The PATDOWN Method

As a defense attorney we were taught to keep a pace and rhythm in cross examination. Keep your ammunition full so you don’t have to pause.  Know where you need to go and drive the witness toward that end without them knowing. Just keep the pressure coming. A rapid pace in the questioning is a method often used to keep the witness off guard and moving them in that direction.  A countermove to this is what I call the PATDOWN Method.  Quite simply it means Pause And Think, Don’t OverWork the Narrative.  A “patdown” is also a term of art for law enforcement and so it is easy to remember, although sometimes not easy to do.

Let’s’ start with the “Pause and Think” part. As the defense attorney is launching questions on cross, just pause and keep your mental faculties together.  Slow everything down in your mind. Stay in the moment and be situationally aware. Don’t try to anticipate his next question. Wait for it. Keep breathing. Work your training.  Isn’t this similar to the mind set you are taught in high stress scenarios such as an active shooter or hostage situations?  Same concept, different location.  The players may look more sophisticated and less threatening, but they are not.  In addition, you have something that the adversary doesn’t have, information.  Make him work for it without becoming the “bad guy” in front of the jury.  With each question launched at you, pause and think before you answer.

Now let’s talk about the “Don’t OverWork your Narrative.”  If the question you are asked calls for a yes or no, then just answer with a “yes” or “no”.  Don’t think beyond that particular question because that naturally makes you want to make excuses, offer explanations, clean up previous testimony, or make your report look or sound better.[1]  Don’t fall into that trap.  It is a trap!  Just answer only the question he asks.  When the defense attorney becomes frustrated, sarcastic or caustic because you are not engaging in face-to-face combat and are answering with short to the point answers, you will keep your cool under fire.

An important factor at play here is that you know your report cold. I cannot emphasize it enough that you must be intimately familiar with that report and what you and your K9 did or didn’t do.  This makes short and to the point answers easier.  Let the attorney do the follow up  “why” or “how” questions to your “yes” or “no” answers. Once an attorney ventures out into these areas where he doesn’t know the answer, he has lost control of the cross in that moment.  Even then however, don’t overwork the narrative.  Don’t try to offer him a lifeline by overworking the narrative.  If you fall into the trap of thinking you have to add or subtract from your report or make up or add something that may not be contained therein, you are opening yourself up to vulnerability and control by the defense.  Stick to what is in the report.  This is a blood sport. That is your narrative. That is your cover.

Another benefit of the “PATDOWN” is the jury will see you keeping your cool and see you as the safe person in the courtroom. Most juries do not like high stress, antagonistic situations played out in front of them and so they tend to defer to the one who appears “safe”.  Make that be you.

The situations where I have seen a court allow open blood sporting is when they perceive the witness to be just as antagonistic as the attorney.  In those instances, the Court may let the defense attorney “discipline” the witness who seems confrontational. Alternatively the court may admonish  both the attorney and the witness.  You don’t want that to happen.  Keep your cool and you’ll keep your credibility.

I hope this helps you navigate the battleground of the cross examination.


[1] It should be pointed out here that it is the duty of the prosecutor to “clean up” any testimony you may have offered that was incomplete. In my experience young prosecutors in particular are asleep at the switch when it comes to this.  Try to meet with your prosecutor before court and talk with them about any discrepancies or potential problems you may see in your reports that are part of the evidence.

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