WHY CROSS EXAMINE?

Center for Criminal Justice Advocacy

* Don't do anything will give the court grounds to think you are wasting their time.

Why cross-examine a witness? My view is that it's done with the principal purpose of giving you a basis for the arguments you will make in summation at the end of the case.

There are at least two different types of cross-examination:

• (1) Supportive (Concession Based) Cross-Examination: This type of cross is employed when you want to ask questions and get answers that support and advance your case. You use cross to obtain favorable information, e.g., admissions, fill-in-the-gaps in the story facts, etc., from the witness. Think about it. If you can develop favorable evidence from the opposition's witness, you can then argue, "Their own witness said (insert the testimony favorable to your position)."  It adds credibility to your evidence if it comes from an opposing witness. If you are going to rely on the evidence from an opposition witness, it may not make sense to attack the credibility of that witness. Occasionally, the testimony on direct may be so helpful to your theory of the case that you simply have the witness repeat it on cross and pass the witness. In most instances, the favorable evidence that you will accrue from opposition witnesses will come in small increments

• (2) Discrediting Cross-Examination: A discrediting cross-examination occurs when you attempt to discredit the believability of a witness' factual testimony by showing that it doesn't jibe with common sense and/or with what others say.

 

MODEL APPROACH TO CROSS

You have the power to be the witness during your cross-examination. This is one of several times during the trial when you get to testify. Since you will be in the  spotlight, you want to appear trustworthy, credible, competent, skillful, honorable, and knowledgeable about the case. In short, you want to look good!

You typically cross to tell the rest of the story in supportive cross and to cast doubt on the witness' credibility in a discrediting cross. In both instances, you typically leverage the witness into agreeing with what you say. That means you are generally looking for "yes" answers (concessions) to your leading questions. 

-  You have to spend some time mastering  the unusual technique of putting words in a witness' mouth by leading questions. Try it in your daily life with a friend who knows what you are doing. Of course, effective leading requires mastery of the facts about which you will question the witness.

-  You are generally not trying to clear anything up or develop new information with your cross, but in some instances you may be.
-   With much of your cross you want to tell certain aspects of your side of the story and have the witness agree with you or concede the accuracy of your points; however, you do this without getting into an argument with the witness you are crossing. Recall the old adage - don't argue with a fool, the court may not be able to tell the difference.

-   You cross-examine for the purpose of developing useful material for your argument. This means you cross with a predesigned purpose, covering what you need to cover, sometimes more than one point,  to provide content or the matrix for your summation. Naturally, you have to know where you are going so you'll know when you get there. This means you have to prepare your cross in advance! 

-   Since a single cross may occasionally be both constructive (supportive) as well as destructive, you typically seek helpful concessions from the witness before you initiate an attack. The opposition's witness will normally be more forthcoming in conceding facts, particularly those that are beyond dispute, before you cross swords.

PREPARING YOUR CROSS

+ Here is a one-paragraph thumbnail summary of what every experienced cross-examiner would agree are the very basic rules of form:

• 1. Plan your attack, determining what your purpose is and centering it on the court arguments that you expect to make based on the cross.

• 2. Try to predict which witnesses will be called by the opposition and and anticipate what questions your opponent will ask each witness on direct examination. [It's easier to prepare than to predict, but the latter is antecedent to the former.] 

• 3. Decide if your cross will be supportive, concession-based and/or destructive, discrediting in nature, and, if both, decide which will come first. [Constructive, concession-based cross should typically go before destructive, discrediting cross; constructive cross typically first seeks favorable concessions from the witness of facts that are beyond dispute; constructive cross would utilize the opposition's witness to authenticate and establish the predicate for introduction of the cross-examiner's evidence.

• 4. Consider what limitations the rules of evidence and procedure place on the scope and nature of your questions. 

• 5. Determine whether some potential legitimate cross would blunt the force of other potential legitimate cross. Remember, on cross you get to pick your fights. You do not have to respond to everything that was said on direct. Your purpose with destructive cross is to neutralize otherwise harmful testimony and to cast doubt upon the credibility of the testifier.

