Cross-Examination

11-05

Introduction

Cross-examination can be one of the most daunting aspects of trial.  It doesn’t help that the thought of cross-examination conjures up visions of Perry Mason, Barry Scheck, Gerry Spence or some other highly skilled advocate ripping the opposition’s key witness to shreds.  Fortunately, this image is mostly the product of fantasy and far from the truth.  The truth is that cross-examination is normally damage control.

Normally, you are not going to win your case on cross, you are not going to loose your case on cross, and that impeachment that you have been planning for days either isn’t going to happen or when it does it isn’t quite as astonishing as you had hoped.  But with careful planning, the adherence to certain rules, and the application of certain techniques you can cross-examine any witness with confidence and in a way that moves your case forward.

I would like to give credit specifically to Irving Younger.  Studying his videos, teachings, and writings on cross-examination, trial practice, and the law was the best and most memorable part of my law school education.  He was a gentleman and a scholar, and trial lawyer extraordinaire.  I would also like to give credit to Jack McGehee, Scott Baldwin, and Jim Perdue – excellent trial lawyers whose writings and tips should be sought and studied.

Cross-examination of experts will be addressed in a separate article.

Do you want to cross-examine?

Despite what many trial guides will tell you, there is really only one reason for cross-examining a witness: the other side called her and you are afraid not to cross-examine her.  Having said that, you really should think long and hard about whether or not the witness has hurt your case.  If a witness hasn’t hurt your case, there really isn’t a reason to cross-examine.  In that situation, you may simply want to establish a few needed points sit down.

Your Plan

Since you are going to cross-examine the witness you will need a plan.  So, think about what you need for your closing.  The points that you want to make in your closing argument are the basis for your cross-examination.  If a point is not necessary in some way for closing, it may not be worth bringing out on cross-examination.  What is your story?  What are your themes?   What do you need to accomplish with this witness?  In other words, do you need to obtain favorable testimony or do you wish to discredit their testimony?  Do you need to cross-examine the witness on events, conversations, or documents?  Answer these questions before attempting to draft your cross-examination of any witness.

Your rules

•    Start and end crisply: Think about what you want the jury to remember, what you want them to believe.  Set the tone with the first questions and end with the one fact that you want the jury to remember most.

•    Be brief.

•    Know the answer before you ask a question: Never ask a question to which you do not posses the answer.  Don’t, don’t, don’t do it!

•    Listen to the witness’ answer.

•    Don’t argue, never have a witness explain, and be patient, calm and professional.

•    Know when to sit down: Set up the conclusions or points that you want to obtain one fact at a time.  When you get the last fact you want, you are done.  Don’t make that last point – the one that everyone is thinking (or should be), save it for your closing, because if you do ask that last question that sums it all up – the point that you just know is going to make you look oh so smart – you will inevitably get a bad answer and not look so smart.  So, get your last fact and sit down.

Your Technique

•    Begin with agreements and undisputed facts.

•    Use leading questions.

•    Make a statement of fact and have the witness agree to it: You are the one testifying during cross-examination.

•    Use short, clear questions one step at a time.

•    Maintain control: In order to maintain control of the witness maintain eye contact with the witness as much as possible.  If you are not able to completely forgo the use of notes during your cross-examination, simply place your notes or outline in front you but do not read from them.  They will be close by if you need them.

If you have a difficult witness, one that just refuses to answer your question, try these techniques.  First time, “Let’s try this again.”  Second time, “Thank you, but that was not my question.  My question is . . .” Third time, move to strike the answer as nonresponsive and request that the judge instruct the witness to answer the question appropriately.

•    Impeachment: The basic technique to impeach a witness with a prior inconsistent statement is known as Commit, Credit, and Confront.  It works like this; commit the witness to what she just said that is different then what she said before.  Then credit the witness with the prior statement: confirm the time, place, and circumstances of the prior statement.  And finally, confront the witness with her prior statement that is different then what she is now saying on this point.

For example:
Q: Mr. Kanevil, you were the first northbound car into the intersection just before the collision, correct?
A: Yes.
Q: And NOW you are telling this jury that you didn’t hit my client’s car but that she hit you, is that right?
A: Yes that is what happened.
Q:  Mr. Kanevil, you recall having your deposition taken in this case.
A: Yes I do.
Q: In fact, I took your deposition didn’t I?
A: Yes.
Q: We were at your lawyer’s office?
A:  Yes.
Q:  I believe it was a Thursday, May 24, 2007, is that right?
A:  I think so.
Q:  You were under oath, meaning you swore to tell the truth that day, right?
A:  Yes.
Q:  But at that time, under oath, you said that YOU HIT the right front quarter panel of Ms. Garcia’s car, correct?
A:  That is not what happened?
Q:  That is what you said under oath isn’t it?
A:  I don’t recall.

Q:  Well, let’s take a look.  I’m going to direct you to your deposition page 29, lines 12 through 17.  Read this with me.

Q: As you were heading north and entered the intersection what happened?
A:  Well, she, the gray car, was coming into the intersection as well and she was just there and I hit the right front end, the right front quarter panel of her car.

