also erode or become lost entirely when the cross of a defendant is a relative rarity. And there is enough developed law to warn prosecutors away from potential pitfalls, areas of cross-examination that can end in a mis-trial or reversal on appeal.

“Are you calling the police witnesses liars?”

In the heat of battle and the aggression of cross-examination, a prosecutor may choose not merely to highlight the difference between the defendant’s version and that of police or lay witnesses but to push further and ask “so, your position is that they all lied?”

The problem here is simple. The question seeks an opinion that is not helpful to the jury and “several courts of appeal [have] held this type of questioning improper because it tend[s] to infringe on the jury’s exclusive role as arbiter of witness credibility.” United States v. Vitillo, 490 F.3d 314, 325 (3d Cir. 2007). Opinions on opposing witness credibility are a danger zone to be avoided.

“You lie and cheat, don’t you?”

It is not uncommon for a criminal defendant to have committed some dishonest act in the past, be it giving the police a false name at the time of an unrelated arrest or collecting public assistance or social security while also working, or working ‘under the table’ and not paying taxes. These become grist for cross-examination.

Again, prosecutors must be wary. Not all jurisdictions [Pennsylvania being one example] have adopted the equivalent of Federal Rule of Evidence 608(b), which permits impeachment of a witness on cross-examination by showing that the witness has committed a dishonest act of such a nature that it proves a character flaw, an inherent defect and inability to be truthful. And even if the jurisdiction does allow 608(b) impeachment, it is not any dishonest act but a substantial one. Said more simply, everyone has done something dishonest, so what is needed here is an act that shows the person to be dishonest to the core.

“You testified today only after sitting through this trial and hearing what everyone else said.”

Accusing a defendant of designing her/his testimony to fit what was testified to by other witnesses is called “tailoring.” Here, again, courts are divided nationally – the United States Supreme Court has allowed this, several state courts have found it improper for prosecutors to make accusations of tailoring based on the defendant’s constant attendance at trial [a constitutional right], and at least one seems to have approved it only when defense testimony may have opened the door. All that can be said is that caution is advised.

“You never said that before.”

The complexity of this area of law cannot be denied, and while some impeachment along these lines may be permissible, caution is urged. This is so even after the United States Supreme Court held that silence does not invoke the federal constitutional privilege against self-incrimination, which must be expressly asserted to be claimed. Some state courts may not follow this rule.

One rule is clear. A criminal accused’s silence after having received Miranda warnings may not be used to impeach trial testimony. Conversely, impeachment use of pre-arrest silence is allowed under the United States Constitution. Post-arrest, pre-Miranda silence is where courts divide.

And the constitution is not the end-all and be-all. As the California Supreme Court explained, “that use of a defendant’s postarrest, pre-Miranda silence is not barred by the Fifth Amendment in the absence of custodial interrogation or a clear invocation of the privilege does not mean that evidence overcoming those constitutional hurdles would necessarily be admissible under the Evidence Code.” People v. Tom, 59 Cal. 4th 1210, 1236 (Cal. 2014). Where, and under what circumstances the defendant was silent may reduce its probativeness. Again, as with “tailoring,” caution is the guide.

“Tell Us What That Tattoo On Your Arm Means.”

Whether it is a Facebook or Instagram page pose with a gun, or a tattoo of “killer” on a bicep, the desire to expose such information must be tempered with the recognition that it constitutes an attack on character. If the tattoo is the basis of an eyewitness description, the character concern fades; but if it is just ‘tough guy’ posturing, the prosecutor may be courting error by highlighting case-irrelevant information.

Overall, a prosecutor with a well-investigated case should have abundant tools available for cross-examination. Avoiding these pitfalls is wise – there is no virtue or justice in building error into a trial.