Cross Examination 1.

Credibility of the witness always in

issue
It is the opportunity to elicit information
and expose weaknesses in a witness’s 2. You may cross examine beyond the
testimony. It can expose a witness’s scope of the direct once the witness
opportunity to observe, capacity to herself has “opened the door” to
remember, and ability to recount. additional matters.

- A witness who voluntarily inserts a

It can bring out mistakes, limitations, and topic can be questioned about it
omissions in the testimony. It can
Other restrictions:
impeach by demonstrating the witness’s
bias, interest, or motive; revealing  Argumentative Questions: You
background details that attack the may suggest answers. You may
witness’s truthfulness; and raising prior assert propositions. But you may
inconsistent statements. not argue with the witness.
Lubet defines cross examination as the  Intimidating Behavior: you are
examination of a witness who has entitled to elicit information in
already testified in order to check or cross-examination by asking
discredit the witness's testimony, questions to the witness. You are
knowledge, or credibility. Cross- not allowed, however, to loom
examination is the ultimate challenge for over the witness, shout, make
a lawyer. It is frequently dynamic, often threatening gestures, or otherwise
exciting and in many ways it defines our bully, or badger the witness.
adversary system of justice.
 Unfair characterization: your right
If direct examination provides for the to lead the witness does not
opportunity to win the case, cross include the right to mislead the
examination may provide you with a witness.
chance to lose it. A poor cross
examination can be disastrous1. Purposes of Cross Examination

On the other hand, Fontham defines 1. To repair or minimize damage

cross examination as a means by which 2. To Enhance your case
the adverse party brings out facts that 3. To detract from their case
support his case, limits the impact of 4. To establish foundation
witness’ damaging testimony, or 5. To discredit direct testimony
demonstrates that the witness is not 6. To discredit the witness
believable.2 7. To reflect on the credibility of
another3
Limitations and Scope
The Law on Cross-Examination
Cross-examination is limited to the scope
of the direct. Since the purpose of the Direct Examinations must comply with
cross is to allow you to inquire of the the applicable rules of evidence, which
adversary’s witness, the scope of the can be divided into two areas: cross-
inquiry is limited to those subjects that examination, and impeachment.
were raised during the direct
 CROSS EXAMINATION
examination.
The information being brought out on
Exceptions on the Scope of Direct Rule:
cross-examination must be relevant.

