Zachary Margulis-Ohnuma
Sample Cross Examination
Cross-examination at trial of alleged victims of sexual crimes is an extraordinarily sensitive task. It requires not only extensive preparation but also a delicate balance between aggressively discrediting the witness on the one hand and respecting her as a person on the other. Testimony can change in real time and the questioner must listen intently to the answers even as he formulates his next question. Often, a strategic decision is made not to follow up—the best question is no question at all.
The following is a actual transcript from a jury trial in which Mr. Margulis-Ohnuma's client was acquitted—i.e found not guilty—of abusing the complaining witness by rubbing up against her with his erect penis in the subway. This text has not been edited, except to remove the names of the defendant and the complaining witness. On direct examination, the witness had testified that she saw the client rubbing against her and felt his penis "becoming erect." As the following excerpt reveals, her story changed over time as she told it to the police, the assistant district attorney (designated below as the "ADA"), and the jury. Upon reflection, what actually happened was not so clear. Despite two other eyewitnesses—the two police officers who arrested the defendant—the jury acquitted after approximately 45 minutes of deliberations.
THE COURT: Okay. Counsel, you have cross-examination?
MR. MARGULIS-OHNUMA: Yes, judge.
CROSS-EXAMINATION BY MR. MARGULIS-OHNUMA:
Q. Good morning, Ms. G.
A. Good morning.
Q. My name is Zachary Margulis-Ohnuma. I'm the lawyer for Mr. C. I'm going to be asking you some questions. Is that okay?
A. Okay.
Q. You got on the train at 59th Street; right?
A. Correct.
Q. And your testimony was you felt something touching you from behind?
A. Yes.
Q. But you don't know what that was at that point that was touching you; right?
A. No.
Q. And then you turned around?
A. I turned around and saw a bag, handle of the bag on his shoulders.
Q. I'm sorry. You turned around and you saw the bag on his shoulders?
A. Yes.
Q. And he was wearing a red shirt; right?
A. Correct.
Q. And then at that point there was space in front of you; correct?
A. There was a person in front of me.
Q. Okay. Did you — after you turned around, did you move forward to get away from the person behind you?
A. I do not recall.
Q. Well, you weren't jammed up against the door, though, were you?
A. No, I was — there was a person in front of me, so I was against the pole.
Q. So there was — withdrawn. Was there space to move in front of you?
A. No.
Q. I think you testified on direct that it was —that the train was crowded; right?
A. Correct.
Q. Your testimony now is it was so crowded you couldn't move; right?
A. It — well, there was a person in front of me, so I didn't want to go on top of them but there was enough room behind the defendant where he could have stepped back a little.
Q. When did you determine — withdrawn. When you say there was enough room behind the defendant, you were not facing behind the defendant, were you?
A. No but I looked over when I realized that he was on top of me.
Q. And that's when you saw all of this room?
A. Yes.
ADA: Objection to characterization. All of this room.
THE COURT: I didn't hear, all of this room. Is that what you said?
MR. MARGULIS-OHNUMA: Yes.
THE COURT: That is not exactly what the testimony was. You can rephrase the question. The general nature of the issue you are evaluating is entirely appropriate but the characterization does seem inappropriate, so the question is stricken. The answer is stricken. The objection is sustained. Stay in that area.
MR. MARGULIS-OHNUMA: Thank you, Your Honor.
Q. When you looked back, you saw that defendant; right?
A. Yes.
Q. And then you looked beyond the defendant and you saw something behind him?
A. I saw there was enough room for him to step back.
Q. And did you see there were some other people behind him, too?
A. Yes.
Q. And there was a casually dressed African-American man behind him; correct?
ADA: Objection.
THE COURT: It's cross-examination. It's allowed. Did you see whether there was such a person like that?
THE WITNESS: No.
Q. Did you see a person like that anywhere on the train that day?
A. I wasn't looking.
Q. Is it fair to say well, you got a good look behind where — withdrawn. You got a good look behind the person behind you; is that right?
