Cross-examination of prosecution witnesses
Cross-examination of prosecution witnesses
Testimony at the preliminary hearing is given under oath and transcribed. Therefore, it will be available for use as impeachment in further proceedings. Consequently, a vigorous cross-examination allows the defense to fully identify contested points. However, mindful of the prosecution's burden of proof, counsel may choose to leave the evidence vague where it appears that the evidence will be significant at trial. If key elements of the prosecution case are omitted at the time of preliminary hearing, and later are testified to by witnesses who testified at the preliminary hearing, counsel can focus on the failure of the witness to make those points at the preliminary hearing and challenge the ability of the witness to recollect better at a later point in time.
The defense attorney can also use the opportunity to cross-examine to test the general competence of each witness. This includes testing the intelligence of the witness and his or her veracity, sense of time, vision, and hearing. In addition to those relatively objective qualities, the defense attorney will also want to observe the prosecution witnesses to determine what kind of witnesses they are. Considerations include: a bias toward the prosecution, whether they are neutral or reluctant to testify, whether they are hostile to the defense attorney when he or she questions them, or whether they are eager to cooperate.
The prosecution often takes witnesses as it finds them, and in no way can it be assumed to control the attitude of the people whom it calls to testify.
Counsel can anticipate that certain witnesses will be called, and should prepare carefully to cross-examine these witnesses. Most computer crime cases will involve a police officer who had a role in the investigation of the case,FN11 a representative of the victim who can establish what took place on the victim's computers,FN12 and frequently, an expert who will explain the method by which the crime was committed.FN13 To the extent that the defense case is based on surprise, or it appears likely that the prosecution will be able to take further steps to bolster its case if it learns more about the defense case, counsel should be extremely careful not to disclose those elements of the defense either through questions raised on cross-examination or statements elicited from defense witnesses.FN14