Cross examination means interrogating the Opponent's witness with permissible questions in the court of law.
Like direct examination, it is primarily a method of proving your case by eliciting testimony from a witness. That witness has given information on direct examination that favors your opponent, and now you must pick over what remains to find the few nuggets that favor your own theory of the case.
For any Lawyer, an effective cross examination is the biggest
challenge! It can be both rewarding as well as damning to his / her case. In
short what questions to ask and more importantly what not to ask in a cross
examination determines the fate of the case.
Its
success depends not on your ability to ask clever questions, but on your
ability to control the flow of information so that the witness’s testimony is
limited to the selected items you want to bring out. Some witnesses will be
hostile, some suspicious, and some defensive. None will react with gratitude
when you attack their credibility.
If
you fail to control the cross-examination, the chances are that the witness
will end up repeating the harmful direct examination and explaining away the weaknesses
in it that you wanted to emphasize.
On
direct examination, witnesses are controlled through preparation and rehearsal.
On cross-examination, however, it is usually impossible to rehearse, so you
will have to rely on meticulous preparation. Cross-examination is a dangerous
foray behind enemy lines. The only way such incursions can be successful is if
they are carefully planned, tightly controlled, and thoroughly disciplined.
No one is born The Complete Angler or The Master Cross
Examiner; instincts have to be honed first. The best way to learn to
cross-examine is to watch good lawyers in action, copying whatever seems
effective. Then, once you master the fundamental rules, the leap to skilled
cross-examiner can be a short one, if you take as many depositions and try as
many cases as you can.
As every seasoned trial lawyer will tell you, the rules are not written in stone. Nor is this list exhaustive: It is meant to stimulate your thinking and to provide a framework for your own evolving style of cross-examination.
Although cross-examination is often viewed as an art, rather than a science, the following guidelines can assist even novice trial attorneys in conducting an effective cross examination.
21 Golden Tips For Most Powerful Cross- Examination
1. Preparation is Key:
As is true in nearly all efforts in the legal profession, proper preparation is the key to success in cross-examination. Effective cross-examiners are “quick on their feet” and are able to lead their witness down a pre-selected path to obtain the information that is vital to their case or defense.
Such skills are only possible through thorough knowledge of the facts of the case, as well as the law upon which the case is based. In an ideal world, the examining attorney will already know all the information he or she elicits from a witness during cross-examination.
2. Select a Purpose for your Effective Cross –Examination:
The first step in preparing a cross-examination is to decide what you hope to gain from it. How will cross-examination further your theory of the case? What evidence can you elicit that will help you in closing argument?
There are two very different goals you may try to accomplish:
1. eliciting testimony which will help you build your own case; and
2. attempting to weaken your opponent’s case.
Testimony that will help build your own case may take the form of important information that you need to prove your case, or facts that will corroborate the testimony of your witnesses.
You also may decide that there is more than one purpose for cross-examining a witness.
3. Make a Plan for Your Effective Cross-Examination:
The most effective method in reaching the determined goal is by formulating a plan to elicit relevant knowledge from the witness. Despite the apparent spontaneity of cross-examinations, the best ones are as meticulously planned as any other aspect of a trial. Effective cross-examination is the result of thorough investigation, research, and preparation done well in advance, not of some sixth senses for detecting human weaknesses.
4. Decide What Topics You Want to Include:
At the early stages of preparation, you must distinguish between “topics” and “questions.” A topic is a discrete issue you want to raise on cross-examination because you expect to be able to establish something helpful to your theory of the case. A question is a means of achieving that end. To maintain control of a witness will usually require many specific questions to pursue a single topic.
Q: Aren’t you biased against Mr.A because of a fight you had?
When you turn that topic into specific questions, it will look more like this:
Q: Directing your attention to September 20, 2002, you attended a party at Mr.X's house, correct?
Q:
You saw Mr.A at that party, didn’t you?
Q:
About 10:00 pm, you and Mr.A began arguing?
Q:
And you punched him?
Q:
And then you told Mr.A you hated him, correct?
5. Decide the Order of Cross-examination
Topics :
Most
lawyers agree that cross-examination should not follow the chronological order
of direct examination, especially if you intend to impeach the witness. The
witness, through pretrial preparation, is likely to have learned this sequence
well and be ready with damaging testimony before you have even asked your questions.
