WHY CROSS EXAMINE?
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. In a supportive cross, you won't use your questions to attack, pillage, and plunder the witness. Instead, 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. Seldom will you receive a single blockbuster answer that obliterates or skews the opposition's theory of the case; however, it does happen.
- (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. You may want to use cross to show what the witness does not know or what the witness did not do in investigation. You may want to employ cross to impeach the witness. Evidentiary procedure and rules provide a number of traditional modes of impeachment. For example, a witness may be impeached by proof of inability to understand the nature and obligation of an oath to tell the truth, Rule 601(a) TRE (children and the insane) and Rule 603 TRE; proof of difficulty in perception, Rule 602 TRE; proof of faulty memory, Rule 602 TRE; proof of inability to communicate, Rule 604 TRE; proof of bias, Rule 613(b) TRE; proof of interest in the outcome; proof of motive to falsify; proof of corruption, as when a witness has been offered an incentive, reward, sentencing concession, or bribe for her testimony; proof of the witnesses admissible prior criminal convictions, Rule 609 TRE; proof of the witness' prior inconsistent statement (PIS), Rule 613 (a) TRE. Sometimes you can discredit an opposition witness by something in addition to or other than cross-examination, e.g., where you use another witness to prove the target witness' bad reputation for telling the truth per Rule 608 TRE or where you show under Rule 613(a) TRE through extrinsic evidence, e,g., another witness, that the target witness, who has denied or equivocated making a PIS did in fact make the PIS that the target witness has denied making.
CONTACTING THE WITNESS WHO WON'T TALK TO YOU - Building Your Impeachment
During your pretrial investigation, why should you try to contact an opposing witness who probably won't talk with you? For the impeachment value as you begin your cross. Make it a habit to send a letter of inquiry to each opposition witness. Send the letter by certified mail, return receipt requested. In the letter, appeal to the witness to speak with you or your investigator about what the witness knows about the case. Make clear that the witness may pick a date, time, and place that is convenient to the witness. In the alternative, have your investigator make a phone call to the witness asking the witness to discuss the facts. When the witness doesn't respond or responds negatively you may want to use your cross by showing that the witness is prejudiced against your side of the case and biased in favor of the other side.
- Here's an example of the dialog a cross-examiner might employ to demonstrate the prejudice and/or bias of an opposition witness who has refused to discuss the during the investigative phase : Q: I'm (your name), and I'm here to speak for (name the defendant). Q: Do you recall receiving a letter from me (indicate the date) asking if I might discuss (name the defendant) case with you? Q: And would it be fair to say that you didn't respond to my letter asking if you would discuss what you know about the case with me? or Q: Do you recall an investigator from my office by the name of (state the investigator's name) contacting you by telephone on (state the date) and asking if you would discuss what you know about this case with us? Q: And you told (name the investigator) that you wouldn't discuss the case with him/her, didn't you? Q: So this is the first time that our side has had the opportunity to talk about what you know about the accusation against (name the defendant). Q: By the way, did you talk to the lawyers or investigators for the other side? Q: (If "yes" to the previous question, consider asking some of the following.) When? Where? How long? Who was present? Did you give them a written statement? Did they take notes? Were you subpoenaed to come to court or did you come on your own?
TRIAL DISCOVERY DURING YOUR CROSS (With Emphasis on the Texas Practice)
In Texas criminal cases, advocates have two lethal weapons in your advocacy arsenal that you must learn to employ during cross-examination in criminal cases.
Courtroom Production of Any Writing Used by a Witness to Refresh Memory - The first courtroom discovery weapon is Rule 612 TRE ( FRE 612 is similar.) that allows you, at the outset of your cross, to obtain trial discovery from the witness or the opposing lawyer of any writing used by the witness, either before testifying or while testifying, to refresh the witness' recollection for the purpose of testifying. If you can show that such a writing was used by the witness, this writing must be produced if you request it. If it is not produced, the remedy is any order that the trial judge believes that justice requires, except, that if you are the defense attorney and the prosecution refuses to produce the writing, the required remedy is one striking the testimony of the witness, or if the trial court in its discretion determines that the interests of justice so require, a mistrial. Under Rule 612, you are entitled to discover the writing, examine it, use if for cross-examination and introduce in evidence those parts which relate to the testimony of the witness. If there is a dispute concerning the relevance of certain parts of the writing to the witness' testimony on direct and the trial court rules in camera that certain portions of the writing are not subject to trial discovery, any portion withheld over objection (Make sure you object to the court's refusal to allow the trial discovery of the precluded portion of the writing!) must be preserved for the appellate record.
