Larry Pozner and Roger Dodd have written a book, Cross-Examination: Science and Techniques which is an excellent source for cross examination ideas. They recommend breaking the cross examination into individual topics which they call chapters. Each chapter is devoted to a particular subject or point. Each chapter should have a specific goal to establish a helpful fact or renew the theme of the case.What are the goals of cross examination? I believe the broad goals are to undermine your opponent’s case and to support your own through the questioning of witnesses called by your opponent. When we are attempting to attack the credibility of the witness in cross examination we do so generally by demonstrating:
- Bias or prejudice
- Self interest or interest in issues involved in the opponent’s case
- Inconsistency in testimony with another witness or evidence
- Inconsistency with common sense
- Inconsistency with previous statements made by the witness
- Omission of significant facts
You must know your goals before you begin. Following the principal of primacy, you should begin with attacks on credibility such as bias, self interest or motive. If the witness isn’t credible then what he thereafter says is probably unreliable If you have more then one impeaching fact, start with the strongest one.. Make sure it is the most relevant and most admissible. Bring up the weaker points later.Remember not to allow yourself to follow some new point the witness brings up which is irrelevant to the issue you are pursuing until you have completed your examination of the original issue you raised. Make note of the new point the issue throws out, but resist the temptation to deal with immediately as it will be a distraction from your point. Simply indicate you’ll deal with it once we finish with the subject at hand.It often helps to have a time line for the event you are dealing with. Breaking down an event into component parts allows you to question the witness about the significant details rather then have the overall picture become confusing.If there are any rules about cross examination that apply most of the time here are some:
- Ask leading questions. For example: “Isn’t it true that…” “Isn’t a fact that…”
- Get the answer. If you have to pause and wait do it. If the witness is evasive, ask the question in a simpler form again. Ask, repeat and then ask if the opposite is true for emphasis. For example:
Q. You signed the report?Q. You did sign this report didn’t you?
Q. Are you now saying you didn’t sign this report?
- Use tags. Ask the question and then use the answer to add another fact. For example:
Q. You saw the stop sign?
- Q After seeing the stop sign you tapped the break, but didn’t stop?Q After you saw the stop sign, tapped the brake, but didn’t stop you went out into the intersection?
- Make sure your questions are supporting your goal and your theme
- Move from general goals to specific goals in your questioning
- When impeaching first clearly establish the previous inconsistency before showing the present testimony in conflict. Lay the proper foundation as to time, place and circumstances.
- Avoid techniques that don’t work. No one likes to hear you tell the witness “just answer yes or no.” Asking the judge for help is a clear indication of weakness on your part and most of the time you aren’t going to get the help.