Each question you ask may trigger a prepared paragraph of testimony rather than
the one-word answer you hoped for. If the order is changed so that it jumps
around in the chronology, then the witness will not have time to anticipate the
direction of the examination.
However, You might consider the
following order:
1.
High safety favorable evidence on contested issues.
2.
High safety evidence that corroborates your main witnesses.
3.
Medium safety favorable evidence.
4.
Low safety topics if absolutely necessary.
5.
Medium safety impeachment evidence.
6.
High safety impeachment attacking the witness’s testimony.
7.
High safety impeachment attacking the witness personally.
High safety topics are those
where you have a reason to believe that the witness will give particular
evidence, and have the ability to refute contrary testimony.
Medium safety topics are those
where the nature of the case raises a likelihood that the witness will testify
a certain way, but you have no direct way to refute contrary testimony.
Low safety topics are those where you engage in wishful thinking, hoping that a witness will give favorable testimony, but having no way to be sure.
6. Prepare Questions you're Going to Ask, As Well As The Answers you Anticipate Receiving:
This is the agenda you'll follow when it's time to cross examine the witness. Every single question you're going to ask, as well as the answers you anticipate receiving, should be planned out in advance. The goal is to ask a series of to-the-point questions that will steer the witness into giving answers that benefit you by revealing the holes, biases and weak points in the witness's testimony.
Every answer should be backed up by research you conducted. For example, if you ask a witness how long he or she worked at a certain industry, you should have documented proof from the hospital that he or she worked there for a certain amount of time. That way, if the person gives an answer you didn't anticipate, you'll have evidence to the contrary.
7. Try to Index The Depositions and Prior Statements :
The main reason for carefully preparing specific questions based on the witness’s own prior statements is for control. If the witness deviates from his or her prior version of the events, at least as to material issues, you have the ability to impeach that inconsistent statement. However, this ability is lost
If
you cannot find the specific prior statement. The simplest way is to note beside
each question you prepare exactly where it came from - something you can only do
if the questions are written out.
For example, if you have prepared a high safety question that comes directly from lines 5 - 6 on page seven of the witness’s deposition, you might make some notation like “D7/5 - 6” in the margin beside your question. That way, if you need to impeach, you can pick up the deposition and go right to the appropriate sentence without dropping a beat.
8. Ask Only One Fact per Question :
Avoid asking long-winded questions that are overburdened with facts. If your questions contain too much information, you're more likely to get an answer you didn't expect. Keep your questions simple and only include one fact per question. By doing this, you keep your cross examination clear and crisp. Also, it’s easier to impeach a witness about a single fact as opposed to a whole host of them. In addition, single fact questions increase the number of questions you can ask the witness to which you will get a “yes” answer. You would rather have the witness say “yes” to you 50 times than 5 times.
Thus for example, instead of asking “At 12:00
am, you went downstairs to the kitchen to get a drink of water, but you forgot
your spectacles, is that right?”. It would be better to breaks this topic
down into single fact questions like this -
Q: Were you home at 12:00 am?
Q: You went downstairs, didn’t you?
Q: You went to the kitchen?
Q: You got a drink of water?
Q: You were not wearing your spectacles, were
you?
9.
Ask Leading and Suggestive
Question Not Open-ended Questions :
Cross examination is not the
time to ask the witness to tell his story. Don’t ask open ended questions. Ask
mostly leading questions. Leading questions are those which
suggest the answer. In other words, leading questions are simply
veiled statements of fact, which request a simple “yes” or “no” response
from the witness. Leading questions allow the trial attorney to emphasize
the points he or she wants the Judge to focus on. A trial attorney
should ask questions in such a manner as to preclude a witness from
expounding on his or her answer, or providing a narrative response.
The best form of a leading question states a
fact and asks the witness to agree with it. Lead
the witness by stating a fact in the form of a question, then moving on to the
next fact. Your voice inflection can make the statement of fact sound
like a question. For example:
Q:
You went downstairs, is that right?
Q:
You went to the kitchen?
Q:
You opened the knife drawer?
Q:
You took out a butcher knife?
Q:
You cut an apple with it?
However, open questions sometimes may be appropriate to break up the monotony of leading questions, or may be necessary for inserting a particular factual suggestion into your question.
For example, When you’re cross-examining an expert witness, it can be more effective to have the information come from that person’s mouth, especially if you plan to loop back and catch him in an inconsistency.