- Here's an example of the dialog a cross-examiner might employ to gain access to writings used by the witness to refresh memory before testifying: Q: Now, you were involved in this case back on (state the relevant dates)? Q: At any time before you took the stand to testify here today did you read over any written material to refresh your memory about what happened back on (state the prior dates)? [By "any," I mean anything in writing, whether you wrote or someone else wrote it. Do you understand what I mean by the word "any"?]
- Here's an example of the dialog a cross-examiner might employ to gain access to writings used by the witness while testifying : Q: You have some written notes in front of you (in your pocket) right now, don't you? Q: You've referred to those notes just a little while ago while answering questions on direct examination, correct? Q: And are those notes to help you remember while you are testifying? Q: May I see those notes?
Courtroom Production of Statement(s) of Testifying Witness for Use in Cross-Examination - The secondarrow in your courtroom discovery quiver is Texas Rule of Evidence 615 TRE and Federal Rule 26.2 Fed. R. Crim. P. ; see also, the so-called the federal Jencks Act, 28 USC Section 3500, providing for disclosure of prosecution witness statements) that allows each side in a criminal case, at the outset of cross, to have trial discovery from the opposing party of any witness statement(s) with regard to statements that relate to the subject matter concerning which the witness has testified on direct. There can be a claim by the proponent of the witness that certain portions of the statement do not relate to the subject matter of the direct. If so, the trial judge conducts an in camera examination of the statement. Any portion of the witness' statement withheld over objection is included in the appellate record. As the cross-examiner, you are entitled to have a reasonable amount of time to examine the witness statement that is disclosed. If you ask, the court must recess the proceedings to give you reasonable time to examine the witness' statement. A "witness statement " is a written statement made by the witness that is signed or otherwise adopted or approved by the witness or a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or transcription thereof or a statement, however taken or recorded, or a transcription thereof made by the witness to a grand jury. What happens if the other party refuses to deliver the statement to the moving party? The trial court must order the testimony stricken from the record, except, if it is the prosecutor who refuses to comply with the order to deliver the witness statement to the defense, the trial judge must declare a mistrial if required by the interests of justice.
- Here's an example of the dialog a cross-examiner might employ to obtain a copy of the witness' (here a case agent) statement for inspection before proceeding with cross-examination: Q: You were the primary case agent in the investigation of this case. Q: And you certainly made periodic written reports that chronicled and described important things that you did in your investigation, right? Q: May I have a copy of all your written case reports made in connection with your investigation of this case?
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. The others are jury selection (in jurisdictions like Texas where counsel puts questions during voir dire), opening statement, and final argument. Since you will be in the jurors' 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 you 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. You would not use this method of discourse in polite company, unless you were questioning a child or a drunken significant other who arrived home at 4 a.m. 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. Remember that Rule 611(b) TRE allows "wide open cross-examination." This means you may cross-examine a witness on any matter relevant to any issue in the case, including credibility. [Note: Cross in some jurisdictions, e.g., federal court, is limited to the the scope of direct and to matters affecting credibility. See Rule 611 FRE.]
- 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 jury may not be able to tell the difference.
- You cross-examine for the purpose of developing useful material for your jury 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. (More on this below in "Preparing Your Cross.")
PREPARING YOUR CROSS
+ Ten Basic Rules of Cross -Examination - 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 jury arguments (1) that you expect to make based on the cross-examination. To put cross of witnesses in the metaphoric language of a fisherman: You hook 'em and land 'em in cross and clean 'em and fry 'em in jury argument.
- 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 jury argument.]
- 7. Craft your questions. Learn the legal foundation for each relevant mode of impeachment. Craft the predicate questions. Craft the other questions with emphasis on those answers that will support the jury 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, often used in pretrial interviewing of witnesses and clients, seeks first to clarify the area of inquiry for the jury with open-ended questions before focusing on narrow specifics with leading questions.
+ To gain the jury's attention, 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 jury 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 jury about the witness? These re 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. In the former case of the so-called confidential government informant, you may want to show that the control agent, e.g., FBI, DEA, did not keep the informant on a tight leash as required by written department guidelines or regulations. You will want to obtain copies of the agency's policy on "informants." See Pretrial Preparation for information regarding obtaining federal law enforcement agency operational manuals. In the latter case of the cooperating co-conspirator witness, you may want to show the concessions that the prosecutor has agreed to confer on the witness if the witness performs as desired. You will want to obtain a copy of any written or recorded agreement(s) between the prosecution, the cooperating witness, and the witness' lawyer.