A. I did.
Q. Do you understand the question? If you don't, just let me know.
A. I don't understand.
Q. I'm sorry. You looked behind you. You saw a person; right?
A. I didn't — I saw that a person was standing there. I didn't look at the person.
Q. Right. Then you were able — your testimony is that you were able to see what was behind that person; right?
A. I was able to see that he had enough — he was able to step back.
Q. Okay. And you made that determination about his movements based on the space behind him, the area behind him; right?
A. Yes.
Q. So your testimony is that you got a pretty good look—tell me if I'm right. You got a good look at the area behind the person who was behind you; correct?
A. I don't remember.
Q. Since you don't remember that, you don't really know what was just behind him, do you?
A. There was other people.
Q. But you didn't notice a casually dressed African-American man among those other people, did you?
A. No.
Q. In fact, as you were — well, withdrawn. Do you know or have you — let —give me a second. I'm sorry. Do you know an Officer Edwards? Do you know who that is?
A. No.
Q. Do you know an Officer Pinder? Do you know who that is?
A. No.
Q. You had a discussion with someone who introduced himself as a police officer after you got off the train; right?
A. I don't know. A police officer approached me.
Q. Do you know that officer's name?
A. No.
Q. And you gave that officer a statement; correct?
A. Yes.
Q. Did you see that officer on the train before you got off?
A. Before I got off, no. I saw them once he tapped me on the shoulder.
Q. So he wasn't — was he in — withdrawn. He couldn't—I don't want to put words in your mouth. You didn't see him on the train anywhere; right?
A. No, I was facing the door.
Q. But you got a look behind where the defendant was; right?
A. Yes.
Q. So it is fair to say that he wasn't behind the defendant; right?
ADA: Objection.
THE COURT: Are you able to answer that question?
THE WITNESS: No.
THE COURT: Okay. Objection sustained.
MR. MARGULIS-OHNUMA: Thank you.
Q. It was pretty hot that day, wasn't it?
A. I don't remember.
Q. The train was headed southbound; correct?
A. It was heading downtown.
Q. And as the train was moving it was swaying back and forth, wasn't it?
A. Yes.
Q. And that particular train stopped and started a couple of times during that journey, didn't it?
A. I don't remember.
Q. You said this has happened to you two times before; correct?
A. Correct.
Q. And in either of those occasions you didn't report it, did you?
A. No.
Q. But on this occasion you did report it; right?
A. Yes because the cop stopped me.
Q. So it was — were you planning to report it anyway?
A. No.
Q. And when the cop stopped you, did he tell you why he was stopping you?
A. I don't remember.
ADA: Objection.
THE COURT: The objection is overruled. It's a perfectly fair question.
Q. Sorry. You don't remember whether he told you that?
A. I don't remember.
Q. But in any event you told him what had happened; right?
A. Yes, when I wrote my statement down.
Q. Where — now, that was in the station at 51st Street; is that right?
A. Yes.
Q. That is a really small station; right?
A. Yes.
Q. And when you were talking to him there were people coming off the train still?
A. Yes.
Q. And did he take you somewhere aside where you could talk better or was it —did you do it right there on the platform?
A. It was towards the exit.
Q. All right. I think you said there were some stairs leading up to the exit?
A. Yes, you go up a flight of stairs and the stop is there. And there is another set of stairs to go outside. I was up the set of stairs where I was able to see the defendant up the other stairs.
Q. I have to ask you to keep your voice up, please. Can you repeat that?
A. Sorry. I was going up the stairs. And right where the booth is, that's where I was writing the statement. And I looked up the other flight of stairs to go up the stairs to go outside. That is where I saw the other police officer speaking to the defendant.
Q. So you spoke to defendant near the token booth; right?
A. I-
ADA: Defendant?
THE COURT: I don't think she said that she spoke to the defendant. I think you might have.
Q. To the officer?
MR. MARGULIS-OHNUMA: Sorry.
THE COURT: That's okay.