• 6. Consider whether some available cross would be viewed as nit-picking, quibbling, petty, and or stale. [Here the key to me would be whether the available cross would support my argument.]

• 7. Craft your questions. Craft the predicate questions. Craft the other questions with emphasis on those answers that will support the argument you expect to make. Key questions should be phrased to prevent the witness from wiggling off the hook. Each key questions in a lawyer controlled cross-examination should be short, leading, ask about only one new fact per inquiry, and be posed with a rising inflection at the end of the question to ensure that it cannot  be interpreted as a declarative statement.

• 8. Cross-examination questions should be planned and organized in units (segments/blocks) by subject matter rather than in the chronological order often used with direct examination.

• 9. Questioning within each specific subject unit should be from general to specific, i.e., funneling.

• 10. The cross-examiner should make a dedicated effort to be aware of the relative safety or risk of posing each question. Avoid kamikaze cross. 

+ Think about the sequencing of your subject units. Don't start your cross coincident to the same subject that the direct ended upon. The witness' brain will be geared and ready on that subject. Pick a different subject, always a pretty strong one, e.g., a concession, so the witness' thinking will be starting in parking gear. Think about the sequencing of questions within each subject unit. As one means of inquiring about details on cross, you need to master the technique of pinning the witness down by funneling your questions. The so-called T-funnel form of question, seeks first to clarify the area of inquiry with open-ended questions before focusing on narrow specifics with leading questions.  

+ You should try to make the cross-examination of each witness interesting and persuasive. Think about the persuasive influence of your cross. If you don't dispute it, don't cross on it. For example, you might be able to cross on a particular subject, but, if you are going to admit the fact because it is beyond dispute, you will lose persuasive power with the court by crossing on it.  

+ Concerning the attitude you will display, know before you begin whether you are going to be friendly, neutral, or hostile to the witness. Certainly, not every cross-examination will be confrontational. You may want to display more than one attitude. If you plan to elicit supportive facts and gain concessions from the witness, you should do this first and do it with a friendly or neutral attitude that will promote witness cooperation. If you begin your cross with a nasty attitude, your witness will display the attitude of a hedgehog at bay, and you will appear disingenuous if you then try to be friendly or neutral.      

+ Decide in advance what point(s) you are going to try to make with your cross of the witness. What do you want to be able to argue to the court about the witness? These are probably the points you want to make.

+ You may need to gather and study certain tangible items for use in cross-examination. For example, if you are cross-examining a confidential informant or a cooperating co-conspirator, you will typically have a game plan that will require you to read documents in preparation for cross  

+ Prepare and block out your topics and anticipated questions as part of your pretrial preparation.  Construct each point you wish to make into a unit or block. Give the point a descriptive name, i.e., the point you will argue to the court. Highlight the key words in each question of the unit, block, or segment. You will then barrage the witness with each of  the separate units of cross. In argument, you will stack all of these units, blocks or segments of your cross onto the witness with the goal of crushing his credibility.  

+ Bring out omissions. Use cross to underscore things that were not done. Notice that when you are asking about things that were not done, you'll often be shooting for a string of "no" answers; whereas, in most other instances you'll be asking questions that call for "yes" answers. 

+ There is a natural temptation to use indirection in your questions when you don't want the witness to know the purpose of your question. Just don't be so foxy that no one, except yourself, ever gets the point.

+ Use headlines and transitional phrases as a communicative tool for the court. Headlines introduce a new topic, e.g., "I want to ask you some questions about (state the topic)." Transitions are the links between different topics. For example, when you move from one related topic to another, you might guide the court by saying to the witness, "Now that we have established where you were on Monday afternoon, I want to ask you what you saw. Do you understand?"

  When you refer to your client on cross, it usually sounds better to use his proper name (surname), e.g., Mr. Butternutt, not by his given name e.g., Ramrod.