Q: Okay, did I read that correctly?
A:  That is what it says on the paper.
Q:  Those are your words are they not?
A:  That is what it says.
Q: You were under oath Sir?
A: Yes.

Mr. Kanevil has been impeached.

A word of caution: impeachment rarely works the way you want it to.  Most courts in California require the original deposition transcripts to be kept with the court during trial.  When impeaching a witness with prior deposition testimony the original transcript must be located by the court (usually the clerk), handed to the judge, the appropriate page and line found, and then the impeachment takes place.  And often witnesses have never read or signed their deposition transcript, meaning they may try to argue with you that what you are pointing out is not actually what they said.

Put simply, impeachment can be slow, cumbersome, and boring.  While everyone fumbles with the deposition transcript the jury is either wondering what is going on at best or bored to tears and daydreaming at worst.  That Perry Mason moment that you have been planning for all week just past without so much as a whimper.

Here is a technique that may help and potentially aid in controlling the witness.  If you deposed the witness yourself prior to trial, start your cross-examination like this:

[Pick up the deposition and very briefly glance at it so that the witness knows that you are looking at his/her deposition.]
Q: Good morning Mr. Smith.  Mr. Smith, we have met before haven’t we?
A: Yes I believe so.
Q:  In fact, I took your deposition in this case didn’t I. [
Tap on his deposition for emphasis.]
A:  Yes.

You have now reminded the witness that he/she gave prior testimony under oath that you are prepared to use if he/she strays from it or suddenly has a change of heart.  You may have also woken up the jury after a lengthy direct examination.  This technique can be especially helpful with experts that try to exploit any wiggle room between what they said in deposition and what they would like to say at trial (this will be covered more fully in a subsequent article).

A similar technique is to pick up the witness’ deposition and flip to a particular page as you ask a question; the witness will be less likely to argue with you about prior testimony or the points that you are trying to make.

•    Project confidence: As Bob Dylan once wrote, “…I’ll know my song well before I start singing…”

•    Be yourself.

The following is an excerpt from a cross-examination of a bartender in a dram shop action.  A bar was being held responsible for continuing to serve a customer (and the mischief he caused) when the bar should have cut him off (names have been changed to protect everyone).

Q: You were the bartender on duty at Sam’s on the night of July 10, 2003, correct?
A: Yes.
Q: Now, you showed up at Sam’s that night at about 6:00 to start drinking, right?
A: I showed up to have a beer with some friends.
Q: And you had a beer or two before you clocked in didn’t you?
A: Yes.
Q: It wasn’t uncommon for you to have a drink or two at the bar before going on was it?
A: No.
Q: In fact, it wasn’t uncommon for other bartenders to do that – to have a drink before starting work at Sam’s was it?
A:  It wasn’t uncommon for us to have a beer before work, no.
Q: And you were the only bartender working that night right?
A: Yes.
Q: But you weren’t scheduled originally to work that night were you?
A: No, I wasn’t on the schedule for that night.
Q: Now, the reason you clocked in, and were working that night at all, was because the bartender that was scheduled was too drunk to work, isn’t that right?
A: Well, she didn’t feel well and I was there…
Q: (picking up a copy of the witness’ deposition and flipping to a particular page) Let’s try this again, the reason you clocked in, and were working that night, was because the bartender who was scheduled had drank too much, isn’t that right?
A: Yes.
Q: Brad Evildoer showed up about 7:30 correct?
A: I believe so yes.
Q: And you knew Mr. Evildoer correct?
A: He had been to the bar before yes.
Q: You had served him before hadn’t you?
A: Yes.
Q: In fact, he had been thrown out of the bar before hadn’t he?
A:  There had been a fight once, and he was asked to leave.
Q:  And you had been working, serving him that night, correct?
A: I was there when there was a fight and Brad had been asked to leave yes.
Q: On July 10, the night that we are here to talk about, you were serving Mr. Evildoer Jack Daniels correct?
A:  That is right, that is what he drinks.
Q:  But you can’t recall how many he had had can you?
A: No, I can’t.
Q: [picking up his deposition again and turning to a particular page] You can’t recall how many drinks YOU had WHILE YOU WERE SERVING that night can you?
A: Well, I didn’t have many.  I only had a beer or two.
Q: You had a beer or two while you were working, while you were serving alcohol to customers?
A:  Yes.

Q:  But you can’t recall the exact number of beers you had WHILE you were serving can you?

A: I don’t know the exact number, no.

There are many things that you can do to improve cross-examination.  Documents and prior testimony can and should be displayed electronically so that the jury can view in detail the items that you are questioning the witness about or the testimony that differs from the witness’ current version.  And as with any aspect of trial – know your audience.  Know how your judge likes cross-examination conducted – do you sit or stand, can you approach a witness with an exhibit without first asking permission, can you publish a photograph to the jury or should you simply leave it with the clerk, and is the judge a stickler for foundations and technical matters or is she more relaxed.

Volumes could be and have been written on cross-examination.  This article is meant as a starting point and basic guide.  I hope the tips are helpful.

Leave a Reply

Your email address will not be published. Required fields are marked *