1 Lubet, S., & Lore, J. C. (2015). Modern Trial Advocacy: 2Fontham, M. R. (2009). Trial technique and evidence
Analysis and Practice. (5th Edition) National Institute for (3rd Edition). LexisNexis.
Trial Advocacy.
3 Lubet, S., supra
The information must be generally 3. Judges in practice impose a
relevant under governing rules. Further, materiality requirement for how
the information must not be excluded by significant impeachment be.
other relevancy rules or the privilege rule.
4. Impeachment can be called
Whenever the witness is asked to repeat
collateral matters because the
in court a statement previously made out
collateral/non-collateral distinction
of court, the testimony must survive the
has nothing to do with cross-
scrutiny of the hearsay rules. It must either
examination.
be non-hearsay, or be hearsay that falls
within a recognized hearsay exception.  IMPEACHMENT METHODS
Cross-examination may use leading There are seven categories of
questions. Although the cross-examiner impeachment.
may use leading questions, this does not
mean that anything goes. Under the
ethics rules, a lawyer may not allude to Can be raised Can’t be raised
any matter that will not be supported by during cross- during cross-
admissible evidence. examination of lay examination of
Trial lawyers can’t also intimidate a witness lay witness
witness by shouting, gesturing, or using 1. Bias, Interest, 6. Bad
other means to unfairly badger a witness. and Motive character
Lastly, cross-examination must be within for
the scope of the direct examination. 2. Prior
truthfulness
inconsistent
 IMPEACHMENT statements 7. Treatises
Evidence law in the impeachment area 3. Contradictory
focuses on two topics: impeachment facts
procedures and impeachment
methods. 4. Prior
Convictions
 IMPEACHMENT PROCEDURES
5. Prior bad acts
Impeachment, which is bringing out
matters that attack the witness’s
credibility otherwise proper
impeachment is never objectionable as
being beyond the scope of the direct.  BIAS, INTEREST, AND MOTIVE
Under the rules, any party can impeach
Bias exists when a witness, through some
any witness, even if the party called the
relationship to the parties or attitude
witness.
about the matter in dispute, has a frame
Rules are largely silent on the procedural of mind that might color her testimony.
requirement for impeachment, but most
Interest exists when a witness’s
judges generally follow the established
relationship to a party or the lawsuit is
common law requirements;
such that he stands to gain or lose,
1. The cross-examiner must have a usually financially, from a particular
good faith basis. That is, he must have outcome to the case.
a reasonable factual basis to believe
Motive exists when a witness has a
that impeaching matter exists.
particular reason, usually because of a
2. Impeaching matters generally should history with one of the parties, to color
be raised during the cross- her testimony a particular way.
examination of that witness.
 These three are always considered as 4. Prior felony convictions (except Core
non-collateral(important). #1) of the accused in a criminal case
are not admissible unless the judge
 PRIOR INCONSISTENT STATEMENTS
determines that the probative value
Most commonly used impeachment of the conviction outweighs its
method. This can be by commission or prejudicial effect to the accused.
omission.
 PRIOR BAD ACTS
Example:
Under the governing rules, prior bad acts
to impeach if the acts are “probative of
truthfulness or untruthfulness. However, if
When a witness says one thing on the stand, the witness does not admit the prior bad
but has said different at an earlier time, this act, the rule expressly states that such
adversely affects his credibility. acts evidence may not be proved with
However, this, as far as collateral/non- extrinsic evidence.
collateral distinction is involved, is taken on  PROVING UP UNADMITTED IMPORTANT
a case-by-case basis. Prior Inconsistent IMPEACHMENT
Statements made under oath at trial,
hearing, or other proceeding are also What happens if a witness is asked about
admissible for their truth where those that an impeaching matter but does not
aren’t made under oath at trial, hearing or admit it?
other proceeding are admitted only for their
Today, judges focus less on the technical
limited purpose of impeachment, but are
collateral/non-collateral distinction and
not admissible for truth.
more on the importance of the
 CONTRADICTORY FACTS unadmitted impeachment in
determining whether it must be proven
Impeachment by contradiction occurs up. The real issue is judicial efficiency.
when a witness is asked to admit a fact
that is inconsistent with what the witness ORGANIZING PRINCIPLES ON CROSS
has just testified about.
Can be based on the four principles of
 PRIOR CONVICTION primacy, recency, apposition, repetition,
and duration.
Whenever, a witness testifies, the
witness’s credibility can be attacked by Three Concepts of Organizing Principles
showing that he has previously been on Cross
convicted of certain crimes.
1. Be in control of the testimony and
witness.