+ 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 jury. 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. For example, defenders may want to highlight the deficiencies of the crime scene investigation. It's easy to find books that describe proper crime scene investigations and scientific tests that could or should have been done and weren't. 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 jury. 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 jury 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?" If the topics are unrelated, you can indicate it by saying, "Switching gears, I want to move from (indicate the topic) to (indicate the topic). Are you with me?"
+ Defenders should avoid using the phrase "my client" or "the accused" when cross-examining. Never, never, never refer to your client as "my defendant." 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 jury'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. We are paid to jabber. 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 jury 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 jury.)]
+ 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. After all, don't the experts say that in cross the spotlight should be on the cross-examiner rather than the witness. Controlling the witness' answers by leading on key questions is fine. Just be sure that the jurors 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, on occasion, e.g., during the commitment stage of impeachment with a prior inconsistent statement, you will need to repeat what the witness said on direct examination. When you do so, don't say, "Youtestified on direct ..." The word "testify" dignifies the testimony. Instead, say, "When the prosecutor was questioning you, you said (or told this jury) ..."
+ 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," "stitchmouth," "good example of what the American Indians called a man who speaks with a forked tongue," or "the type of unreliable witness who talks out of both sides of his mouth." Here's an example of stacking. 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.
TIPS & TECHNIQUES FOR GETTING AND KEEPING CONTROL OF THE OPPOSING WITNESS
+ Don't do anything will give the jury grounds to think you are wasting their time.This means that you should not play little lawyer games in front of the jury. For example, when you impeach with a prior inconsistent statement, make sure that it is not on a subject that is so collateral that the jurors will view it as quibbling. Similarly you don't want to appear deceitful. This is a risk that you run when you play lawyer games or act egocentrically or arrogantly in front of the jurors. If you look phoney or too cutesy, you are headed downhill out of control on a slippery slope.
+ The See-Saw Principle of Cross-Examination - I go up, the witness goes down! Aristotle tells us that in persuasive discourse the most important thing we have to sell is ourselves. (1) Cross-examination, in the sense that it provides you with an opportunity to testify through the witness, presents you with the opportunity to sell yourself and your case. One of the nation's best known federal public defenders (a gentleman known as Terence MacCarthy, now retired after several decades as a federal PD in Chicago) used to travel the country making a speech about how to conduct a discrediting cross-examination. The title of MacCarthy's speech was "Look Good Cross-Examination." He didn't call it the see-saw principle, but his thesis was: When the witness looks bad, you look good! He went so far as saying, "If you have a choice between losing control of a witness or looking good, 'looking good' is always best, even if it is at the expense of losing some control." [Note: At a recent gathering of lawyers in California, I once again heard MacCarthy deliver his famed speech; now a greying oldster, more loquacious and more egocentric (Note: It's real hard for criminal defense lawyers to be modest. It gets worse with age and notoriety. Percy Foreman, the greatest trial advocate of his century, used to say he didn't have anything to be modest about.) than I remembered, but with the same pluck, MacCarthy can still keep an audience of young lawyers spellbound for an hour-and-a-half.] In 2008, while convalescing from an injury, he wrote a book detailing his approach to cross. It carries forward his basic advice that you want to appear successful with the witness in the eyes of the jury. The 200 pp. result is titled MacCarthy on Cross-Examination, ISBN-13:9781590318867, a pricey $90 at Amazon or Barnes & Noble. [Note: As a further aside, MacCarthy also has a set of tapes available through Stetson law school in which he waxes eloquently on numerous topics, including voir dire questioning of jurors - though he admittedly conducted only two such voir dires in his long career as an advocate.] In the same vein as MacCarthy, do not unduly embarrass a witness if it makes you look bad. So, when can you bully a witness? Remember the film Gladiator? The emperor Commodus (played by Joaquin Phoenix in the movie) was always guided in his decision to go "thumbs up" or "thumbs down" on the fallen contestant based entirely on the audience's reaction. In effect, the emperor only administered the coup de grace if the "crowd was on his side." Follow the Gladiator Rule. Bully (maybe even gut and field dress) the opposition's witness only when his credibility has been steadily weakened by your questions and you are reasonably confident that the jury would give you "thumbs down" permission to dispatch the witness. This requirement of getting the jury on your side in a destructive cross is even more applicable to lawyers because we aren't really the emperor. The jurors are!
