The Rules Of Cross-Examination

THE COMMANDMENTS OF CROSS-EXAMINATION

The questioning of a witness or party during a trial, hearing, or deposition by the party opposing the one who asked the person to testify in order to evaluate the truth of that person’s testimony, to develop the testimony further, or to accomplish any other objective is what cross examination means.

Much basic as it might appear, interrogation is a ground-breaking part of a preliminary procedure for it can make or devastate a man's case. Each legal counselor is in this way anticipated that would be extremely familiar and familiar with the tenets and methods of interrogation for a superior support .

WHAT IS THE MAIN PURPOSE FOR CROSS EXAMINATION?

The main purposes of cross-examination are to elicit favorable facts from the witness, or to impeach the credibility of the testifying witness to lessen the weight of unfavorable testimony. Cross-examination frequently produces critical evidence in trials, especially if a witness contradicts previous testimony.

Cross-examination is generally limited to questioning only on matters that were raised during direct examination.

Can a judge cross examine a witness?

The judge is permitted to ask a question to a witness even though he is supposed to be the judge, not an advocate for either the plaintiff or the defendant. However, the judge must also  permit the advocate to further cross-examine this witness or follow up on the answers the witness gave to the judge’s questions.

The 13 Commandments

A. 1 — When in doubt, DON’T!

1. Some lawyers think there’s a professional duty to cross-examine every witness.

2. There isn’t. There is, however, a duty not to screw up the case — and that’s what you’ll do if you cross-examine a witness when you don’t have to!

B. 2 — K.I.S.S. is the rule — Keep It Short and Simple.

1. Cross-exam is a commando raid, not the invasion of Normandy

2. Don’t overdo it… limit your cross to only what is necessary to bring out the point you want to make.

3. Keep in mind the limited amount of information that the judge or jury can absorb

C. 3 — Use the English language, NOT legalese, in short questions.

1. “Did you sign a codicil to that will?” vs. “Did you sign a written change…?”

2. “How did you drive your car?” NOT “What did you then do in respect to the operation and control of your motor vehicle?”

D. 4 Always ask leading questions.

1. On direct, no leading questions (with lots of exceptions)

2. On cross, the best advocates ask only leading questions

a) What is a leading question? One that suggests the answer, puts words in the mouth of the witness.

b) You tell the whole story; the witness only confirms the accuracy of it.

3. Never ask: “Why did you do that?” or “What happened then?” Exercise control over the witness, testify for him or her.

4. Never let the witness explain his or her answer.

E. 5 — Ask only questions to which you know the answer.

1. This is not a pretrial interview or a deposition

2. You are not an investigator at the trial — you’re trying to get information that you can use in summation: either substantive facts to argue or else points about a witness’ credibility

3. If there are damaging points that exist, they’ll come out when you’re fishing for answers

4. Remember the 3S Rule — cross-exam is a Search for Support for Summation. Elicit information on cross to support your final argument.

5. Exceptions:

a) If you don’t care what the answer is…

b) “Escalating” or “closing doors”

F. 6 — Never let the witness repeat his direct testimony.

1. Rule for the jury: If they hear it once, it may be true. If they hear it twice, it’s probably true. If they hear it three or more times, it’s unquestionably true!

2. Exceptions–

a) To “set up” the witness (e.g., prior inconsistent statement)

b) When you really know what you’re doing!

3. When it’s “unclear,” don’t clarify!

G. 7 — Listen to the answer given to  you .

1. Over and over again, a good lawyer gets a great answer on cross-examination — and then does nothing with it: doesn’t pursue the witness, doesn’t mention it in summation. Why?

2. He or she didn’t listen to the answer… perhaps didn’t even hear it!!

3. Reason: the turmoil of trial

H. 8 — Don’t quarrel with the witness.

1. This is not a rule of evidence, but it’s certainly a “commandment” for all good advocates

2. Don’t give in to the temptation to “beat up the witness” — more than likely, you’ll only generate sympathy for him or her

3. If the answer is contrary to the rules of the universe, don’t argue about it; save it for summation.

4. Don’t signal anything to the witness or he’ll wiggle out of his answer

I.   Don’t ask one too many questions.

1. This is not in the law of evidence… but it’s certainly part of “the lore of the courtroom.”

2. When you’ve made your point, stop and indicate to the judge that you’ve finished.

3. How will you know when you’ve asked “one too many”? Answer: you’ll know it as soon as you ask it!

J. 10 — Save it for summation.

1. You’ll never have the witness arguing with you when it’s time for final argument.

2. He or she cannot explain or clarify the answer given.

3. You can’t be contradicted by the witness

K. 11 – Do only one “fact” per question.

1. Avoid compound questions: “Did you drive down Romerstrasse and hit two pedestrians?”

2. Using only one fact per question makes it hard for the witness to be evasive. If the witness is asked the above question, he can always give a denial and then you have to go back and break it down into its individual components to confront him with each.

L. 12 – Avoid “value” words or conclusory terms.

1. Don’t ask, “Isn’t it true that you rarely return to the barracks before 2300 hours?” The witness, having seen the Clinton impeachment hearings on TV, will probably respond, “What do you mean by ‘rarely’?”

2. Do you really want to debate this with the witness? Do you think the jury cares? Or can even stay awake while you do?\

3. Be specific – “On only one occasion during the week of June 1 did you return to the barracks before 2300 hours, right?” “And the week before, the same thing occurred, right? – that’s the way to ask this question properly.

4. Also remember that juries like to reach a conclusion themselves – so give them enough facts to let them do just that. They don’t like to be told what to conclude.

13 – Work from the specific to the general.