Four Core Mandates: 2. Never ask a witness a question simply

because you want to find out the
1. If the crime involved is dishonesty or answer. Rather, cross is used to
false statements. establish or enhance the facts that
2. Any prior conviction that is a felony in you have already discovered.
the jurisdiction where the conviction 3. It is risky to ask the witness the
was entered. “ultimate question”
3. Evidence of any conviction is Guidelines for Organization:
presumptively inadmissible if the
conviction is more than ten years old, 1. Do not worry about starting wrong.
unless otherwise the judge
- Take the time necessary to
determines that the probative effect
establish predicate facts through
of the prior conviction substantially
indirection.
outweighs its prejudicial effect.
2. Use Topical Organization
 - it is essential in cross. The goal is to A zinger is usually a striking or amusing
not retell the witness’s story but remark. Make your last sentence
rather to establish a small number resonate with the reader while keeping it
of additional or discrediting short and sweet.
points. A topical format will be the
Also, ask these questions:
most effective in allowing you tom
move from area to area.  Were you able to help your client?
- A topical organization allows you  Did you do what you set out to
to make maximum advantage of do?
apposition, indirection, and
misdirection.  Were you able to finish on a high
note, or did you just simply give
3. Give the details first. up?
- To compare, on direct It is therefore imperative that you plan
examination, a witness will always carefully the very last point that you
be able to tell the gist of the story; intend to make on cross examination.
details are used in a secondary
manner to add strength and HOW TO IDENTIFY YOUR FAIL-SAFE
veracity to the basic testimony. ZINGER:
However, on cross-examination, 1. It must be absolutely admissible
the witness will frequently
disagree with the gist of the story - Nothing smacks more of defeat
that you want to tell, and details than ending a cross on a
therefore become the primary sustained objection. If you suspect
method of making your points. even for a moment that your
zinger might not be allowed, then
Cross examination with details allows you abandon it and choose another.
to learn about the witness with a
minimum of risk. We know that cross - Why is the point relevant?
examination is not the time to gather - Why isn’t it hearsay?
information about the case. You should
only ask questions to which you know the - How has the foundation been
answer, or where you are least have a established?
good reason to expect a favorable
- Why isn’t it speculation?
answer.
2. It should be central to your theory
SCATTERING THE CIRCUMSTANTIAL
EVIDENCE - Since your closing point is likely to
be the most memorable, you
Circumstantial evidence is most
would be best served to make it
persuasive when a series of facts or
one of the cornerstones of your
events can be combined in such a way
theory.
as to create a logical path to the desired
conclusion. Unfortunately, facts - To ensure admissibility you must
arranged in this manner on cross will also keep your zinger well within the
be highly transparent to the witness. A scope of the direct.
hostile or unfriendly witness will then
3. It should evoke your theme
become uncooperative, perhaps to the
point of thwarting your cross - The very purpose of a trial theme
examination. Thus, a far safer approach is to create a memorable phrase
is to scatter the circumstantial evidence or invocation capturing the moral
throughout the examination, drawing it basis of your case.
together only during the final argument.
- Closing moments is the perfect
Save a zinger for the End time to evoke your theme.
 4. It must be undeniable. Q: At the time of the collision, the light for
Main was yellow, isn’t that right?
- The end of your cross is not the
A: Yes.
time to argue or quibble with the
This is a factual question. It doesn’t ask the
witness.
witness to agree that the car was going “too
Choose a fact that you can document. fast”, or made an “illegal turn”, or best
known as “quibble words” that witnesses
o Look for something that can rarely agree with.
be proven from a prior
statement of the witness or 3. Make it simple.
some other tangible exhibit or
4. Make your points bit by bit.
writing.
Example:
 Phrase your question in terms of
Q: You’ve driven on Main Street many
bedrock fact, making sure that it
times?
contains nothing that approaches a
A: Yes, that’s the way I drive to and from
characterization.
work.
- The more factual your question, Q: You’ve been driving that route for several
the less possible it is for the witness years?
to deny you a simple answer. A: Yes.
5. Avoid Why Questions because you’ll
5. It must be stated with conviction. likely lose control.
Language of Cross Examination 6. Avoid asking what the witness
No matter what is your closing question, you “testified on direct examination”. This
must be able to deliver with an attitude of would invite witness to disagree with
satisfied completion4. your understanding.

Cross-examination is also about control, and 7. Avoid responding to witnesses who

to control the witness’s answers you need to respond to your question with
control your questions. A good test is the 90% another question just simply repeat
Rule. your question.

 90 PERCENT RULE 8. Finally, stop. Stop before you go too

far.
The trial lawyer should be doing all the
talking (90%). PLANNING FOR CONTROL

1. You have to control the witnesses by 1. Avoid written questions

asking leading questions.  Avoid reading from a script
because it robs the examination
Example: of its spontaneity.
Q: The light was red when the two cars 2. Using An Outline
collided, right?  The purpose of your outline should
A: Yes. be to remind yourself of the points
Q: It was dark at the time? that you intend to make on cross
A: Yes. examination and to ensure that
Q: No street lights on that corner? you do not inadvertently omit
A: Right anything.
2. Make it factual and avoid confusing 3. Referencing your Outline
negatives. Use simple nouns and  Referencing allows you to refresh
verbs. Avoid adverbs and adjectives. the recollection of forgetful
Example: witnesses and to impeach or
contradict witnesses who give you