+ Ditch the pencil, pen, or laser pointer as a wand. Having an object in hand is a distracting impediment to communication. Have nothing in your hand when you are cross-examining, unless you need it. During cross-examination, if you must write, consider writing the witness' key answers, e.g., concessions or prior inconsistent statements, along with the date and time of the answer, Do your writing with a magic marker on a flip chart located near the point where you are positioned for questioning [Caution: Don't do this with chalk on a chalkboard or dry erase marker on a whiteboard. The writing probably won't survive for argument. Your opponent will figure out a way to erase it, e.g., to make room for her writing.] If you use a flip chart and a permanent marker to record those key answers, you'll have something graphic that you can use during your jury argument when you remind the jurors of the witness' key answers. Just make sure that what you write is exactly what the witness said. Don't paraphrase the witness' answer; if you do, the other side will have a good objection. If you write the date and time of the answer bedside or directly underneath the quoted answer, this will help you in argument to remind the jurors of the witness' earlier answer, e.g., "You remember back (state the recorded date and/or time) when I asked (name the witness) (indicate the question you asked) and (name the witness) said (look at the recorded flip chart answer and read the witness' answer word-for-word)."
+ Don't automatically start your cross with a stock polite introduction. Many lawyers start every cross-examination greeting the witness with "Good morning, Mr. Witness. My name is so-and-so, and I'd like to ask you a few questions. I don't believe we've had the pleasure of meeting before, have we?" This may be okay in some instances, e.g., when you plan to conduct a concession-based cross, but if you are going to argue at the end of the case that the witness is a slack-jawed, bed-wetting, nose-picking, back-sliding, four-flushing chamber pot, it appears somewhat disingenuous to begin with a cloying (excessively sweet) salutation. With this latter type witness you almost want to begin by asking, "Sir, are your brains as swinish as your manners?"
+ Witness control is the linchpin of your cross-examination, particularly when you are crossing to discredit. For example, see the advice below on how to deal with the witness who resists answering your question.
+ Keep the cross brisk. As a general rule you should cut the time between questions, so the witness won't have time to put on his thinking cap. You don't want to give the hostile witness time to think about his last answer and where you are going with your next question. Of course, when you get a desired answer, the zinger you want to mention in argument, don't hesitate to use a five count moment of silence (the pregnant pause as an emotional comma) as you look over at the jurors. Silence and the jury look are the body language equivalent of "Folks, did you hear what this witness just said? It's important!"
+ Stretch out the facts that discredit the opposing witness. This is particularly true when you are impeaching a witness with a prior inconsistent statement. For example, suppose you want to you confront a witness with prior inconsistencies A, B, and C. Rather than asking a single question, e.g., "Did you previously go down to the police station on July 4, last year, and give Officer Jones a written statement in which you said A, B, and C?" break it down into at least three questions each covering one inconsistent statement. There are many impeaching situations where you can more bang from the impeachment by stretching it out into its constituent elements. For example, a defender might stretch out the fact that the complainant in a rape case failed to promptly report the alleged attack.
+ How do you deal with an opponent and/or judge who doesn't view the highly leading declarative question as a true question? If you use a declarative statement with a question mark inflection on it, you should have no problem. But, suppose your opponent objects "That's not a question, Your Honor. We object to counsel testifying." and the judge sustains the objection. How do you deal with this situation? Simple. Just reask the same declarative question, and add the word "right" to the end of it. By adding the word "right," you clearly make it a question. You get the benefit of asking your question twice, and you may want to verbally underline the word "right" and glance over at the objecting lawyer to show the pettiness and frivolity of the objection. If you really want to rub your opponents face in it, you might even ask to have the original question read back before repeating it with "right" tag; that way, the jury hears it three times.
+ Give the jury a heads-up that you are going to be crossing the witness about a different topic. Headline with topic sentences when you switch subjects, e.g., "Let's turn from what you wrote in your witness statement to the subject of your prior criminal record."
+ Avoid adding tags and introductions to your questions. They weaken your point. (If you chose to tag your leading questions, use phrases such as "fair to say," "right," "correct," and "we can agree that" as tags of choice.)
+ If you want the opposing witness to answer "yes" to your question, try nodding your head at him immediately after posing the question.
+ Don't ask the witness for permission. When you say, "Let me ask you this," you are asking the witness for permission. Eliminate that phrase from your vocabulary.
+ As a general rule, don't refer to the adverse witness by given name or nickname.
+ Learn to "loop" favorable concessions from the witness into your subsequent questions. How do you loop? You simply incorporate the favorable factual concession into into a subsequent question. How many times should you loop a favorable concession. If it's important, try looping it three times.
+ If some answers the witness gave on direct helped you, consider have the witness repeat the favorable answers on cross.