But open-ended questions should be carefully controlled. Be relatively sure of what answer the person will give, and follow up with more leading questions to keep the cross examination on track.
10. Never Ask a Question Unless you Already Know the Answer :
Something you have heard over and over is that “never ask a question unless you already know the answer” Trial is not the time to be surprised. Be surprised when you investigate your case or when you receive responses to interrogatories. But don’t be surprised at trial. Surprise can destroy even the best of preparation. A trial attorney can avoid surprise by eliciting only those responses that he or she knows are coming.
The exception to this rule occurs in
circumstances when the chance of victory is bleak, and the attorney’s case
has a slim chance of winning. Some of the greatest victories are achieved
through gambling on a slim chance. If there is nothing to lose, then the
unexpected answer might be the answer needed to obtain victory. Put it this
way, if the known facts will lead to certain defeat, the only chance for
victory is to elicit unknown facts.
11. Ask Short, Concise Simple and Understandable Questions :
Even questions that suggest the answer can cease to be effective leading questions when they become too complex. The complexity of a question can allow a witness wiggle room to deny a point the attorney wishes to affirm, or vice versa. A compound leading question can have multiple answers, and thus greater potential for a witness to disagree with the point you are attempting to make.
a) Q:
Did you then proceed to exit your patrol vehicle?
b)
Q: Did you get out of your car?
Again, by using short questions, you can exercise control over the witness. By obtaining his concession to each new fact necessary to your ultimate goal, you can close off avenues of retreat which would otherwise be available to the witness as a means for defeating your chosen line of cross.
The time for drawing conclusions is closing argument, not cross-examination. Don't argue your case through the witness. When cross-examining you are eliciting information or discrediting the witness's evidence. You are not making submissions. Don't say, "Well don't you agree that if you were 50 meters away you couldn't have seen the accused without your spectacles on?"Limit your questions to, "How far away were you?" and "You were not wearing your spectacles ?" . Very rarely will you get the answer you want. The witness probably does not agree with you, and will try to explain the answer, and that question may allow the witness to turn the chain of questions, and sometimes the entire cross-examination, right around. So, Leave your submissions until your closing address.
13. Listen to The Witness’ Responses Carefully :
You must always listen to the witness's answers. During the course of testimony, especially a long one, a witness may make numerous statements that can be used to impeach his or her credibility, or otherwise bolster a trial attorney’s case. Many times, trial attorneys focus on the next question rather than thoroughly listening to the witness’ answers. The only way the trial attorney can take advantage of the opportunities presented by a witness is if he or she becomes aware of them. Listen to the witness’ responses carefully!
As soon as you ask a witness “Why?,” you have given the witness free rein to say anything the witness wants. This will enable a witness to justify sliding away from the answer sought. The classic illustration of this problem is the story about a case in which the defendant was charged with battery for biting off the complaining witness’s ear. On cross-examination, the eyewitness admitted that he did not actually see the defendant bite off the victim’s ear, but was nevertheless certain the accused had done so. The defense attorney asked the fatal question:
Q: If you didn’t see the defendant bite the victim’s ear, how can you say you are certain he did so?
A:
Because I saw him spit it out (FRED LANE, GOLDSTEIN TRIAL TECHNIQUE (3d ed.
1984).
15.
Don’t Argue with The Witness :
Sometimes cross examination does not go as planned. A witness trips you up, and despite your best efforts, you don’t get the answer you expected. Some attorneys would argue with the witness. If you find yourself here, stop. Consider moving on to the next question on your outline.
16. Control The Witness With Your
Eyes:
It
is more difficult to lie to someone else’s face. Make sure that if a witness is
going to tell a lie, he or she has to look you in the eye to do it.
17. Control Your Own Emotions:
Let
your joy at getting a favourable answer or your annoyance at damaging reply be
not reflected on your face. Your emotions must be firm when you are conducting
a difficult cross-examination. A cross-examiner, who loses his temper is sowing
the seeds of disaster of his case.
18. Learn How to Impeach with a Prior
Inconsistent Statement :
When
impeaching with a prior inconsistent statement, the rule is COMMIT, CREDIT AND CONFRONT.
First,
commit the witness to the fact he asserted during direct examination or
deposition on which you plan to impeach. Next, credit or build up the
importance of the impeaching statement. Finally, confront the witness with the
prior inconsistent statement by either reading it yourself, or preferably by
making the witness read it back to the judge. Make him choke on his own words,
words from his own mouth! Remember the fine line between being firm, yet always
professional, versus being hostile and rude. Leave it to the judge. They will
know what to do. Trust them.
