I (Bob Dekle) vividly remembered a brilliant cross-examination that I did of a defendant in a First Degree Murder case. Being a typical trial lawyer means you are also a raconteur, so I told and retold the story of this cross-examination over and over, and as the years rolled by it became more brilliant with each retelling of the story. When I became a legal skills professor at the University of Florida, I naturally thought that the story of the cross would make a good lesson for one of my classes. Rather than retell the story from memory, though, I decided to go to the actual court file and get a copy of the transcript of the cross.
You can imagine my chagrin when I got the transcript and discovered that the defendant never testified at trial. I was certain that I had done the cross. Perhaps I had done it during the defendant’s testimony on a pretrial motion to suppress. I pulled out the transcript of the motion hearing, and found that the defendant hadn’t testified at the suppression hearing either. I was beginning to feel that I was in the Twilight Zone.
I was still dead certain that I had done the cross. Where was it? Then I got an idea. I read my final argument and there it was! I had prepared my cross as a series of short declarative statements with an appended tag question. (e.g. You did it, didn’t you?) Since it was a concession-based cross, the declarative statements were statements of fact with which the defendant could hardly disagree. When the defendant failed to take the stand, I had merely dropped the tag questions, changed the second person "you" pronouns to third person "he" pronouns, and incorporated the cross-examination into my final argument.
Solving the mystery of what had happened to my “brilliant” cross reminded me that I had done the same thing a number of times before. The first time I ever did this was back in the early 1980's in a drug trafficking case. The defendant was caught driving a tractor trailer loaded with a half ton of marijuana, and he had given the arresting officer a cock-and-bull story about how he had been hired by a mysterious disappearing stranger to drive the tractor trailer from Point A to Point B without opening the trailer to look inside.
I prepared what I anticipated would be a blistering cross-examination, and I was bitterly disappointed that his lawyer rested without calling him. I thought I had prepared good cross-examination and I really wanted to use it, so I used it in final argument.
Cross-examination is, after all, a tool for laying the foundation for your final argument. When the defendant disappoints you and doesn’t take the witness stand, you can still use your preparation for cross as a component of your final argument.