+ Don't ask the court for help with the evasive witness, e.g., the one who won't give you "yes"or "no" answers or the one who answers in a non-responsive manner. If you ask the judge for help, she's likely to deny the request or even say, "The witness seems to the Court to be doing his best to give you straight answers, counsel." Depend on yourself when you have an unresponsive witness. Learn how to get your answer and/or make the witness look evasive to the jury. One way of dealing with the witness who gives you a non-responsive answer is to simply repeat the question with a rising inflection, perhaps using your hands in cadence with your words. You might also politely say to the witness, "I'm sorry. That last question may have confused you. Let's try again." or "Maybe my last question was unclear to you. Let's start over." You may want to be more confrontational, e.g., "Do you know what my last question was?" or "What did I just ask you?" or "Will you try to answer my question?" or "Let's get this straight between us (Let's be clear on this) right now. My job here is to ask you questions and yours is to answer my questions. So here's my question again; 'You shot John?' And your answer to the jury is?" In situations where it is obvious to everyone that you are having to pry an an answer out of the witness, you might want to say, "Do you want to answer my Question? You don't have to if you don't want to." See the CCJA written monograph on Cross-Examination for more techniques. Here are some examples of techniques you can employ to deal with the witness who tries to evade answering your question:
- Repeating the Question (Polite Form):
Q: You shot John?
A: Blah - blah - blah.
Q: You shot John, right? (Option: "So your answer to my question "You shot John," is 'Yes'?" Polite option where you take the blame for the non-responsive witness: Begin with "Perhaps I didn't make myself clear, the question is ' You shot John, didn't you?' And your answer to that question is what?")
- Repeating the Question (Assertive Form)
Q: You shot John?
A. Blah - blah - blah.
Q: Did you hear the question I just asked you? (If "No": If I repeat the question will you be so kind as to listen carefully to it?)
- Reading the Question - Repeated Unresponsive Answers:
Q: You shot John?
A: Blah - blah - blah.
Q: Perhaps it would be helpful to you if the court reporter would read
back my last question. (To court reporter: Would you read the witness my last question, please?) Now, will you give us an answer to that question?
- Providing the Answer When the Witness Balks :
Q: You shot John?
A: Blah - blah - blah.
Q: Did you hear my question?
A: Blah - blah - blah.
Q: Then your answer is "Yes"?
- Fronting the Witness' Obvious Bias and Focusing on the Question
Q: You shot John?
A: Blah - blah - blah.
Q: Ms./Mr. Witness, I understand that you've come here today with some things that you want to tell this jury. And you're going to have that opportunity. But, for right now, my question of you is "You shot John?" Please answer that question.
Q: You shot John?
A: Blah - blah - blah.
Q: Is there something about my question that prevents you from answering "yes" or "no"?
A: Not really.
Q: Then are you ready to answer the question?
- Highlighting the Witness' Refusal to Answer and Accepting It:
Q: You shot John?
A: Blah - blah - blah.
Q: You shot John?
A: Blah - blah - blah.
Q: You don't want to answer my question, do you?
A: I'm not saying that.
Q: Well then, just to be clear about it, here's the question one last time: "You shot John, right?" If you don't want to answer that question, I won't make you. [The Adali Stevenson alternative to the previous sentence: "I'm prepared to wait for an answer until hell freezes over."]
- Letting the Non-Responsive Witness Run Before Setting the Hook in His Gut:
Q: You shot John?
A: Blah - blah - blah.
Q: You shot John?
A: Blah - blah.
Q: Anything else you want to say?
A: Blah.
Q: Anything else?
A: No.
Q: Now, I'll ask again, "You shot John, correct?"
Q: You shot John?
A: Blah-blah-blah.
Q: Don't worry about the mule going blind, Jesse, just answer the question - "You shot John, right?"
+ Don't give the opposing witness permission to draw conclusions. When you begin a question with the words "So," "Then," or "Therefore," you may be getting ready to ask the proverbial one question too many. Words of this sort are signals to the witness that s/he is free to draw his/her own personal conclusion from what s/he has previously said. The great risk of the conclusory question is that the witness may not agree with your conclusion and will use the opportunity to narrate and editorialize. Word choice is very important in cross. It is risky to ask a hostile witness to agree with descriptive adjectives, e.g., fast, slow, tall, short, beautiful, ugly, etc. Why? Because these inexact adjectives are sufficiently fluffy, foamy, and frothy to allow the witness to quibble with you. Nouns and verbs are a lot more concrete than modifiers. The point is simply this - Don't give the hostile witness the entree' to venture an opinion. Save the conclusion for your jury argument, where you draw it as a logical inference from the witness' factual testimony.