It
is difficult to impeach with long or wordy statements. Reduce the material to
one critical fact or a few essential words. The buildup is critical.
A
witness’s truthfulness must be attacked before it can be supported. In other
words, it must be discredited before it can be accredited.
There are six basic impeachment
techniques:
a.
bias, interest, and motive
b.
prior convictions
c.
prior bad acts
d.
prior inconsistent statements
e.
contradictory facts
f.
bad character for truthfulness
19. Learn the Intricacies of Attacking
Credibility Through Means Other Than Impeachment:
Impeachment
is not the only mechanism for attacking a witness’ credibility.
Some
witnesses destroy their own credibility through evasive and unresponsive
answers. A skillful trial attorney need only let the witness do the work for
him or her in those circumstances. Other witnesses may give seemingly
bullet-proof testimony on direct, only to be discredited based on the financial
arrangements which secured their testimony, their personal, professional, or
financial interest in the outcome of a case, the means by which they prepared
for their testimony, their interaction with other witnesses prior to trial and
since the event which led to trial, or their relationship to the opposing
party.
Even
in circumstances where cross-examination seems unnecessary, it may be
beneficial to conduct the examination for the simple purpose of eliciting these
facts for the judge to consider.
20. Manner and Style of Conducting Cross-
examination :
There
are as many styles of cross-examination as there are trial lawyers. Some
attorneys can pull off an aggressive, theatrical style. Some can use a
strategically raised voice to dramatically emphasize a central point. Others
are more effective with an understated, intellectual approach that methodically
scores admissions from the witness. Some lawyers adopt a folksy, quizzical
tone, or use humor, to demonstrate that the witness’ story just does not make
sense.
Any
of these approaches can be equally effective; the key is to find the style that
is authentically you.
Junior
lawyers should watch more seasoned practitioners for ideas, and try styles on
for size in the safer environment of a trial training program or deposition, to
see what works for them.
Great
cross-examination is an art developed over years of experience. Finding a
winning balance of the right questions and presentation style depends on the
unique facts of the case, the witness in front of you, the limits set by the
judge, and myriad other factors.
21. Start Strong and
Finish on a High Note :
A trial attorney should plan a cross-examination in such a way to ensure that the last question elicits a significant response. Once you have made the final significant point, end the examination. Too many trial attorneys make the mistake of trying to win the case with one extra question – trying to hit a homerun, so to speak – and the examination ends up ruined by an unexpected or unfavorable response to the last question the attorney asks. Make your last big point, and sit down. Remember, if you reach your predetermined goals for the cross-examination, you have already hit a homerun.
Thus
cross-examination is an invaluable tool in the hands of a prepared trial
attorney in that it can be used not only to bolster his or her own case or
defense, but also to demonstrate the weaknesses of the opposition’s case. While
no substitute exists for the experience that comes from conducting numerous
cross-examinations, the above guidelines can be a useful tool for those trial
attorneys trying to develop their own style and techniques, or trying to fine
tune those techniques developed through past experiences.
These
guidelines, however, are by no means intended as an exhaustive authority on the
subject of cross-examination. Numerous authorities are available to guide a
trial attorney in developing styles and techniques for a proper and effective
cross-examination. For those interested in learning more about
cross-examination, the following books and articles represent a small sample of
the available materials.
1.
Wellman, Francis L., The Art of Cross Examination (4th Ed. 1997).
2.
Kestler, Jeffrey L., Questioning Techniques and Tactics (2nd Ed 1992).
3.
Brodsky, Stanley L., Coping With Cross-Examination and Other Pathways to
Effective
Testimony (1st Ed. 2004).
4.
Babitsky, Steven & Mangraviti, James J., Jr., How to Excel During
Cross-Examination: Techniques for Experts That Work (1997).
5.
Haydock, Roger & Sonsteng, John, Examining Witnesses: Direct, Cross, and
Expert
Examinations (1994).
6.
Mauet, Thomas A., Trial Techniques (6th Ed. 2002).
References :
1.
Wellman, Francis L., The Art of Cross Examination
2.
http://apps.americanbar.org/labor/lel-aba-annual/papers/2005/025.pdf
3.
http://www.law.indiana.edu/instruction/tanford/web/reference/07cross.pdf
