Identification defense in robbery case: preliminary hearing cross-examination questions

If you have been arrested for robbery, your defense attorney might foresee the possibility of asserting an identification defense at trial. However, if the witness sees you sitting at the defense table during the preliminary hearing, it may later taint the witness’s identification of you at trial

Your attorney can attempt to avoid this taint when the victim testifies at the preliminary hearing, by either:

  • Requesting that the court order a line-up before the hearing; or
  • Requesting that you sit in the audience rather than at counsel table.

After that request is resolved, your defense attorney can cross-examine the witness. The preliminary hearing cross-examination might follow an outline similar to this:

  • You said on direct examination that the man who robbed you was a black man about five feet, ten inches tall, is that right?
  • What was his complexion—dark, fair or somewhere in-between?
  • Is there anything else you remember about what the man looked like?

Your attorney must use good judgment at this point. Your attorney might choose to survey several points of description (age, weight, build, hair color, cut and length, eye color, facial hair, etc.).

Asking these specific points and getting in response, “I don’t remember,” makes for a more powerful impeachment if the witness adds detail later at trial. On the other hand, many witnesses who say “nothing” to the “anything else” question will start providing details if taken through area by area.

Certainly, experience helps in making this judgment. Your attorney might also assess how talkative the witness is in response to direct examination questions and some preliminary cross-examination questions, or might try an area or two to see whether the witness is the kind who will elaborate.

  • Is there anything else you can tell the Court and all of us about the man?
  • You aren’t able to describe anything you remember about his face?
  • Why not?
  • Is it because you didn’t get a very good look at him?
  • Did he speak to you at all?
  • What did he say?
  • Anything else?
  • What did his voice sound like?
  • For example, was it deep, high or somewhere in-between?
  • Gravelly or clear?
  • Did he have any kind of accent? What kind?
  • What was he wearing?
  • Was there a street light? Where was it? Was it working? Was the man in the shadows?
  • You say he had a handgun. Are you familiar with guns?
  • Were you looking at the gun during the robbery?
  • Do you know the difference between a revolver and a semiautomatic?
  • What kind was this?
  • What color was the gun?
  • If the witness is familiar with guns: Could you tell what make it was?
  • What caliber?