+ Use variations in vocal tempo, volume, tone, and pitch when cross-examining. Use a vocal style that is appropriate for the particular witness. Don't cross-examine every witness with the same voice.
+ Don't get angry, loud, tough, judgmental, or confrontational with the witness, except on purpose. Don't allow yourself to move from questioning into quarreling or arguing with the witness. Stay cool. Despite the ca-ca/poo-poo sometimes depicted in courtroom TV and movie dramas, you don't have to be aggressive with every witness you cross-examine. You don't have to destroy every opposing witness. Not every opposing witness is a liar. Don't try to insinuate it, unless you have an obvious factual or impeaching basis. Unless you have a purpose, don't attack the witness. . Remember what Buddha said about anger, "Holding onto anger is like grasping a hot coal with the intent of throwing it at someone else; you are the one getting burned."
+ Don't be too slick, haughty, or arrogant in skewering and grilling a witness on cross. Follow the previously mentioned Gladiator Rule - cross-examine the opposing witness into a position where the jurors will vote "thumbs down" when skewering time arrives in the jury deliberation room.
+ As a relative newcomer, how do you use the notes in your trial notebook in questioning? Do not read your questions to the witness from your trial notebook! You can certainly refer to your list of questions, but, first, look at the question, second, look at the witness, and, third, ask the question. So, look at your notebook, refresh your recollection of the question, look up, and ask the question. Don't be looking down at your trial notebook to determine the next question while the witness is answering the present question. Why? Because you can't be listening to the answer if you are busy trying to find you next question, and because any jurors cuing off of you will see little importance in paying attention to the witness' answers.
+ Eventually, you will learn to question without constant reference to your trial notebook. Developing the knack of questioning without referring to your notes involves preparation and practice. You can't expect it to happen overnight, but, with dedicated effort and experience, it will happen. If you immerse yourself in your case, your notes, including your written questions, will become only a trial aid, a guidepost rather than a hitching post.
+ The length of cross depends on the circumstances. Many lawyers favor the brief , get-in get-out cross. Yet the great lawyers are often the ones who engage in marathon cross-examinations. Whatever the length of your questioning, save the best for last. Your last question should be one that the witness cannot wiggle out of. End with an "armor-piercing," question - a bang, not a whimper.
+ Cross is not required of every witness. Assess the probable risks and rewards. Did your opponent erroneously leave out one of her key points on direct? Cross always makes redirect possible. Has the witness hurt your case? What can be gained and/or lost by cross? Should you cross? Sometimes, not often, the answer is "No."
CROSS OF A POLICE OFFICER WHO HAS OMITTED A VITAL FACT FROM THE POLICE REPORT
Police officers are taught that a big part of their investigative job is to make sure that their report is "thorough, accurate and professional." They know that the report is a permanent record of the incident and has to include all pertinent facts. They know the report must paint a clear word picture of what happened. They know that the quality of the report can influence their credibility on the witness stand as well as the effectiveness of the prosecuting attorney's courtroom effort. They know that the police report will be used by the prosecutor as the primary source for issuing complaints, informations and indictments, and for crafting and responding to pretrial motions, and for planning and preparing a case for trial, and for assessing a case for negotiated settlement without resort to trial. They are taught that from the prosecutor's standpoint "If it isn't in the police report, it didn't happen."
Suppose that you notice that the police report omits one or more important facts. How can you handle this in your questioning? Here are some questions taken from the 6th edition of my book Criminal Trial Advocacy - Simulation Exercises in Criminal Litigation :
Q: Officer, do you consider yourself as a professional?
Q: Your job involves a lot more than just strapping on a badge and a gun and riding around in a police car (cruiser, prowler, patrol car)?
Q: Your job has certain educational requirements that have to be met?
Q: And you also have on-the-job training?
Q: In these days you use computers?
Q: So your job is more than just physically arresting someone?
Q: Modern law enforcement is more about gathering facts than it is about force?
Q: You have testified here in court that (state the factual in-court testimony of the officer that are not contained in police report)?
Q: Does that recollection stand out in your memory when you think back to the events of (state the date of the relevant events)?
Q: When you told us earlier today about that recollection, were you relying solely on your own memory or was it based in any way on what someone else told you?
Q: One of your jobs as a police officer is to write a police (or offense) report of the crime? [Note: In some jurisdictions the officer's report is referred to as a "police report." In others, it is known as an "offense report." Refer to the report hereafter in your questions as it is labeled in your jurisdiction. I will use the label "police" report here, even though my Texas brethren refer to it as an "offense report."]
