It is always enjoyable watching the prosecutor squirm a little when his key witness on the stand suddenly seems to have a loss of memory about what he saw your client do or starts providing testimony that does not hurt your client. However, you know better than to get too excited because you know full well from experience that the prosecutor will retrieve the witness’ grand jury testimony and either have him read it aloud or read it to him and that the judge will allow the jury to hear that prior grand jury testimony that inevitably casts your client in the worst possible light. Because those earlier statements were made under oath, they are properly admissible and juries often credit that testimony especially when the judge allows the prosecutor to submit the relevant portion of the grand jury transcript as an exhibit that the jury can take back to the jury room while deliberating your client’s fate.
In my experience the best way to attack the grand jury testimony on cross-examination is to illustrate for the jury the completely one-sided nature of the grand jury process and at the same time demonstrate to them just how important your job is as a defense lawyer to the advancement of a fair and just outcome. Questions that go along way to negating the grand jury testimony include:
“The prosecutor was the only lawyer in the grand jury room with you, right?”
“She asked questions and moved on before you could fully explain the answer, right?”
“There was no judge in there to rule on objections or make sure the questions were fair, right?
“There was no defense lawyer in the grand jury room to ask you to explain details of what you meant to say, right?”
“The details of what you would have said to the grand jury if allowed to finish your answer are what you started to say earlier in court (that my client didn’t do it) before the prosecutor started talking about your grand jury testimony, right?”
Prosecutors hate this line of inquiry, but it has been my experience that judges deem these questions relevant and overrule the prosecutor’s inevitable objection and jurors have generally been very receptive to those questions. I hope everyone reading this will be able to put this inquiry to good use and expand on it.