+ Leading is the way you direct the court's focus to you rather than the witness. As to form, the most leading form of a leading question is a declarative statement, e..g., "The car was red." asked with an interrogative inflection of voice. When you start a question with a personal pronoun, e.g., you, she, he, or a noun, e.g., "the car",  you usually are on your way to a leading question.  As a general rule, you will seek agreement, a concession, from the witness. Much of your cross-examination can be prepared by forming a set of leading questions that will elicit a string of "yes" answers from the opposition witness.  Planning your core leading questions in advance of trial will help train you to form extemporaneous leading questions when the need arises. There is an old proverb, "Give him enough rope and he will hang himself." Giving the witness rope doesn't work in most cross-examinations. If it did, the cross-examiner would let the witness do all of the talking and then try to trip him up. Instead, structure your cross so that you braid the rope with your leading questions. Hang the opposing witness with it in argument.

+ Ask short questions. It's not easy for a lawyer to ask a short question. You'll have to train yourself by practice. Ask yourself, "How few words can I use for my leading question?"

+ Ask unambiguous questions that are not subject to a vagueness objection.

+ Focus on objective facts or impeaching facts. Don't ask the witness to give opinions or draw conclusions. One way of avoiding questions that invite the witness to quibble with you is to leave out descriptive adverbs and adjectives of you own design. Go with nouns and verbs.   

+ Restrict the scope of your question to only one new fact per inquiry. The purpose of this rule is to avoid giving the witness wiggle room. It will also prevent the court from being confused.  This means that you will break your questions into small parts.

+ As a general rule, you don't want to invite the witness to explain. This means that you generally don't ask the witness "Why?" or "How?" or "Can you explain that?" or "Tell me more."or "Would you describe ...?" These open-ended questions give the witness free rein. If you want to let the opposition's witness wiggle off the hook, just ask him to "explain." The witness' explanation will usually hurt your case. Thus, you ask leading questions. [Caveat: Suppose you are certain that the witness is cornered with no avenue of escape and you want to see him squirm. You might consider a question that forces him to explain a position that is unexplainable, e.g., "Help us understand this. (State the inconsistent or illogical position that the witness has unequivocally committed himself to  and for which he can give no explanation that will seem reasonable to the court.)]

+ If you have a well-planned cross with lots of leading questions, you can get so caught up in testifying for the witness that the witness' "yes" or "no" answer becomes almost inconsequential to you. Controlling the witness' answers by leading on key questions is fine. Just be sure that the court hear the witness' answer affirming your leading version of the story. That way, you have truly put words in the opposition witness' mouth.   

+ Normally, you don't want to repeat what the witness said on direct examination. Repetition reinforces and persuades. However, with a prior inconsistent statement,  you will need to repeat what the witness said on direct examination. When you do so, don't say, "You testified on direct ..."  The word "testify" dignifies the testimony. Instead, say, "When Mr Bloggs was questioning you, you said (or told this court) ..." 

+ Juxtapose or stack units (or blocks or segments) of cross-examination that support one another. By "juxtapose or stacking" I mean, present the units (segments or blocks) of evidence in an interlocking sequence that will synergistically bolster your point or prove your fact. For example, you might want to group several of the witness' prior inconsistent statements together to bolster your argument that the witness is a "person who changes his version of what happened from day to day," Suppose your inferred fact, the conclusion that you want to argue, is that a cop planted an item of evidence; you might consider stacking each of these units of cross-examination, one serially after the other : (1) the cop had a history of planting evidence, (2) the cop was the first person on the scene where the item was found, (3) the cop had a history of lying under oath, (4) the cop had a prejudice against the accused. 

+ Try to end on a climactic and non-objectionable strong point. Your last question will be the most important one. It must be bulletproof. Some lawyers call this their "safe harbor" question. Call it what you like, it must be both invulnerable  to objection and so hermetically sealed that the witness cannot squiggle out of it.

From: Center for Criminal Justice Advocacy