Q: Basically that involves describing the facts of your investigation of the event in the form of a written report?
Q: This report is then kept as a permanent record?
Q: And this police report contains the relevant factual information about what you saw and did in investigating the case?
Q: The police report may also contain what witnesses told you?
Q: Certain information must be put in the police report so others can use it?
Q: As part of your police training, you are actually taught how to write police reports?
Q: You know from your own experience that the prosecutor relies on your police report in figuring out what the prosecution's evidence will be?
Q: You know that the prosecutor uses the police report in deciding whether to file an information (or to seek an indictment by the grand jury?
Q: You know that the prosecutor uses the police report to develop pretrial motions (or respond to pretrial motions)?
Q: Are you also aware that the prosecutor uses the police report for building a case for trial?
Q: If there is to be a negotiated settlement (plea bargain), you know that the prosecutor relies on the police report in deciding whether to plea bargain?
Q: The short and long of it is that you know the prosecutor needs to know the "who, what, when, where, why, and how" of the alleged offense?
Q: Can we agree that a big part of your job is arresting people (or investigating cases)?
Q: Fair to say that you arrest (or investigate) quite a few people (or cases) each year?
Q: If you have testify in a case where you made an arrest (or conducted an investigation), you use the police report to refresh your memory about the information you developed?
Q: Is it important that the police report be accurate?
Q: Is it important that the police report be thorough?
Q: Is it important that the report be complete?
Q: Is it important that the report contain the facts that give a clear picture of what happened?
Q: Is it important that it contain facts and not just your opinions?
Q: As a professional police officer to you demand accuracy and thoroughness of yourself?
Q: Are you familiar with the term "field notes"?
Q: Field notes are notes you make out in field, on the spot, about specific events to help you remember later what happened?
Q: When you are out in the field making an arrest (or investigating a case), is it your habit to make some notes to yourself about events and circumstances when they are fresh on your mind?
Q: Field notes can help you reduce the risk of inaccuracy in reporting names and dates and events?
Q: Field notes can be used to refresh your memory later on, can't they?
Q: You could use them interviewing people?
Q: You could also use field notes in writing the police report?
Q: Did you make any field notes in this case? [Practice Note: Make a trial discovery request for the field notes using the applicable rules of evidence in your jurisdiction that give you the right to have a copy of the opposing witness' statement for use in cross-examination. In Texas, this is Rule 615 TRE. In federal court, it is Fed. R. Crim. P. 26.2.]
Q: Did you make a police report in this case?
Q: How many reports did you make in this case? (Make a trial discovery request for the police report. Mark the police report and authenticate it as to time, place, and date.)
Q: And is it your habit to make a written police report in each case where you are the officer in charge of the arrest (or investigation of the case)?
Q: And can we agree that you put all the important facts you developed in this police report?
Q: Do you consider your police report thorough, complete and professional?
Q: Because this was a case involving (state the relevant issue, e.g., search and seizure of a pistol), you knew that the circumstances surrounding the (state the relevant issue, e.g., seizure of the pistol) were important?
Q: You realized the issue of whether (state the relevant issue) could be crucial to your case?
Q: For the record, I am handing you a document marked for identification as Defense No. __. Is the police report that your prepared in this case?
Q: And it reflects your version of the events and circumstances of (state the date).
Q: Take a look at your police report, and tell us where in the report there is any mention whatsoever of (state the crucial fact that the officer witness testified to in-court during direct examination that are not contained in the police report).
Q: Do you need to look at it again just to be sure?
RECROSS
Recross-examination is generally limited to the subject matter of the redirect. This is true even in jurisdictions like Texas that adhere to the wide-open cross-examination rule. Don't do a recross simply as a knee-jerk reaction to the fact that the opposing counsel did a redirect. Avoid recross, unless you have a purpose. Don't do it simply to have the last word. Be so ready with your questions on cross that you don't have to recross on an afterthought question that should have originally been covered.
RESOURCES
+ If you are cross-examining a government informant, (The government refers to such a person as a "confidential informant" or "CI.") you should consult any publications of the government or state relating to the way authorities deal with their informants. For example, if you anticipate cross-examining an informant in a federal case, refer to the free, downloadable Department of Justice Guidelines Regarding the Use of Confidential Informants. If you plan to cross-examine a government informant, first take a look at Frontline's special on "snitches." It will provide some useful insight into the world of informants. Here's the best bibliography of resources, some hyperlinked, on government informants from the popular media, journals, books, and reports.
