Cross-examination is like a chain saw. In the hands of the careless advocate, it can dismember your own client’s case with a single mistake. For the prepared trial lawyer, cross-examination offers the opportunity not only to shape and advance the client’s case but also to blunt the opposition. Its importance is characterized by Professor Wigmore as “the greatest legal engine ever invented for the discovery of the truth.” Consider the following guideposts when executing a powerful cross-examination:
Understand the purpose of cross-examination.
The purpose of cross-examination, like all aspects of trial, is to argue your case. Question with laserlike precision, calling for answers that develop your theme or protect it from adverse testimony.
Cross-examination in most instances is limited to the subject matter of the direct examination, and to matters affecting the credibility of the witness. Select only topics most advantageous to your case and have specific goals in mind. For example, you might desire to discredit the witness by demonstrating bias and casting doubt on truthfulness.
Q: Mr. Jones: You entered into a plea with the State?
Q: You agreed that if you testified for the State you would not be prosecuted?
Or you might attempt to obtain helpful testimony supporting your case.
Q: Officer, when you stopped my client and asked him to show you his license and registration, he was cooperative?
The concept known as “hitchhiking” can help obtain useful testimony from an adverse witness.
Q: Mr. Jones, you agree that the textbook authored by Dr. Wisdom is respected within the scientific community?
Arrange your topics, strategically allowing for spontaneity.
The order of presenting the cross-examination is consequential. Take advantage of the doctrines of primacy and recency — begin strong and end strong. You may prepare to begin with one topic, but the trial testimony of the witness on direct may well require spontaneous rearrangement of your planned cross-examination. This highlights the significance of watching and listening in the courtroom and not necessarily being wedded to your prepared questions.
Control the witness.
Most witnesses on cross-examination do not want your client to prevail. Be precise and ask questions to the extent possible for which you know the answer, have the ability to refresh the recollection of the witness or can impeach the witness.
Q: Doctor, you agree that when you examined Mr. Arnold in the emergency room, he complained to you that his throat was very sore?
A: No, he did not.
Q: Doctor, please examine Plaintiff’s exhibit 4 in evidence. These notes are in your handwriting?
Q: Will you kindly read to us beginning on line 3 page 2?
A: Yes. The patient complained of a very sore throat.
The technique for exercising control during cross-examination is the leading question. This darling on cross-examination is prohibited on direct examination with only a small number of exceptions. The best leading questions are short affirmative questions containing a statement compelling a favorable response.
Q: Mr. Jones, you saw the collision that brings us to court today?
Q: You saw the blue Audi driven by Mr. Smith enter the intersection of Baltimore and Charles streets?
Q: The car was heading north?
Q: You observed the traffic light facing Mr. Smith as he entered the intersection?
Q: You observed that the traffic light facing Mr. Smith as he entered the intersection was red?
Q: Mr. Smith failed to stop at the red light?
Consider the manner of your examination.
The manner in which you approach the witness can be as consequential as the matter on which you question the witness. During direct examination, watch the witness —and the judge and jury. Do not forget that a woman who lost her husband in the accident would call for one approach on cross-examination, while a perjurious witness would call for another. Sympathy for the widow; a more aggressive approach for the latter. Regardless, courtesy is key. The jury might well appreciate it, and it is required by the ideals of professionalism. Consider that even a courteous examination can elicit the facts desired. Be careful not to insist on a yes-or-no answer, if the witness resists. Judges and juries may resent this approach. If a witness does not answer the question, repeat it: “Thank you for your testimony, but my question was: You saw Mr. Jones drive through the red light?”
Whenever you stand to conduct cross-examination, have specific goals in mind to achieve before you take your seat. Here are some objectives that may from time to time suit your particular situation:
- Obtain testimony from the adverse witness to develop your own case independently.
- Show discrepancies between direct-examination testimony and the actual facts.
- Use the testimony of the witness to corroborate the favorable testimony of other witnesses.
- Use the testimony of one witness to discredit the unfavorable testimony of a previous witness.
- Impeach a witness, or his or her testimony.
- Impeach with extrinsic evidence by demonstrating a flawed character with prior bad acts or a prior conviction.
Over the next year, I shall focus on specific goals of cross-examination, sharing specific examples from actual cases.
Best wishes for success in the courtroom with your cross-examinations, even if I am your opposing counsel.
Paul Mark Sandler, trial lawyer and author, can be reached at firstname.lastname@example.org.
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