Q. You spoke to the police officer?
A. Yes.
Q. Near the token booth; right?
A. Right.
Q. And this was not someone that you — withdrawn. Where did he first approach you?
A. Who?
Q. The police officer. Sorry.
A. Once I got out of — once I was walking up towards the stairs, I felt a tap on my shoulder. He identified himself as that he was the police officer.
Q. And you continued walking up to the token booth area; correct?
A. Yes, I was going up the stairs toward the booth.
Q. Before he tapped you on the shoulder you had never seen that man before?
A. No.
Q. As far as -you have no reason to believe that, yes or no, that that man was on the train with you, do you?
A. No.
Q. You gave him an oral statement, right? You said something to him; right?
A. No, I just wrote down a written statement
Q. You wrote down what you said; right?
MR. MARGULIS-OHNUMA: I'm going to mark for identification Defense Exhibit A. Showing—I would ask that you hand that to the witness.
ADA: Thank you.
COURT OFFICER: Defense Exhibit A, marked for identification, being shown to the witness.
Q. Have you had a chance to look at that?
THE COURT: You just have to answer verbally, ma'am.
THE WITNESS: Oh. Yes.
THE COURT: Have you had a chance to look at it?
THE WITNESS: Yes.
THE COURT: Very good. Thank you.
Q. You testified, on direct, that you consider yourself the victim of a sexual crime; right?
A. Yes.
Q. And you testified on direct that the person who was touching you had partially or had a — was starting to get an erection is what you say; right?
A. Correct.
Q. You didn't actually see his penis, though; right?
A. No.
Q. And really the — withdrawn. Would you agree with me that the reason that this was a crime was because you believe this man was touching you through your clothing with his penis? Is that right?
THE COURT: Sustained.
Q. Well, when you gave your statement to the officer, you wrote it out for him; right?
A. Yes.
Q. And he asked you to write down what happened; right?
A. Correct.
Q. And you at least made an effort to write down everything that happened, didn't you?
A. Yes.
Q. But you didn't write anything about an erection, did you?
A. No.
Q. And you didn't write anything about his penis, did you?
A. No.
MR. MARGULIS-OHNUMA: Your Honor, at this time, I'd like to offer Defense Exhibit A into evidence as prior inconsistent statement.
ADA: No objection to it being offered into evidence.
MR. MARGULIS-OHNUMA: Thank you.
ADA: I object to that characterization of this evidence.
THE COURT: Come up on the record. (Whereupon discussion held off the record.)
THE COURT: For the record, defense counsel made a comment about the nature of the document that he's offered into evidence. That comment is irrelevant, so I'm going to ask you to disregard the comment. He's offered the document. The DA has not objected to you seeing it, so I'm going to receive it into evidence but the value of it and the means or the method for which you use it during the course of your deliberations is entirely up to you regardless of any characterization that anyone else might make of it. Okay. So it's received as Defendant's A without objection.
BY MR. MARGULIS-OHNUMA: (CONT'G)
Q. Ma'am, is that your handwriting on Defendant's Exhibit A?
A. Yes.
Q. And could you please read for us just the substance of the statement there?
A. Read the whole thing?
Q. Yes. Please.
A. I was standing near the door for my one stop. This man was close —
THE COURT: I'll just ask you to read the whole thing. Now, that sentence that's there on that page, if you would just read that again.
THE WITNESS: From, "this man"? THE COURT: No. From, "the door", please. Thank you.
A. I was standing near the door for my one stop. This man was close near my leg that I kept moving for him not to touch me.
Q. And is that the whole statement?
A. No.
Q. What else does it say there?
A. Oh, it's the whole statement on the sheet. Yes, I gave a quick statement. I gave a quick and accurate statement not a complete statement.
Q. And then there came a time —withdrawn. Now, at some point you say you identified the person in the red shirt; correct?