+ You'll find quite a bit of information about cross-examination on the Internet (1). For example, here are several samples of cross of an arresting officers, some from DUI (DWI) cases (1), (2), (3), (4), cross of a cooperating witness or co-conspirator (1- this paper by a public defender is worth your time; it contains good analysis of cross-examining cooperating witnesses/snitches, plus several examples of cross of a snitch (1), (2), (3) and some sample motions re snitches together with a sample government cooperation agreement (1) (2 - 65 pages including a transcript of the defender's Q and A of the cooperating witness), and cross of child witnesses (1), (2) , (3 - sexual assault of a child); here are suggestions for cross of experts (1), (2), (3), (4) in general and of a forensic psychologist (1) and a forensic expert on computers (1). Here's a good discussion of the art of cross-examination by a civil lawyer and a prosecutor's 71-slide PowerPoint explanation of approach-point cross. The paper on cross-examination at this conference is noteworthy only for the reason that it contains the preliminary hearing cross-x notes of the female lawyer who defended basketballer Kobe Bryant on his sexual assault charges. Who can forget venerable F. Lee Bailey's cross-examination of L.A. Detective Mark Fuhrman, a witness whose insolent answers concerning the so-called "N-word" played right into the winning defense theory of an insidious police frame-up of black "celebrity" football star O. J. Simpson. Lincoln's famous cross-examinationof a prosecution witness in the murder trial of Duff Armstrong. It's not unusual for personal injury lawyers to include articles on cross on their web sites, e.g., (1), (2), (3), (4), (5), (6), (7), (8), (9 - traditional do's & don'ts), (10 this one for the expert computer examiner witness, not the examining lawyer) or for criminal defense lawyers to tell you how the cow ate the cabbage (1), (2-military). Occasionally, a law professor (1 - 54 pages) (2 - Professor Elkins' thoughts re the Gerry Spence mode of cross) will beneficently share his thoughts on cross-examination.Gerry Spence in a mock cross-examination. Here's a cross-examination blawg that's worth a peek; they'll try to sell you a book. The DOJ even has a criminal justice site for kids that contains a sample cross (1). The theater guy has a video that echos a couple of the many points that Ponzer & Dodd and Professor McElhaney have been making for years. More fascinating, here's the cross-examination of Nazi Albert Speer by Robert H. Jackson at the Nuremberg War Crimes Tribunal. (A couple of civil lawyers (1) have done a brief post-mortem of Jackson's cross of Hermann Goering at the Nazi War Trials.) For other written resources check the CCJA Bibliography.
+ Your Tube Video Clips: Movie-goers may find some segments of cross on YouTube, e.g., Tom Cruise crosses Kiefer Sutherland in A Few Good Men, Spencer Tracy cross-examines Frederic March in Inherit the Wind.Charles Laughton crosses prosecution witness Marlena Dietrich in Witness for the Prosecution; Joe Pesci asMy Cousin Vinny crosses the grits-cooking eyewitness; the stuttering public defender in My Cousin Vinnystumbles and bumbles his way through cross of an identification witness; Andy Griffith as Matlock displays an over-the-top cross; embattled Duke LaCrosse DA Mike Nifong is crossed during bar proceedings against him.
+ A web site contains the trial transcript of all the witness examinations in a well known child abduction and murder (People of California v. Westerfield). The lawyering on both sides was of high quality.
+ The Ten Commandments - The father of modern trial advocacy was a judge-prosecutor-defense attorney-law professor named Irving Younger. While spending a semester as a visiting scholar at the Harvard Law School, I had the pleasure of seeing the dynamic Younger in action. He was a man you didn't forget. Several speakers on the current CLE roadshows pattern their speaking approach after him. In his early years on the stump and before he developed his own uniquely winning style, Professor McEIhaney was reminiscent of Younger. From my perspective, Younger was a more fascinating speaker than all his current copycats put together. More importantly, he got us thinking about modern techniques of persuasion in the courtroom. The professor went to a heavenly reward at an early age, but left his indelible mark on the trial bar and several generations of advocacy students. Younger's simple list of "Ten Commandments of Cross-Examination," i.e., Be Brief - Use Short Questions and Plain Words - Always Use Leading Questions - Always Know the Answer to the Question - Listen to the Answers Given -Don't Quarrel With the Witness - Don't Let the Witness Repeat His Story - Don't Let the Witness Explain - Don't Ask One Question Too Many - Save Your Ultimate Point for Argument, were a legend in their time - the late 70's. Take a look at this slightly more contemporary streaming video analysis of Younger's commandments by a young civil lawyer (pull the collar of that coat down) from Texas. See also (1 - a variation of Younger's version), (2) on the commandments.
