Last week during the Aaron Hernandez trial there were a few great examples of cross examination issues that reoccur at criminal trials. One was impeaching a witness with a prior inconsistent statement. During the Cross Examination of Hernandez Lawyer Michael Fee, the witness, Kwami Nicholas continued to deny making any prior statements. The witness was particularly difficult in that even after being shown video and audio recording of his statement he continued to deny making that statement. As a Criminal Defense lawyer in Massachusetts, the Hernandez trial has raised many interesting legal issues that have been covered on this Blog.

Fee was careful in his impeachment of the witness because he wanted the jury to accept the prior version of events recorded at the police station. He avoided giving the witness any opportunity to minimize his statements at the police station. When the witness denied remembering the statement he moved on to his next statement, as any response from the witness would have been unpredictable. His final series of questions after establishing that the witness did not remember anything from the recorded interview, he asked the witness if he a poor memory, which he denied, but given his prior statement it would be difficult to conceive of the jury placing any weight on his testimony.

The other interesting cross examination example came from the cross examination of the Commonwealth’s footprint expert, Steven Bennett, from the Massachusetts State Police.

The Full Cross Examination can be found at the Website WildAboutTrials, Day 31.

On cross examination, Bennett denied being influenced by the fact that Trooper Benson requested that he reexamine the shoes after Trooper Benson told Bennett that he believed the shoes matched Hernandez’s shoes. Trooper Bennett changed his opinion about the shoe impression after initially stating he could not draw a comparison. Bennett acknowledged realizing that by changing his opinion he assisted the prosecution in the case.

Bennett was also asked about conformational basis, meaning that when a scientist is told about expected results there may be a bias in the result. Bennett denied being influenced by Benson and also rejected any notion that footwear impressions are subjective. Though when pressed, he acknowledged there are no standards for footwear comparisons.

Bennett’s qualifications were attacked by the defense as the Commonwealth’s expert only took one three day course. He admitted that he never took the certification test by the International Association of Identification. Further, Bennett was confronted with the standards identified by the Scientific Working Group, set up by the Department of Justice for footwear and tire tracking examiners. This group indicated that proper photography of footwear impressions is essential. Earlier in test trial the defense attacked the care and skill taken by Detective Arrighi in photographing the scene.

Bennett acknowledged if the impression lacks sufficient detail no comparison could be conducted. Further, Bennett was also asked if he knew what Sergeant Arrighi did at the scene, suggesting that he may have compromised the crime scene.

The last piece of authority that was used for impeachment was a book written by William Bodziak, Footwear Impression Evidence. According to Bodziak, it is always preferable to make a dental stone impression to examine footwear impressions is possible, but this was not done. Bennett was read an execerpt from the book on the importance of casting three dimension impressions. The book said necessary to cast every impression at the crime scene. All impressions should be casted evidence left at the crime scene is lost. Bennett said he was aware of the statement but disagreed that cast should always be made of 3 dimension impressions. Hernandez’s defense lawyer asked Bennett: based on your one three day course in footwear examination in 2006, you have a different opinion. The witness stated he disagreed with the one sentence that defense counsel read.

MyFoxBoston has been live streaming the trial and has a section on its website dedicated to coverage of the trial and has been a great resource for accurate and information about the trial.