1. Start with specific questions, then work toward a general conclusion.

2. Don’t say, “Isn’t it true that you dislike SSG Rivera?” Again, you have a wonderful opportunity for an argument here, and that’s not what cross-exam is all about.

3. Instead, try asking about specific instances of conduct: “Didn’t you spill ink on his desk while he was at PT?” “Isn’t it a fact that you and SGT Smith stole his room key last month?” Then let the panel conclude that there was bad blood between them – based on the specific instances you’ve described.

4. At this point, remember the 10th Commandment. Save it for summation. But if you feel a little braver at this point and decide to violate it, you can still ask, “Isn’t it true that you dislike SSG Rivera?” Because, with affirmative answers to the above two specific questions, you will probably get an admission from the witness. And if you still get a denial for this conclusory question, it will show the jury that the witness really is a liar.

Masterful cross examination is a mystery to many and clearly more art than science. Sometimes it involves “white gloves” and other times virtually a sledge hammer. It seems to come to some so easily and instinctively. Most labor and angst over it. The effect and significance of many cross examinations seem to more readily fall into the ends of the spectrum as either very helpful or unsuccessful rather than to be distributed along a bell curve. And, many times the true significance of cross examination are revealed only in the closing argument.

The topic of cross examination is obviously “book length” material and probably more legal treatises have been written on it than any other part of the trial process. A column of this length can but scratch the surface. The goals of this column are to give the reader first a basic global view of cross examination and then five easy “rules” to follow for successful cross examination.

THE FOUR “Ps” OF CROSS EXAMINATION

Cross includes obviously at its center the substance of the observer’s data. Generally that substance more supports the rival or else the observer wouldn’t have been called by restricting insight. On the off chance that there is no data the observer brings to the table that is useful to your side then the pathway is clear: slice and consume, yet in a guileful mold. On the off chance that Christmas has come early and the observer has appeared to be unlikeable whether because of presumption, double dealing or any of the seven savage sins then the pathway is considerably more clear: assault, loot and consume in any design. Generally anyway the activity isn’t so natural.

Not so easy because the witness may have some information helpful to your case. Now we must find the “sweet spot” of making the jury believe what the witness is helpful on but disbelieve what they are not helpful on. That, is art.

That art involves not so much the substance of the testimony but rather the Four Ps of cross examination: Psychology, Presentation, Perception and Persona. Most attorneys view cross as going over the witness’ deposition and statements and scripting Qs and As and impeaching if the witness strays from the substantive points. The true art of cross examination involves playing at a different level, playing “above the rim” if you will. What you can do with a witness on cross depends greatly on your understanding of the psychology of the witness. Whether and how to use the carrot or the stick or a combination thereof. Each witness has a different psychological makeup and will react differently.

That psychological analysis is the crucial first step in deciding how the cross will be built. Second, your presentation and the jury’s perception of you, the witness’ reaction and the witness is many times way more important than the actual words and substance of the witness’ answer. The witness may have said “no” but the jurors perceived “it couldn’t have been anything else but yes”. And perhaps it isn’t a fourth P but maybe just another way of saying Perception and Presentation but your Persona and the Persona of the witness can “testify” as much or more so than substance.

Were you the trusted guide or a bully on cross exam? Or as an opponent said to my partner in a recent three month trial when asking about me “Will the pit bull be on or off leash today?”That leads me to the last point on this brief discussion of the foundation of cross, the ancillary effects of the Four Ps. When that opponent was preparing witnesses each night he had to think of what he was going to tell them to expect on cross: the leashed or unleashed pit bull. If he told them to be ready for the unleashed version and then they got Mr. Nice Guy they could have their pocket picked without even knowing it. But vice versa and they wouldn’t be ready for the battle.

If he told them you don’t know which one is going to show up then they will be on edge. The point is that your style, persona and presentation have the ancillary of effect of getting inside your opponent’s head and the head of the upcoming witnesses. It is part of the psychological battle as well as the substantive battle.

THE FIVE BASIC RULES OF CROSS EXAMINATION.

There are many more rules and nuances and many more tactics and techniques that need to be studied, learned and practiced on this topic. However, the purpose of this column is to give you five simple rules to remember as a fall back structure when doing a cross.

Eye It Up. This is defining the goal of the cross examination. Are you going to use the witness or destroy the witness? Are you going to destroy the substance of the testimony or the credibility of the witness? Are you going to parse out the substance that is helpful and just try to neutralize or downplay the unhelpful substance? There is no “right” answer for every witness. But, there has to be a goal for the cross of every witness. The goal will help you decide on the right approach to that witness.

Set It Up. Freeze the witness . Get the witness committed to what they are saying in such a way that you then can destroy it. Get them to commit to your characterization of their substance. There must be no doubt as to what their position is.

Saw It Off . This is where you make your point. This is where you impeach. This is the fun part. This is what we live for. You know how to do this. You dream about it. As Nike says “Just do it”. But, the job isn’t done yet.

Hold It Up. Now you have to show the jury what you just did. Every single juror has to know what just happened. You can’t take the chance that they “got it” and you can’t take the chance that they all got it. But, you’re not done yet.

Tie It Up. Make the point of how it fits into the Big Picture. You’re goal is not just to win a round of cross examination. The goal is to win the whole contest, to secure a verdict in favor of your client. The jury needs to know how what you’ve just done on this cross exam of this witness fits into the big picture, the entire case and what they will have to do in deliberations. Unless the judge has totally lost his/her mind and allows you to give a mini-closing argument at the end of your cross this can be a bit difficult. Remember this is art not science so while not always possible look for a way to tie up what you just created with your overall storyline of the case and of the trial.