cross examination techniques

8/2/2019 Cross Examination Techniques

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CROSS EXAMINATION -- THE ART AND TECHNIQUEDestroying Reality

What is proper cross examination? Ithas been called an art. an ability or talent acquired at birth.Others say effective cross examination is a matter of preparation: most, if not all. great cross examinations arecarefully planned and executed.

Aside from art and preparation. Francis Wellman lists some of the other elements which contributeto a successful cross examination:

It requires the greatest ingenuity; a habit of logical thought; clearness of perception; infinitepatience and self control; power to read men's mind intuitively, to judge of their characters bytheir faces, to appreciate their motive; the ability to act with force and precision; a masterfulknowledge of the subject matter itself; an extreme caution, and, above all, the instinct to discoverthe weak: point in the witness under examination. Itinvolves all shades and complexions of humanmorals, human passions and human intelligence. It is a mental dual between counsel and witness.F. Wellman, The Art of Cross Examination, (4th ed. 1948).

The jurors expect exciting cross examinations and look forward to them. The lawyer must be ready to meet theseexpectations. There lies tbe art.

Summarily, the cross examination should be thoroughly prepared, the cross should have a gameplan which fits into the overall theme and theory of the case and, the examination should be concise, to the point,easy to follow, and as the Texas oil well driller said:

"Once yo u have hit pay dirt, quit drilling. NTechniques

The techniques of cross can be conveniently and simply outlined.I. Preparation

A) Review everything availableB) Arrange the cross by topics

Il. Whether to Cross Examine


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A) Don't automatically cross examine every witness. If there is nothing to gain, do not crossexamine.

B) Cross examine only with specific objectives in mind.ID. The Objectives of Cross Examination

A) Obtain helpful informationB) Discredit witness andlor their testimonyC) Bolster the credibility of a third person who will discredit the witness being cross

examined.IV. The Art of WatchiIl!! and Listenillj!

A) Listen to the witness during direct examination. Watch the witness, read the bodylanguage. Don't be distracted by copious notes. Many times, the witness (by a look, a sigh or a direct answer)will indicate something of great significance.

B) Listen to the witnesses' answers during your cross. Very often, the witness (by an answerto a question) will give a telltale clue to some position on a very important matter. Most inexperienced lawyers areworried about the next question - and therefore miss the boat.

C) Watch a witnesses' eyes.

"Except in different matters, never take your eye from that of the witness. This is a channel ofcommunication, from mind to mind, the loss of which nothing ca n compensate. Truth, falsehood,hatred, anger, scorn, despair and all the passions -- all the soul, is there." R. Harris, Before andat Trial, (1980).

The Attorney's Demeanor Should be Completely Courteous and Appropriate to the Witness,Jurors sympathize and identify with most witnesses - not with the lawyer. Therefore, unless you

are fairly sure that the jury dislikes the witness, the lawyer should always be courteous and should not exhibit anytemper. browbeat or try to intimidate the witness.The Ten Commandments of Cross Examination

Professor Irving Younger. in a letter to Cicero, sets out the Ten Commandments of CrossExamination. The basic principle behind the Ten Commandments is to provide the lawyer with the basic tenets to


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prepare the advocate to cross examine a witness competently. However, before any cross examination begins, theadvocate must know what he or she will say to the jury at the conclusion of the trial about the credibility and/orthe testimony of the witness to be cross examined. Therein lies the secret of cross examination -- the advocate willcross examine only to the extent necessary to obtain the information he or she needs to support the argument plannedill advance to be made in the closing argument. Once tbat information has been obtained, the advocate will STOP.

With that preface, here are the Ten Commandments of cross examination.1. B e B riefII. Short Questions, Plain WordsIII. Ask onJy Leading QuestionsIV. Never Ask a Question to Which You Do Not Already Know the AnswerV. Listen to the AnswerVJ. Do Not Quarrel With the WitnessVII. Do Not Permit the Witness to ExplainVIII. Do Not Ask the Witness to Repeat Testimony He Gave on Direct ExaminationIX. Avoid One Question Too Manyx. Save the Explanation for Summation

Always End on a High Point

V. The Uncooperative WitnessThere are a number of techniques that can be used effectively to cross-examine the uncooperative witness.

In fact, the uncooperative witness can tum out to be the easiest to cross-examine and can seriously damage theopponent's case. Some of the techniques that can be used When a witness tries to be uncooperative are as follows:

repeat the question"I'm sorry, maybe you didn't hear me but the question was ..."Perhaps I didn't ask that question very well, what I meant to say was ...'The answer is, yes?"


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"The light was green? .. green? ... green?""J wish I could answer you. IfI could I would tell you what safety really is. But fortunately, thatis for the jury to decide."I know you wanted to say that sir, but my question is ... "" I thank you for that, but my question was ..."You had to say that didn't you? Somewhere along the line you determined in your own mindthat you would say that didn't you?""Did that lawyer over there want you to say that?"


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1. It was after 9:00 p.m. Depo. p. 7, 1 . 11Depo. p. 7, 1 . 14. Itwas dark.

3. There were no street lightsat that comer Depo. p. 8,1. 3.4. Standing on thefar comer opposite the store. Depo. p. 9, 1 . 25. Advertisements blockedview from waist downthrough the store window. Depo. p. 9, 1 . 146. Not wearing glassesat the time. Depo.p.l0,1.167. Have beenprescribed eyeglasses fornearsightedness Ophthalmologist prescript.

