Cross Examination

Cross Examinations

Wayne Lyman Morse United States Federal Courthouse, Eugene, Oregon, 2006. Leaders Energy and Environmental Design Gold certification for energy efficiency.

Objectives

A cross examination is where the attorney conducts an examination of the other side’s witness.

The attorney usually pursues one or more of the following objectives:

To develop favorable matters left unsaid on direct examination
To demonstrate that the witness is lying
To establish that the witness could not have seen or heard what they claimed
To show the witness’s inability to recall the events accurately
To show the witness’s bias or prejudice
To establish any interest, pecuniary or otherwise, the witness may have in the outcome of the trial
To impair the credibility of the witness
- By getting them to admit that they made statements on a prior occasion contrary to their current testimony
- By laying the foundation for proof of contradictory statements by another witness or document
To impeach the witness
- By proof that he has been convicted of a crime
- By any other way permitted by law
To introduce all of a conversation or document if the witness has testified to only a part out of context
To bring to the jury’s attention that the witness testifies evasively, hesitantly, belligerently, or so slowly that they seem to be struggling to support their testimony
To challenge the opinion of an expert witness

What the Attorney needs to know

What is your team’s theory of the case?
What themes does your team want to emphasize?
What are the strengths and weaknesses of the witness in their statement?
What are the three most important points your team wants to make with this witness?
- Suggest using a witness analysis sheet to prioritize issues
What are the key facts your team wants the witness to admit/testify to?
What is the overall impression your team wants to leave the jury with as to this witness?
What exhibits do you want to use and perhaps introduce with the witness?
What is the total time allowed for all cross examinations?
- Check the Mock Trial rules in your jurisdiction
- Allocate the time between all witnesses
- In Oregon, e.g., the total time allowed is 11 minutes
What objections do you want to make against the witness’s testimony on direct examination
What are the possible objections that might be made to the cross examination questions? What will be the response?

Anatomy of a Cross Examination: The Basics

Identify the main points to address
- The objectives listed above are the ones most often used
- Others are case specific
- Suggest no more than three subject areas
Develop a series of questions around each of these points
Identify an organizational structure to use
1. Based on importance
2. Chronological
3. Other
Control the witness by asking only closed ended questions
- Questions that can only be answered ‘yes’ or ‘no’
- “You were driving you car at about 50 miles an hour, correct?”
- Open ended questions (who, what, when, where, why, how) will illicit a long response from the witness that will use up valuable time
Have the exhibits ready that are needed
Have the witness’s statement ready
- Be prepared to impeach the witness if they do not give the right answer

How to do a Cross Examination

Focus on two or three points, make sure that questions under each point are well organized, and leave the jury with a clear understanding of the points that were made.

The specific steps include:

Analyzing the witness’ statement and ranking the possible issues in order of importance
- Identify the two or three top issues to focus on
- The objectives listed above are possible points
- Many points will be will be case specific
Put the strongest points first and last and the weaker point in the middle
Develop a series of questions under each of the points
Use introductory remarks and transitions between each point
- Sometimes you may not want the witness to know where you are going (“Now I’m going to talk about your lying”) so just use a more general transition “Let’s talk about what you say you heard my client say at the party.”
- On the other hand, a transitional statement like “Now I’d like to talk about the order in which events occurred that evening” helps the jury to understand what the points are

Advanced Strategies

Use different organizational structures depending upon the specific point
Possible strategies for some common points
1. Areas of agreement/favorable matters left unsaid on direct
  - Excellent area to start with
  - Non confrontational – an easy way to ease into the cross
  - Don’t rush – let the jury hear each area of agreement
  - Start and end with the most important areas of agreement to leave the jurors with the strongest impression
2. Demonstrate the witness is lying
  - Put this point last if it is the strongest, or in the middle if if is the weakest
  - This point will create the most confrontation
  - Pin down the witness’s testimony first
  - Stick to the facts – do not directly accuse them of lying – let the jury come to this conclusion
  - Establish motive for the lie – why are they not telling the truth?
3. Establishing the witness could not have seen or heard what they have claimed
  - Tell it as a story or paint a picture so the jury will get a picture in their mind
  - Chronological and descriptive organization work well for this
  - Use the precise language in the witness statement
4. Bias or Prejudice
  - Usually not strong enough to end with
  - Use facts and do not argue
  - Be clear on the type of bias you want to argue on closing
    - Interest in the outcome
    - Paid to testify
    - Bias against a party
    - Unconscious bias based on life experience
    - Express conscious bias based on what they say and do
    - Confirmation bias – you see you are looking for (and do not see other things)
5. Impeachment of testimony at trial
  - Best as the middle point – there are a lot of ways the witness can backtrack, qualify what they said, and wiggle out of the trap
  - Confrontational by nature
  - Compare and contrast structure works well for this
  - Start slowly
  - Keep the element of surprise – do not let the witness know where you are going
  - Lock the witness into their testimony – get them to repeat what they have said
  - End with the prior statement as a fact
  - Do not argue with the witness
6. There are certain unique points that can be made with expert witnesses (see discussion below)

Going deeper: Improving Cross Examinations:

In a Mock Trial the attorney is judged on both:
- Substance and technique . . . AND
- Performance and style

