A few quick thoughts on the trial for the 12th.  I have to agree with the commentators who have questioned why Robert Higbee’s attorney, William Subin, got into it with Michael Taylor, a young witness and victim.  Once again, I note that it is easy for me to judge another attorney’s tactics and performance from the comfort of my couch.

That being said, the first thing that continues to jump out at me is Mr. Subin’s continued use of open-ended questions.  I think he has been burned several times.  You have to keep some ammo for summation.  Make your point and move on.  Any young attorneys or law school students reading this should really look into Pozner & Dodd’s cross examination books and materials.   I see no chapters here and no real focus.   My favorite question, “what is the difference between a muskrat and a opossum?”.  Huh?

I can’t hammer this point home enough.  You never want to let the witness explain anything.  Ask a question and move on.  You never want to end with, So then, how could you have…  In fact, the witness should not know where you are going.  For example, one issue in the case is how dark the area in the intersection was.  You want to bring up facts.  No street light. Time of night. Lack of other lights.  Desolate road.   Etc.  You don’t want to follow that up with “so, then how could you have seen this or that”.  You bring up all of those points and establish that it was very dark.  You won, move on.

Another issue is that you do not have to fight with every witness.  I was in a homicide case last year.  More than half of the witnesses were not  hostile.  As a result, they were very comfortable with me and it was a smooth, easy cross.  With two witnesses, DNA and ballistics, the witnesses were so cool with me, that I made it a point to shake their hands (in front of the jury) as they left the stand.

In the Higbee trial, Mr. Subin seemed to spar with Michael Young.  There is really no reason for that.  While you want to defend your client with everything you have, you need to balance that against turning the jury against you as that will not  help your client.

I also would like to know why the Prosecutor focuses on questions such as where do you live, with who, where do you work, etc, etc.  Who cares?  If you really want to inflict some damage, focus on the real evidence.  Otherwise, the jury will forget most of what was said.  Of course, all of this is rhetorical as most prosecutors have the exact same pattern no matter where you go.  They are taught this way of questioning but I’ve never heard a real reason behind it.  If the witness is nervous, a few easy questions is ok but not many.