4
Mauet
 evasive, unexpected, or false and will assume that the event on which the
answers. trial is based happened the same way. You
 Across from every important can use this to your advantage during the
subtopic and crucial detail, make examination. A common situation in which
a note that records the source for this technique is useful is when a witness to
the point that you intend to make. an event wasn’t expecting the event, and
wasn’t paying particular attention to it.
At a minimum, you must reference
Q: The block where the collision happened,
every point that you consider
you walk on that block to and from work
essential to your case, as well as
every day, right?
those that you expect to be
A: Yes.
controverted by or challenging to
Q: And you didn’t expect a collision
the witness.
between the two cars to happen that day,
 Example: You know about the
did you
defendant’s meeting plans
A: No.
because he testified to them at his
deposition. Make a note of the
WHAT THE WITNESS SHOULD ADMIT
page and line in his deposition
When the witnesses, have been interviewed,
where he testified that he had an
there is usually a paper record containing
8:30 a.m. meeting with an
their prior statements. Asking them to admit
important client.
in court facts that they have already stated
Reference sources can be letters, reports,
in that is fertile source of additional
memoranda, notes, and even photographs.
favorable facts.
The best sources, of course, are the witness’
own prior words5. Example:

A witness gave a statement to an

Topics for Cross Examination investigator that he wasn’t sure he could
identify the person who robbed him
FAVORABLE FACTS FROM DIRECT
because it happened very quickly and it
Having the witness repeat those for the
was pretty dark. This statement is recorded in
judge, who will remember the facts better
the report. During cross-examination you
because you repeated them. Focus on
can simply ask the witness to admit those
specific facts that the witness stated during
facts, knowing that you can impeach the
the direct examination that help you and
witness with his prior statement if he now
not the entire examination.
testifies differently.
FAVORABLE FACTS NOT YET MENTIONED
ATTACKS ON THE WITNESS’S PERCEPTION
Frequently the direct examiner doesn’t go
into details that the witness can testify Cross-examination can expose weaknesses
about, usually because those details don’t and flaws in the witness’s ability to perceive
help. an event accurately.
Example: Example:
If the witness was not wearing her
On direct examination, the witness didn’t go
prescription glasses, or has a condition that
into actual conversations made about the
affects her vision, this should be brought out.
meeting. The cross-examiner can bring out
Q: Ms. Abraham, you wear prescription
the actual conversations of the employees
glasses, right?
in the meeting, and can use the witness to
A: Yes.
qualify any business records created.
Q: But you didn’t have them on at the time
WHAT WITNESS MUST ADMIT you saw the crash, did you?
Remember that judges have attitudes A: Yes.
about how common events usually happen,

5
Lubet
Q: The glasses are particularly important Example:
when it’s dark out, isn’t that true? Q: You claim the sex with Ms. Williams was
A: Yes. with her consent right?
Q: And this collision happened at 9:00 in the A: Yes.
evening? Q: But you heard the next day the police
A: Yes. were looking for you, isn’t that true?
A: I heard they wanted to talk to me.
ATTACKS ON THE WITNESS’S MEMORY Q: And you didn’t go home for three days,
If there are reasons why witness’s memories did you?
are questionable, it should be brought out. A: No.

A common approach is to demonstrate that THE “NO AMMUNITION” CROSS

the event is a common event that should
If you have no effective ammunition the
not particularly stand out in the witness’s
safe course is simply to stand up and say “No
mind.
cross-examination, your honor.”
Example:
Q: Officer, as part of the drug unit, you make
arrests frequently, don’t you? FORMULATING QUESTIONS FOR CROSS
A: Yes. EXAMINATION
Q: You’ve arrested other persons during the
past year? Purpose of formulating
A: Of course.  Gain the assent of the facts of the
Q: How many? witness
A: Probably about three a week.
Q: Over the past year that adds up to What to employ?
around 150 arrests?  Generally, employ leading questions
A: Yes.
 The best form in a statement of fact,
If the witness has been interviewed by followed by the inquiring phrase: “is
investors or met other witnesses in whatever that right”
circumstances, you can sometimes
demonstrate the witness’s memory and  You should frame and establish and
recall has been influenced by outside state the question so that they
sources. establish the key facts in the story as
assent is gained from the witness
Q: Since that time, you’ve talked to other
parents about what happened that Avoid negatives in framing questions:
afternoon, right?
 State it in a positive manner and
A: Well, we sometimes talk about it.
call for a “yes” answer
Q: How many times have you talked with
other parents about what you saw that day?  A negative answer may cause
A: Probably several times. confusion

ATTACKS ON THE WITNESS’S ABILITY TO o Ex. “isn’t that correct?”