Substance and Technique

Ask closed ended questions
- This deserves re-mentioning because deviation from this rule is a common mistake
Ask closed ended questions in different ways
- Closed ended questions can be asked using words or using vocal inflection.
- Using words:
  - “Isn’t it true that … ?”
  - “You said . . . correct?”
  - “You saw . . . right?”
- Through vocal inflection
  - “You got out of your car?” (Inflection at the end)
  - “And you ran away?” (Another inflection)
Ask only questions you know the answer to
- The answer to these questions should be:
  - In the witness’s own statement
  - In the stipulated facts and within this witness’s knowledge
  - In an exhibit this witness is familiar with
  - In the direct examination testimony just given
- An exception is if you have a different direction to go if the witness answers either “yes” or “no.”
Be prepared and organized
- For each question have a page and line numbers in the witness’s statement with the answer
- Have exhibits ready
- Have witness statement available if needed for impeachment or objections
- Have Mock Trial rules ready in case you need them
- After the first cross examination, check time remaining before starting each subsequent each cross examinations
Ask questions that establish one fact at a time
- Paint a picture for the jury fact by fact allowing the jurors to reach the conclusion
- Ask only one question at a time
- Compound questions are objectionable
  - “You hit someone lying in the road?”
  - “You got out of the car?”
  - “And you ran away from the accident scene”
Lock the witness into testimony
1. Questions should be clear and simple
2. Avoid ambiguous questions
3. Pin down witnesses to inaccurate versions of the facts, so they can’t wriggle free later
Make adjustments based on each witness
- What type of witness are you dealing with?
- How is the actor portraying that witness?
- Are they honest?
- Are they nervous?
- Will they give control to you or fight you?
- Are they prone to exaggeration?
- Are they going to try to use up your time?
- Know your case and the witness well enough to be able to adjust your cross-examination approach on the fly
Use the technique of looping
- Looping is when you take a previous fact admitted by a witness and weave it into subsequent questions for effect
- Still, only establish one new fact per question
- Practice double and triple loops.
- Example
  - “It was about 12:00 noon?”
  - “And you were driving your car down Washington Street?”
  - “And while you were driving your car down Washington street at noon you were looking at a text on your cell phone?”
  - “And as you were looking at the text on your cell phone you hit someone in the street?”
Keep the questions simple and direct
- Do not use legalese
- Do not use big words – this is not an intelligence contest
- Complex questions confuse both the witness and the jury
Use word repetition
- This is done for effect, to emphasize a point, and for drama
- Example:
  - “You were responsible for the safety of the athletes on the football team?”
  - “You were also responsible for having the football helmets tested?”
  - “And you were responsible for recognizing the signs of a concussion?”
With narcissistic and know-it-all witnesses consider pushing their testimony to the extreme
- This makes their testimony lack credibility
- Witnesses are not supposed to be advocates
- If a witness uses extreme language like “never,” “always” or “impossible” think of ways to push this to the point of appearing obstinate or even ridiculous
- Compare and contrast the extreme statement with other known facts and other extreme statements the witness may have made in the past
Maintain control of the witness
- Ask simple closed ended questions
- Ask the witness to answer “yes” or “no” – be firm
- Impeach the witness if needed – but do so quickly so it doesn’t eat up time (see section below on impeachment)
- Witnesses are often coached to qualify their answers and use up valuable cross examination time – it’s part of the game some teams play
- Take advantage of the psychology of these negative witness habits (evasiveness, hostility) – let the witness show their worst qualities for a few questions while you try to be courteous and get them to just answer the question – once you have allowed the judge to see what they are doing, ask the court for assistance
- Ask the judge to instruct the witness to answer the question asked with a simple “yes” or “no” answer
- If the Judge denies your request the first time and the witness keeps doing the same thing, ask again for assistance.
Stick to the facts – do not argue with the witnesses
Do not ask the one question too many
- This is the question that tries to get the witness to agree with with your conclusions
- Keep to the facts
- Leave conclusions for closing argument
- Witnesses won’t usually agree to broad conclusions that make them look foolish.
- Example:
  - “The woman was attacked at night.” “Yes”
  - “It was raining.” “Yes.”
  - “There were no stars.” “No.”
  - “There was no moon.” “No.”
  - The street lights were out.” “Yes”
  - “You left your eye glasses in the bar.” “Yes”
  - “And the whole assault took only a few second.” “Yes”
  - Here is where the attorney should stop and not ask the next question (tying to get the witness to agree with the conclusion)
  - “You didn’t see her attacker very well did you?
    Answer: “No, I saw him clear enough. No doubt in my mind that that’s the guy (pointing to the defendant in the courtroom) It wasn’t so dark that I could not see his face.”

Performance and Style

Practice
Create drama in the courtroom
- Take charge
- Your focus should be on the witness
- Do not look directly at the jury
- Use pauses and silence as tools to build tension and emphasis
- Enunciate clearly
- Use an assertive voice (but not an aggressive voice)
- Vary your volume and tone for emphasis
Positioning
- Position yourself so that the jury pays attention to you
- Proximity to the witness can create more drama
- Do not have your back to the jury
- Try to arrange it so that the witness looks at you and not the jury
Memorize the Cross Examination
- Memorize content, movement, inflections, and gestures
- Listen to the witness’s testimony on direct examination and make adjustments accordingly
- If notes are needed
  - Use sparingly
  - Do not read from them
  - Use a legal pad or clip board so they do not flop around
Use body posture and movement deliberately and consciously
- Maintain upright body posture (do not slouch)
- Keep shoulders back to show confidence
- Place equal balance on both feet
- Move confidently, with purpose
- Movement can also help emphasize transitions between approach points
- Try not to fidget or have unnecessary gestures or body movements
Use gestures consciously
- Gestures can be used to create drama and emphasis
- Don’t shy away from pointing to individuals in the courtroom
Act professional and confident – even if you are nervous