In the Anglo American legal system, cross examination is the principal means of undermining the credibility of a witness whose testimony is false or inaccurate. Hon. John Paul Stevens, dissenting in U.S. v Salerno, 505 U.S. 317 (1992)If there is one skill at which the trial lawyer must excel, it’s cross examination. A trial lawyer who can’t cross has no bite. A trial lawyer with no bite has no chance.
Though it requires quick thinking, don’t panic; cross isn’t challenging if you keep a few general principles in mind. I lay them out below. Of course, there are circumstances when you might want to deviate or be less strict with these rules but, on the whole, following these guidelines will make you a formidable opponent as you duel with your witnesses.
Do No Harm (To your own case. It’s okay to harm your opponent’s case.)
Don’t feel like you must cross examine every witness. Keep in mind that, as with objections, cross examining a witness elevates the importance of that witness. Thus, before engaging in cross examination, ask yourself whether the witness’ direct examination testimony hurt you. If not, don’t cross. Simply standing up and saying “no questions” sends a clear message to the jury that you’re not bothered by anything that witness said.
In some circumstances, you should consider not cross examining even when a witness’s testimony does hurt you – if you don’t have any reasonable expectation of scoring points with that witness.
Let’s say, for example, that the prosecution has DNA evidence against your client. Before trial, you submitted the prosecution’s evidence to your own expert, and she reported back that their evidence is solid. Now, the trial has arrived, and the prosecution has placed your client’s DNA on the victim.
Clearly, this evidence hurts you. But, if you’ve developed a theory that accounts for this evidence, you may not need to cross examine. Perhaps your defense is that the DNA didn’t get there in the manner that the prosecution claims that it did, or that it got there at a different time. Saying “no questions” downplays the importance of this evidence. It also gets that witness off the stand.
There simply is no benefit to crossing a witness, even a witness who has delivered harmful evidence, if you can’t challenge them with anything. Instead, ask no questions and send the message that you know about this testimony, and you accept it as consistent with your theory of innocence.
[Needless to say, if you don’t question the DNA expert, your defense cannot be that the expert’s testimony is wrong. In other words, you must cross witnesses whose testimony contradicts your theory.]Don’t Ask Questions
You can lead on cross examination. Do so. As Roy Black once wrote, “Think of cross-examination as a series of statements by the lawyer, only occasionally interrupted by a yes from the witness.”
What does it mean to “lead?” A leading question is that which contains the information that you want the witness to affirm. So, instead of asking “where did you go after the party?,” state, “you went to Jeanine’s after the party.”
I have two more things to say about leading questions before I move on. First, a minority of judges will not let you ask questions in purely statement form, as demonstrated above. No problem. Simply add an interrogatory at the end of the statement, like this: “You went to Jeanine’s after the party, didn’t you?” Ask a few questions in this manner and then try to revert back to the statement form, without the “didn’t you?,” “isn’t that right?,” that you tack on to the end. By then, most judges will realize that insisting that your questions contain an interrogative is a tedious restriction.
The second thing about leading questions – and I know that this is anathema to most trial attorneys – is that I believe that it is acceptable to ask non-leading questions on cross examination under certain circumstances, for effect.
Generally, you do not want to ask open questions because such questions surrender your power to the witness, and allow them to explain themselves. You don’t want that. Really, you are the witness on cross examination. As Roy Black says, the witness is really there to affirm what you are saying.
However, when you absolutely know what the witness will say, or when it doesn’t matter, asking an open-ended question can be a powerfully persuasive moment. This is because, even though it’s good technique, jurors innately know that a witness who is only given the chance to answer leading questions isn’t really being given a chance to fully explain themselves. For this reason, I believe that jurors tend to credit evidence elicited on direct examination more than what is obtained on cross.
