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Confronting the Eyewitness at Trial

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“Attorney Divelbiss is bright, hard-working, and well-versed in criminal law. His legal writing is superb, and his commitment to his clients is outstanding. He will fight for you and offer you the best defense possible. Additionally, he is a pleasure to work with. I fully endorse this lawyer.”


J.S.

54+ Five-Star Google Reviews

“I hired Zachary after I found myself charged with a felony. He put me at ease right away and during the whole process he explained each step to where I understood everything and was always available for any questions I had. ”


S.N.

54+ Five-Star Google Reviews

“Attorney Zachary is a brilliant attorney, I highly recommend his company to resolve any legal/criminal matter satisfactorily. He still continue to work on my case to tie some loose ends. He is intelligent , prompt and a problem solver. I thank him a million times to protect my dignity and reputation.”


D.G.

54+ Five-Star Google Reviews

“I have had the pleasure of working with Mr. Divelbiss in the past and know him to be a hard working professional. His attention to detail and care for his clients set him apart from the rest!”


Joshua Black, Attorney

54+ Five-Star Google Reviews

“Attorney Divelbiss is a hard worker and will advocate for his clients with an attention to detail that you don’t see very often these days.”


Brandon White, Attorney

54+ Five-Star Google Reviews

“Attorney Divelbiss is bright, hard-working, and well-versed in criminal law. His legal writing is superb, and his commitment to his clients is outstanding. He will fight for you and offer you the best defense possible. Additionally, he is a pleasure to work with. I fully endorse this lawyer.”


Josephine Hallam, Attorney

54+ Five-Star Google Reviews

“Mr. Divelbiss and I worked in the same office, although we were at different law firms. He was eager to learn and developed a reputation for honesty and zealous advocacy.”


Kristopher Califano, Attorney

54+ Five-Star Google Reviews

“Mr. Divelbiss is a GREAT attorney, very honest and reliable. He takes his times with every client and answers all questions and concerns. Is been a pleasure working with Mr. Divelbiss and he serves his clients very well!”


Allen Hsu, Attorney

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CONFRONTING THE EYEWITNESS AT TRIAL

 

Jurors tend to trust and give great weight to eyewitness testimony. This is a troubling trend for criminal defendants because eyewitnesses often are mistaken.

If the prosecutor will call an eyewitness to testify against you at trial, you need a smart criminal defense lawyer on your side – one who knows how to use cross-examination to undermine the eyewitness’ credibility and show the jury just how unreliable eyewitness testimony can be.

In this short example, the defense lawyer attacks the conditions under which the witness made his initial observations and effectively demonstrates that the witness’ memory cannot be trusted. This type of aggressive challenge to eyewitness testimony is necessary at trial to impress upon the jurors that this evidence is complex and demands their highest scrutiny.

I. TECHNIQUE: ATTACK CONDITIONS UNDER WHICH EYEWITNESS MADE INITIAL
OBSERVATIONS

Eyewitness testimony is the product of (a) the conditions under which the eyewitness made his initial observations; and (b) the witness’ ability to recall what he observed.

External conditions that might affect a witness’ observations include lighting, rain, fog, etc. Internal conditions also may come into play and affect a person’s ability to perceive, understand, or even see an event. A thousand inner voices, images, and thoughts may flood the eyewitness’s mind, competing with each other and overriding his ability to make sense of what his eyes and ears tell him. As the witness sees a crime being committed, especially a violent crime, his mind may race: “Should I interfere?” “Should I try to stop him?” “Is that a gun?” “He’s awfully big.” “Will he kill me?” “Am I a coward?” “I’m not a police officer.” A witness’s inner struggle and inner demons may prevent him from really seeing what is happening right before his eyes.

After the event, visually unsettling images— ambulances, blood, angry police officers, crying victims—bombard the eyewitness, interfering with his ability to process the event and thereby obscuring and blurring the images.

Let’s see how a skilled cross-examiner highlights these factors to show the jurors that the witness may have an unrealistic (and false) conviction in the accuracy of his memory.

II. SAMPLE CROSS-EXAMINATION

The robbery was a terrible ordeal for the witness.
Q: In broad daylight, an individual pulled out a sawed-off shotgun?
A: Yes.
Q: And pointed it at Mrs. Webster?
A: Yes.
Q: You wondered if you should come to her aid?
A: Well, I… didn’t know what to do.
Q: You saw the gun?
A: Yes.
Q: You didn’t want to be shot?
A: No.
Q: You stared at the gun?
A: Yes.
Q: You didn’t want to do anything that would upset the robber?
A: No.
Q: Mrs. Webster was a frail, elderly woman?
A: Yes.
Q: She let out a yelp?
A: Yes.
Q: He was a maniac?
A: That’s right.
Q: He might just shoot you?
A: Right.
Q: The robber reached out and grabbed her pocketbook?
A: Yes.
Q: You did not rush to her aid?
A: No.
Q: But Mrs. Webster wouldn’t let go?
A: No.
Q: You made no move?
A: No.
Q: The robber screamed at her to let go?
A: Yes.
Q: You did not tell the robber to leave her alone?
A: No.
Q: He said to Mrs. Webster, “If you don’t let go, I’m gonna blow your head off!”?
A: Yes.
Q: You did not yell out “Help!”?