II. CONTROL THE WITNESSA. Structuring the Cross: employ the "three parts" of cross examination

First: make the witness your witness by having him concede factualpoints in your favor andlor that are part of your burden of proof, andwhich are firmly established through prior. statements and/or other sources.

This is the pre-planned part of the cross examination.Second: then, and only then, should you seek to discredit the unfavorabletestimony given by the witness on direct.

This is the more spontaneous (and more hazardous) part of thecross examination.

Third: end strong.Always save a "zinger" for the final question. As summarized bySteven Lubet in Modem Trial Advocacy, L:lw School Edition(2000, Nat. lnst. Trial Adv.), pp. 85-86, the "zinger" should be (a)clearly admissible, (b) undeniable, and (c) central to your themeand theory.

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B. Leading questions are the rule (open ended questions the rare exception)1. Short, concise, factual points

The judge is more likely to reward crisp, short, factual leading questionswith admonitions to the witness to answer only the question asked.

2. Avoid complex, propositional, or "ultimate questions," as they permit thewitness to explain, argue, quibble, equivocate, causing you to lose control.

Save them for closing argument.Propositional: Instead of: "It was too dark to see clearly, correct?"

Make a series of crisp factual points backed up bydeposition testimony, prior statements:It was 9:00 p.m.;there were no street lights;moon was not up.

Ultimate: Avoid the temptation to ask the witness to agreewith ultimate propositions/conclusions the cross isdriving toward: "So then, 1"Once the witness understands the ultimate point youare trying to make, he will disagree, quibble andequivocate, causing you to lose control. In otherwords, don't "lead with your chin."Save the "ultimate" points for closing argument (ormake them through direct examination of friendlywitnesses).

3. Resist the temptation to ask "why," "how," or other questions elicitingexplanations. The temptation is strongest when the witness gives an unexpectedor seemingly inexplicable answer.

The judge will allow the witness to explain and usually theexplanation will hurt you.

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Example:Question: "You just said you left your apartment, whichwas over a half mile away from the liquor store, at aboutfive minutes before nine o'clock, didn't you?"Answer: "Yes."Question: "But when my opponent questioned you ondirect, you claimed, didn't you, that you saw my cliententer the liquor store, over a half mile away, at nineo'clock?"Answer: "Well, yes, I guess that's what I said."Question: "Well, was that your testimony or wasn't it?"Answer: "Well, yes."(And then, succumbing to the temptation, the questionerplows ahead with:)Question: "Well, would you care to explain to the jury howyou could walk over one half mile through 4 cityintersections with traffic lights in less than 5 minutes?"Answer: "Simple. I didn't walk. I caught the 9:00 expressbus a little early in front of my apartment and it let me offat the comer by the liquor store just at the time I saw yourclient enter the store. The express bus did not have to stopfor red lights, and got me there in under five minutes."OUCH!

4. Avoid argumentative questions, as you will get what you ask for:The witness will argue, and you wiUlose controLArgumentative: "Wasn't it unusual that. .. ?""Wouldn't it have been just as easy to .... 7"

"Wouldn't it have been safer to... T"Save argument for your closing.

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Exception: If the cross has gone very well, an argumentative question atthe conclusion of the cross can make a rhetorical point with the jury evenif the witness disagrees and/or argues:"Mr. Parker, installation of a $100 dollar safety bolt would haveprevented this tragedy, now isn't that true?"

C. Listen, listen, listen (and don't be greedy),Has the direct really hurt you? (If not, don't cross).

Has the witness really said good things, although perhaps not as explicitly a syou'd like? (If so, don't be greedy, and don't cross).Are there "gaps" in the direct examination and/or factual points that the witnessshould have made, but did not? If so, don't cross, but save for closing argument.Succumbing to the temptation to bring out the gap on cross is likely to result in:

Question: "Mr. Parker, I listened carefully to your testimony on direct,and you never said that you actually saw my client enter the liquor store,did you?"Likely Answer: "I guess the prosecutor failed to ask, but, yes, I did seehim enter the liquor store."OUCH!

D. Use sequencing, incremental questioning, "indirection" and/or "misdirection" to getat the truth.(The concepts of "indirection and "misdirection" are borrowed from Lubet,Modem Trial Advocacy, Law School Edition, supra, pp. 78-84 and 96-99).Sequencing and incremental questioning:

Start with friendly, complimentary, and/or non-controversial points, andthen move to controversial points:

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Often the non-controversial points will come from "whole person"sources such as internet, resumes, publications, etc.

"You are a lawyer with 30 years experience?""You specialize in public securities offerings?""You have handled over 20 public offerings of securities?""You sit on the boards of three publicly tradedcompanies?"

and then move to more controversial points:"In 1989, you also sat on the board of Acme Widgets?""And Acme Widgets was a client of your law firm?""In fact, in 1989, your finn charged Acme Widgets $2.5million in legal fees, correct?""You knew of the proposed merger of Acme Widgets withSuperior Widgets, didn't you?""In fact, you voted in favor of the merger, correct?""But you never advised Acme Widgets that the mergerexposed it to registration requirements under the Securitiesand Exchange Act, did you?"

Use Indirection, Misdirection to get at the truth.Design and sequence questions in a way to "misdirect" the witness to thecontroversial (and true) fact:

Example (drawn from Lubet, supra, p. 80):Q: "Isn't it true that you expected to see a fire truck at thatcomer?"A: "Certainly not, I never expected a fire truck."Q: "You weren't looking for a fire truck?"

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