A. Yes.
Q. And where did that —where was that person standing when you identified him?
A. He was right behind me when I identified him. It was a red shirt.
Q. I'm sorry. What I mean was the police brought you to look at the person that they had apprehended; right?
A. I saw him before. I saw what he looked like before.
Q. What do you mean when you say you saw what he looked like before?
A. When he went out of the train and he put the bag, I looked at him.
Q. But that was before the police approached you; right?
A. Yes.
Q. After the police approached you, did they take you to go look at him?
A. Yes. When we were going up, I looked up and saw him talking to the other police officer.
Q. And when you looked up and saw him talking to the other police officer, where was he talking to the other police officer?
A. He was on the top of the stairs.
Q. On the top of the stairs. Near the token booth?
A. Yes, there. And when you -
BY THE COURT:
Q. I'm going to just interrupt for just a moment. I'm sorry. At the top of the stairs near the token booth. I'm trying to figure out if you mean that the person you identified was near the token booth or was at the bottom of the stairs near the token booth. Do you understand my question? It would mean two different things. I'm just trying to get a better understanding of the specificity.
A. When you get off the train there is three or four stairs when you get to the main platform.
Q. Is that like a flight of stairs that would take you up to the upper level?
A. When you get to this booth, there is only three stairs. When — once you go up to the booth, you go up another three or four stair steps. Then you go around. You go up another flight of stairs outside.
Q. So when you observed the individuals where were you standing?
A. I was standing near the booth.
Q. So you had gone up those three or four flights, three or four steps?
A. I was on the platform.
Q. From the platform to the booth?
A. Yes.
Q. Where was the individual whom you were identifying?
A. He was up the other set of stairs, at the top where I could see him speaking to the police officer.
Q. That is that small set of stairs that you're talking about or before the turn or somehow -
A. Before the turn of those stairs.
Q. So there's a little landing there before you go back up the full stairwell to the street?
A. There's two flights of stairs. There is one, then you turn, then you go up another, then you're outside.
Q. So he was?
A. He was on the first one.
Q. He was at the top of the first one?
A. Yes.
Q. Would you be able to approximate if that is a full flight of stairs or is that just a—is that just a few stairs there?
A. It is about five — six stairs.
THE COURT: All right. Go ahead.
BY MR. MARGULIS-OHNUMA:
Q. How far were you from—when you saw him, how far were you from the person you identified?
A. It would be from me to you.
Q. And —
ADA : I -
Q. You were with one police officer; correct?
THE COURT: Let's just try to dimension-ize that.
MR. MARGULIS-OHNUMA: I'm sorry.
THE COURT: From the witness to counsel, anyone, an approximation?
MR. MARGULIS-OHNUMA: I would say about 15 feet.
ADA: Between 10 and 15.
THE COURT: It seems one or the other is appropriate, so we'll leave them both on the record. Thank you.
MR. MARGULIS-OHNUMA: Okay.
Q. And you were with one police officer; correct?
A. Correct.
Q. And the other police officer was with the person you identified; correct?
A. Yes; correct.
Q. And did you say anything to the police officer that you were with?
A. The police officer that I was with?
Q. Correct.
A. I just wrote a statement.
ADA: Asked and answered, Your Honor.
THE COURT: No, it's cross-examination. Mind you, I don't necessarily understand the question as to form. I'm going to sustain the objection.
Q. When you were — there came a point in time when you saw the defendant; correct?
A. Yes.
Q. And you were with a police officer at that point in time; correct?
A. I saw him first. Before the police officer approached me, I saw him when he got out of the train, when he put the bag over.
Q. But then there came a time when you were with the police officer that you after that, that you also saw the defendant; is that correct?