A: No, I didn’t.
Q: At that moment, you did not call 911?
A: No.
Q: You believed he might actually do it?
A: That’s right.
Q: You did not run?
A: No.
Q: You wanted Mrs. Webster to let go of the bag?
A: Right, I didn’t want to see her shot.
Q: Your mind was racing?
A: Yes, it was.
Q: You thought she was being pretty stupid?
A: I did.
Q: The robber knocked her to the sidewalk?
A: Yes.
Q: You were terrified?
A: Yes.

The witness was immobilized with fear.

Q: She fell hard?
A: Yes.
Q: You neither intervened nor fled?
A: No.
Q: You were immobilized with fear?
A: Well, I… I was scared.
Q: You were too scared to do either?
A: Yes.
Q: You were immobilized with fear?
A: Yes.

The witness did not look the robber in the eye.

[Eye contact is crucial to identification. When we look at someone, we are drawn to his eyes. We may note other facial features, but unless the person’s nostrils are flaring or he is smiling, we are primarily focused on his eyes. If the eyewitness was too intimidated to meet the robber’s eyes, as this portion of the cross- examination establishes, it’s unlikely he did more than glance at the robber’s face.]

A: No, but I saw his face.
Q: You did not look the robber in the eyes?
A: No.
Q: You were unable to tell responding police officers his eye color?

A: No, I wasn’t. It happened so fast.
Q: You were too intimidated to look the robber in the eyes?
A: I was scared, yes.
Q: Too scared to look him in the face?
A: Well, yes, I guess.
Q: You did nothing more than glance at his face?
A: I saw him. It’s your client.
Q: You did nothing more than glance at his face?
A: I looked long enough.
Q: Even though you were too scared and intimidated to look him in the eyes?
A: I know what I saw.

The witness had little time to observe.

Q: The robber grabbed the pocketbook?
A: Yes.
Q: And fled down the street on foot?
A: Yes.
Q: And entered a car?
A: Yes.
Q: Then drove off?
A: Yes.
Q: The entire incident lasted only a few seconds?
A: About 10 seconds.
Q: During those 10 seconds, you looked at the shotgun?
A: Yes.
Q: It was a real shotgun?
A: Yes.
Q: Not just a couple of pipes?
A: No, a real shotgun.
Q: You watched the robber and Mrs. Webster struggle over the purse?
A: Yes.
Q: That lasted a few seconds?
A: About that.
Q: You watched her fall?
A: Yes.
Q: You wished you could catch her?
A: Yes.
Q: And you watched the robber run away?
A: Yes.
Q: All in 10 seconds?
A: Yes.

Q: Of those 10 seconds, you spent less than two seconds looking at the robber’s face?
A: I saw his face.
Q: Of those 10 seconds, you spent less than two seconds looking at the robber’s face?
A: Two or three seconds. Maybe more.
Q: And during that two to three seconds, your mind was racing?
A: Well, kind of.
Q: Your eyes darted between the robber, the shot-gun, and Mrs. Webster?
A: Yes.
Q: You didn’t focus on the robber’s face?
A: No.
Q: So when you say you spent two to three seconds looking at the robber’s face, you’re really saying you looked
at his face for a total of two to three seconds?
A: Well, I mean, I looked at his face.
Q: You looked at his face more than once?
A: I believe I did.
Q: You’re adding together the time, on those two or three occasions, that you spent looking at his face?
A: Yes.
Q: So, if you looked at his face on two to three occasions and spent a total of two to three seconds looking at his
face, you looked at his face on each occasion for no more than a second?
A: I guess. It’s difficult to say.
Q: At two to three seconds you could do no more than glance at the robber?
A: I… did more than glance.
Q: And during these two to three seconds, Mrs. Webster was trying to wrestle the shotgun from the robber?
A: Yes.
Q: She was jerking the gun back and forth?
A: Yes.
Q: And jerking the robber along with her?
A: Somewhat.
Q: And he was trying to jerk the shotgun away from Mrs. Webster?
A: Yes.
Q: They were twisting and turning?
A: Yes.
Q: Twisting and turning violently?
A: Yes.
Q: This was a life-and-death struggle?
A: Yes, very much so.
Q: It was during this life-and-death struggle that you looked at the robber’s face?
A: Mostly.
Q: It was this death struggle that drew your attention to Mrs. Webster and this maniac?
A: Yes.

[Notice how, by referring to the robber as a “maniac,” the defense attorney underscores the violence of the
encounter and effectively creates a third person – one who provides a marked contrast to the well-dressed
and calm defendant sitting in the courtroom.]