But, if you can safely set up a moment of openness within your cross, you have the opportunity to create a moment in the trial that the jurors will remember into their deliberations. Here’s an example:
I recently had a conspiracy trial in which the prosecution claimed that my client was at the center of a drug distribution ring. The problem for the prosecution though, was that my client never appeared at any of the drug deals, nor was his name mentioned in any phone call. Thus, after a direct examination in which a police officer testified as to everything he saw happen at a drug deal outside of a McDonald’s, I was able to ask: “Officer, at what time did Lawrence arrive at the McDonald’s?” This was not a leading question, but it was safe one because I knew the answer: Lawrence never arrived there.
[What, you may ask, should you do, if the officer says something that appears in no report, like he arrived at 10:00? This is not a problem, you simply have to impeach by omission. I would also note that this possibility is not avoided by asking a leading question since, if you say,”Lawrence never arrived at that location, did he?”, the officer can simply say, “Yes he did. He arrived at 10:00.”]Add Only One Fact Per Question
You only cross examine hostile witnesses, meaning that, on cross examination, you’re trying to get people to say things that they don’t want to say or admit things that they don’t want to admit. You’re going to have more success at doing this by keeping them off-balance, and the best way to do that is to keep hitting them, rapid-fire, with questions. Therefore, use short questions, get your “Yes,” and then hit them with another question. [For an example of what this looks like, click here for a sample cross examination.]
Another benefit of just adding one fact per question is that it prevents the witnesses from pretending they don’t understand the question, or from trying to answer something that was not exactly what was asked.
Finally, and this relates to keeping the witness off-balance, the longer your question, the more time you give the witness to compose their response. If you keep things at a fast pace, the witness will have less time to try and outsmart you. Just be sure you don’t go so fast that the jury can’t understand what you’re asking.
Organize Your Cross Into Chapters
Your cross examination must be organized. The best way to do this is to organize your examination into “chapters,” a technique put forth by Pozner and Dodd, whose “Killer Cross” seminar I recommend. [Note that organizing your questions into chapters works for direct examination as well.]
The idea behind chapters is that, for any witness, there are probably several different topics that you want to cover. For a police officer, for example, you may want to cross examine on the circumstances behind your client’s arrest, as well as his interrogation. Each of these can be further subdivided. You may want to set the scene for the arrest, before establishing who was present for it etc. Dividing your overall examination into these smaller segments keeps you from forgetting to cross examine on key points, while at the same time presenting the testimony in a logical manner for the jury. It also allows you to exploit the principles of primacy and recency, which state that the things that jurors remember the most are what is presented to them first and last.
By approaching your cross as a number of mini-examinations, instead of as one large one, you have lots of opportunities to introduce new topics, signaling to the jury that their attention should rekindled.
What does a chapter look like?
The first and most important rule is to make sure that each chapter fits on one page. If you have more questions than what will fit on a page, divide your questions into two chapters.
My chapter pages typically look like this:
Officer Smith: James Was in Custody
The door was locked
43 B
The room had no windows.
42 T
Etc. [End of Chapter 1]
Officer Smith: The Confession Was Involuntary
James told you he was hungry
58 M
James hadn’t slept in three days.
62 B
Etc. [End of Chapter 2]
Note that, at the top of the page, in bold, I put the name of the Witness and the point that I’m trying to make with that chapter. Beneath that, I have specific questions, followed by the pages in the discovery that has the information that I’m trying to establish, should I need to impeach with a prior inconsistent statement. I use T, M, and B to indicate whether the specific information is at the top, middle, or bottom of that page. I also highlight the specific sentence I’m referring to, so that I can easily find it.
Organizing your cross examination is the most important tip that I can give you. Structuring not only your cross, but your entire approach to the trial, will give your arguments a force that simply cannot be obtained from a defense that is unplanned and unfocused. The purpose of cross examination is to get out those key points that you need to have in order to make your dream closing argument. By strategizing your cross and dividing it into chapters, you ensure that, when you sit down after your examination, you have the ammunition you need to close persuasively.
Good hunting!