COMMUNICATE
“Can’t Lose” Questions: Motherhood and
Expose weaknesses and inconsistencies in Apple Pie
the witness’s communication abilities. Some
 “Apple Pie” Propositions are
witnesses have trouble communicating
statements that are generally
what they experienced and describing it
accepted tenets of morality, duty,
accurately.
responsibility, love of family
ATTACKS ON THE WITNESS’S CONDUCT
 Witnesses generally concede these
Sometimes witnesses say one thing, but act questions even if they don’t
inconsistently. necessarily practice them, otherwise
 they lose the appearance of examination in a way that multiplies the
credibility impact of two otherwise unconnected
facts.
Breaking Down Points and Painting Pictures
on Cross-Examination: the “Mountain Out of C. Use Sequenced Questions for
Molehill” Approach Indirection

 Characterized by taking any good What is clear to the judge will also be clear
overall factual point, breaking it into to the witness.
as many subpoints, or facts, as
You may therefore decide simply to
possible, and gain assent to each
abandon apposition and instead to
little point
“scatter” the information.
 Each accurate, specific question
D. Use Sequenced Questions for
makes it difficult for the witness to
Commitment
equivocate and thus usually
produces concessions Using sequenced questions in combination
with incremental questions may
 May start with more precise versions
occasionally allow you to compel an
of fact then proceeding to more
unwilling witness to make important
conclusory questions
concessions.

Sequencing was used to commit the witness

QUESTIONS THAT ACHIEVE CONTROL to several premises that were later
expanded in a way that she would be
A. Use Incremental Questions
unable to deny.
Cross-examination should proceed in a
E. Create a “Conceptual Corral”
series of small, steady steps.
The purpose of cross-examination is to “box-
The larger the scope of your question, the
in” a witness so that crucial facts cannot be
more likely you are to give the witness room
averted or denied.
to disagree. It is therefore preferable to
divide areas of questioning into their smallest After building the first three sides of the
component parts. corral, you may then close the gate with
your final proposition. Each side of the
This technique allows you to:
conceptual corral is formed by a different
 Cut off the escape route for a sort of question:
witness who is inclined to argue or
First Side: witness’ own admissions, gathered
prevaricate. The incremental
from his deposition, documents in the case,
questions provide small targets for
or earlier testimony on direct examination.
a witness’ inventiveness.
Second Side: Undeniable facts that have
 Know early in the sequence
already been established or what can
whether the witness is likely to
readily be proved by other witnesses.
disagree with you.
Third Side: Plausibility.
 Test the witness for cooperation
and to determine whether your F. Avoid Ultimate Questions
own factual assumptions are
It will often be tempting to confront an
correct before you reach an
adverse witness with one last conclusory
embarrassing point of no return.
question, but you need to resist this
B. Use Sequenced Questions for Impact temptation.

You may use sequencing (or apposition) to The classic approach to cross-examination
clarify your story or enhance in its impact on calls for the lawyer to elicit all of the facts
the trier of facts. You may be able to control that led to the ultimate conclusion, and then
the witness, however, by sequencing your stop. The final proposition is saved for final
argument. By saving the ultimate point for Because your leading question is based on
final argument, you ensure that the witness verifiable facts, the great likelihood is that
will not be able to change or add to the the witness will agree with you.
testimony.
There are two legitimate reasons to suspend
The safest route is generally to be satisfied temporarily the use of leading questions:
with establishing a chain of incremental
1. You will occasionally need to
facts and to reserve the capstone for
learn a bit of information from a
arguments.
witness to continue a cross-
G. Listen to the witness and Insist on an examination. You must truly be
Answer certain that you need to ask an
informational question and that
Make sure that you have gotten the correct
you have prepared alternate
answers. In any event, you must always
examination to meet whichever
recall that it is the witness’ answer that
answer you are given.
constitutes evidence, not your question, and
you must listen carefully to ensure that the 2. You may believe that an answer
evidence is what you expected. will have more impact if it comes
in the witness’ words instead of
yours.
Questions That Lose Control
This technique is most likely to work when the
The pitfalls of cross-examination are well information you are after is well-
known: refusals to answer, unexpected documented, factual, and short.
answers, argumentative witnesses, evasive
B. “Why” or Explanation Questions
and slippery witnesses. In short, these are
failure to control the testimony. If you already know the explanation, then
use leading questions to tell it to the witness.
Control of testimony on cross-examination
means ensuring that: Do not ask a witness to explain.