Q: You didn’t see the robber approach Mrs. Webster?
A: No.
Q: You didn’t see him point the shotgun at her?
A: No.
Q: When the robber wrestled the gun from Mrs. Webster, he turned and fled?
A: Yes.
Q: Running away with his back to you?
A: Mostly.
Q: So, for the entire time that you observed the robber, his face was jerking back and forth?
A: I guess.
Q: And all this time, you’re trying to decide what to do?
A: Well, yes.

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Our mission is to help keep good people out of jail by balancing the criminal justice playing field so that each of our clients has a fighting chance to achieve realistic outcomes for their individual legal situations.

Chaos ensued after the robbery.

[Chaos and stress negatively impact recall. If allowed a moment to reflect on something we’ve read or seen, we are more likely to accurately recall that thing. If, however, our observation is immediately followed by chaos and disturbing scenes that unsettle us, we have a far more difficult time conjuring up the images we saw. Eyewitnesses can be so rattled by the distressing aftermath of a crime that they cannot reliably recall what they saw. This part of the cross-examination walks the witness through each and every distressing scene that he endured following the event.]

Q: As soon as the robber was gone, you ran over to Mrs. Webster?
A: Yes.
Q: She was bleeding?
A: Yes.
Q: She was breathing rapidly?
A: Yes.
Q: She was emotionally overwrought?
A: She seemed to be, yes.
Q: Then you called 911?
A: Yes.
Q: You were speaking rapidly?
A: Yes.
Q: Trying to hold it together?
A: Yes.
Q: You yelled for a doctor?
A: Yes.
Q: People began congregating around you?

A: Yes.
Q: Crowding you?
A: Yes.
Q: You said, “Give us some room!”?
A: Yes.
Q: Mrs. Webster was nearly hysterical?
A: Yes.
Q: You were afraid for her?
A: Yes.
Q: You stayed with her until the ambulance arrived?
A: Yes.
Q: You were stressed?
A: Yes, I was.
Q: Your heart was beating rapidly?
A: Yes.
Q: The EMTs examined you?
A: Yes.
Q: During the minutes that followed the robbery, you didn’t have time to reflect on what the robber looked like?
A: Not immediately. But I did later.

54+ Five-Star Google Reviews

“Attorney Divelbiss is a hard worker and will advocate for his clients with an attention to detail that you don’t see very often these days.”


Brandon White, Attorney

Experienced Phoenix DUI Attorney

Our mission is to help keep good people out of jail by balancing the criminal justice playing field so that each of our clients has a fighting chance to achieve realistic outcomes for their individual legal situations.

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54+ Five-Star Google Reviews

Allen Hsu, Attorney

“Mr. Divelbiss is a GREAT attorney, very honest and reliable. He takes his times with every client and answers all questions and concerns. It has been a pleasure working with Mr. Divelbiss and he serves his clients very well!”

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54+ Five-Star Google Reviews

“Attorney Divelbiss is bright, hard-working, and well-versed in criminal law. His legal writing is superb, and his commitment to his clients is outstanding. He will fight for you and offer you the best defense possible. Additionally, he is a pleasure to work with. I fully endorse this lawyer.”


J.S.

54+ Five-Star Google Reviews

“I hired Zachary after I found myself charged with a felony. He put me at ease right away and during the whole process he explained each step to where I understood everything and was always available for any questions I had. ”


S.N.

54+ Five-Star Google Reviews

“Attorney Zachary is a brilliant attorney, I highly recommend his company to resolve any legal/criminal matter satisfactorily. He still continue to work on my case to tie some loose ends. He is intelligent , prompt and a problem solver. I thank him a million times to protect my dignity and reputation.”


D.G.

54+ Five-Star Google Reviews

“I have had the pleasure of working with Mr. Divelbiss in the past and know him to be a hard working professional. His attention to detail and care for his clients set him apart from the rest!”


Joshua Black, Attorney

54+ Five-Star Google Reviews

“Attorney Divelbiss is a hard worker and will advocate for his clients with an attention to detail that you don’t see very often these days.”


Brandon White, Attorney

54+ Five-Star Google Reviews

“Attorney Divelbiss is bright, hard-working, and well-versed in criminal law. His legal writing is superb, and his commitment to his clients is outstanding. He will fight for you and offer you the best defense possible. Additionally, he is a pleasure to work with. I fully endorse this lawyer.”


Josephine Hallam, Attorney

54+ Five-Star Google Reviews

“Mr. Divelbiss and I worked in the same office, although we were at different law firms. He was eager to learn and developed a reputation for honesty and zealous advocacy.”


Kristopher Califano, Attorney

54+ Five-Star Google Reviews

“Mr. Divelbiss is a GREAT attorney, very honest and reliable. He takes his times with every client and answers all questions and concerns. Is been a pleasure working with Mr. Divelbiss and he serves his clients very well!”


Allen Hsu, Attorney