A. Yes, he was on top of the stairs with the other police officer.
Q. And you were — were you talking to the police officer that you were with at that point?
A. Correct.
Q. And the police officer at the top of the stairs, were you also talking with him?
A. No.
Q. Was he was — was it noisy in the subway station at that moment?
A. No.
Q. Were you facing towards the officer at the top of the stairs or away?
A. Which officer?
Q. The one at the top of the stairs.
A. I was facing them, the two of them.
Q. And did that officer say anything — did the officer at the top of stairs say anything that you could hear?
A. No.
Q. Did he gesture in any way?
A. No.
Q. Was it clear to you that he had somebody in custody?
A. Yes.
Q. And why was that clear to you?
A. Because I saw the person that I identified in outside of the train with the red shirt.
Q. And from there where did you go?
A. Went to work.
Q. Did you get back on the train?
A. No.
Q. Did you go upstairs after the defendant?
A. No, I went the other staircase because I didn't want him to see me.
Q. You went back down out of a different staircase; correct?
A. No, I was already on the train platform. I went up the stairs, the other stairs because there is two sets of stairs.
Q. On the other side of the token booth?
A. Yes.
Q. Now, there came a time after the incident when you received a telephone call from the District Attorney's office; is that correct?
A. Correct.
Q. And you had a conversation with an Assistant District Attorney at that time; is that correct?
A. Correct.
Q. And who was that Assistant District Attorney?
A. [ADA] if I pronounce her name correctly. I'm sorry.
Q. Counsel that is present here now; correct?
A. Yes.
Q. And during that conversation with [ADA], you didn't say anything about the erection either, did you?
A. Excuse me. What?
Q. During that initial conversation with [the ADA], you didn't say anything about the erection, did you?
A. I don't remember.
ADA: Excuse me. I didn't hear.
THE WITNESS: I don't remember.
Q. Now, can you describe for us the bag that you say the person was carrying?
A. I think it was a black duffle bag.
Q. Like a round duffle bag?
THE COURT: She said black, I thought.
MR. MARGULIS-OHNUMA: I was asking the shape.
THE COURT: I see.
A. Like a regular gym bag. It was like long.
Q. With hard sides or soft sides?
A. I don't know.
Q. You said — back to you were in the train, there came a time when you pushed back against him; correct?
A. Yes.
Q. Why did you do that?
A. Because I felt him too close to me.
Q. SO you were jostling with him a little bit; right?
A. I moved over for him like -
ADA: Objection. Characterization.
THE COURT: I will sustain it as to that. You can stay in that area. Just rephrase the question.
Q. What was the answer? Why did you push back against him?
A. Because I felt that he was too close on top of me.
Q. So you were trying to force him away from you; right?
A. Going like that to move away. (Indicating.)
THE COURT: Going like that how?
THE WITNESS: I was moving my shoulder to move back.
THE COURT: Also moving the left elbow?
THE WITNESS: Yes.
THE COURT: The witness is demonstrating with the left elbow.
Q. Would it be fair to say you threw an elbow at him?
A. No, just tap. I didn't give it force. It was just a nudge.
Q. Is there — you say this has happened to you twice before; right?
A. Correct.
Q. And the time two years ago, could you just tell us again what happened with that incident?
A. I was on the 6 train, as well. I was at 86th Street. I was again next to the door. I was leaning on the pole, as well; and this guy, he had his knee against mine, like as he was pinning me against the wall — excuse me. Against the bars.
Q. And did you consider that to be sexual abuse?
A. Yes.
MR. MARGULIS-OHNUMA: Nothing further.
THE COURT: Okay. Redirect examination.
ADA: Yes, Your Honor.
BY THE ADA:
Q. Ms. G., you said that — on cross-examination, that you were not planning to report this incident?
A. No.
Q. Why not?
A. I was embarrassed to even talk to anybody about it.
Q. And why didn't you report the previous two incidents?
A. I just wanted it to go away, pretend like it never happened.
Q. Is it fair to say that because of a police officer tapping you, you had the opportunity to report this?
A. Yes.
MR. MARGULIS-OHNUMA: Objection.
THE COURT: Sustained. It's a leading question. The answer is stricken.
Q. Why did you report this incident?
A. I was finally tired of some people taking advantage of myself.
Q. Your written statement, why didn't you write everything down that happened?
A. I was embarrassed, mortified. I just wanted it to be over.
ADA: Nothing further.
MR. MARGULIS-OHNUMA: Nothing further, judge. Thank you.