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27 A.F. L. Rev. 133 (1987)
Cross-Examination of the Accused

handle is hein.journals/airfor27 and id is 141 raw text is: Cross-Examination of the Accused MAJOR MICHAEL W. JOHNSTON, USAF I. INTRODUCTION Cross-examination of the accused is, in any trial where the accused chooses to testify, the single most important aspect of the trial. The decision to put the accused on the stand and forego the protections of Article 31 is not one easily made by any competent defense attorney. Subjecting the accused to probing cross-examination by a well-prepared trial counsel can be devastating to the defense case, especially where the accused has a record of misconduct which can be explored for impeachment purposes. Conse- quently, no defense counsel will (or should) put his client on the witness stand and take the risk- of cross-examination unless he expects to gain a great deal from his client's testimony on direct examination (or unless the client insists on testifying over counsel's objection). Usually the benefit sought is a flat denial of any criminal conduct or denial of a crucial element of a charged offense. Confronted with such testimony, the prosecutor must, consistent with his burden of proof, convince the panel to disbelieve, beyond a reasonable doubt, the denial. Cross-examination of the accused is the first, and in some cases the only, step toward meeting that burden. Having emphasized the importance of cross-examination of the accused, it should also be noted that it is not a simple task. Neither, however, is it particularly difficult if you are properly prepared. Preparation for cross- examination of the accused is much like preparation for cross-examination of any other witness with one important difference: you will not have the opportunity to interview the accused prior to trial and thereby evaluate in advance the person and his testimony. There is no right way to approach cross-examination of the accused. Each prosecutot must develop his own style. He must be comfortable with that style. Thus, an aggressive confrontational style of cross-examination may be effective for a person with a strong and aggressive personality. The same approach would, however, be disastrous for a prosecutor with a soft spoken, relaxed personality. Both prosecutors can be equally effective so long as each adopts a style that fits his personality and prepares for cross- examination with that style, and its limitations, in mind. Further, each can learn from watching the other so long as they do not try to emulate each other. Because each cross-examination of each accused is unique to the case, the accused's direct testimony and the personalities of the accused and the prosecutor, there are no absolutes on how to cross-examine the accused. There are, however, a few general rules that should be remembered. Major Johnston (B.S., United States Air Force Academy; J.D., University of Florida College of Law) is Labor Counsel, United States Air Force Central Labor Law Office, Randolph Air Force Base, Texas. He is a member of the Florida State Bar. Cross-Examining the Accused -133

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