1. All of your questions are answered C. “Fishing” Questions

with the information that you
Fishing questions – the ones that you ask in
want, and
the hope that you might catch something.
2. No information is produced other
Do not ask questions to which you do not
than what you have requested.
know the answers.
In other words, the witness must answer your
D. Long Questions
questions and only your questions6.
Long questions have an almost limitless
capacity to deprive a cross-examiner of
Questions to be avoided witness control. The more words you use, the
more chance there is that a witness will
A. Nonleading Questions
refuse to adopt them all.
The cardinal rule on cross-examination is to
Long questions are easily forgotten or
use leading questions.
misunderstood. Even a witness with every
Solution: Preparation. Be sure of the facts. reasonable intention to honestly and
Read his deposition, scour the police report, forthrightly answer can be misled or baffled
measure the skid marks, and talk to other by a lengthy question. These questions
witnesses. diminish your ability to enlist the judge in your
efforts to control a witness.

66
Lubet
 E. “Gap” Questions This is important to be identified before the
trial to create consistency between the
Gap questions constitute an especially
version as to the point of view of the lawyer
enticing subset of explanation questions.
and the questions to throw during cross-
Allow the omission to remain unexplained examination.
and then to point it out during final
Themes
argument.
A poetic device to summarize the essence
Remember that it is your opponent’s burden
of the theory that the trial lawyer is trying to
to prove their case. Everything that they
convey.
leave out of their case works in your favor.
Do not cross-examine on omissions in Closing Arguments
testimony. Do cross-examine on the
Conclusions drawn out from the theory
absence of facts.
should be stated in the closing statement to
F. “You Testified” Questions emphasize the concept of recency.

Another common method of surrendering Facts that support the Closing Arguments
control to a witness is by asking questions
Admitted facts by the witness that support
that seem to challenge the witness to recall
the theory of the case shall be part of the
the content of her earlier direct testimony.
closing argument to support the conclusion
The problem with “you testified” question is of the theory.
that they invite the witness to quibble over
Questioning Style
the precise wording used on direct
examination. The closer you can stay to A trial lawyer should practice asking short,
“real life,” the less likely you are to lose simple, leading questions that bring out one
control of the witness. helpful fact one at a time.
G. Characterizations and Conclusions

The characterization could then be saved PREPARING YOUR WITNESS FOR CROSS-
for final argument. Recognizing the EXAMINATION
impossibility of stating an absolute rule, the
wisest course is to examine your questions for It's not enough to prepare your witness for
their potential to be taken as direct examination; you must also prepare
characterizations. them for cross-examination.

Sufficient Time

PREPARING FOR CROSS-EXAMINATION Devote sufficient time to prepare for

cross- examinations. Mostly
Listeners wants an informative, direct, and inexperienced witnesses are usually
an organized cross-examination. A trial nervous and anxious.
lawyer should follow a methodology.
Witness's Concerns
A sound method a trial lawyer should ask are
these progressive questions: Witnesses usually ask what the other
lawyer is like, what questions he/she is
1. What is the theory? going to answer, how does he/she
2. What are the themes? respond.
3.What are the proper closing arguments?
4. What facts exist to support those points? Impressions
5. What questioning style should I use? Like direct examination, cross-examinations
Follow this approach to have an effective also involves impressions. This involves
cross-examination. content, tone, demeanor, and the like.

Theory
How a witness acts during a direct Witness Answers a Question Different from
examination should also be how he/she the One you Pose
should act during a cross-examination.
 You may use the same methods as in
I'm here to tell you what I know, regardless of dealing with a witness who explains to
who's asking the questions. introduce counter-points

DO'S and DONT'S Witness Tries to Interrogate You

1. Understand the question. If you  You may turn the request to define a
don't, say so. Don't guess. term around and ask the witness how
2. If you know the answer, give it. If they would define a term
you don't know, say so. Don't
 You must understand the meaning of
guess.
the technical terms used in the
3. Answer only what the questions
question and be ready to offer a
call for. Don't volunteer additional
definition that furthers your point
information.
4. Answer questions only with what  Be sure to request the agreement to
you personally saw, heard, or did. keep control of the interrogation
PRACTICE  If the witness asks for more
information, rephrase with a more
This means practicing the actual questions
specific inquiry
that the cross-examiner is likely to ask, and
hearing the actual answers your client Witness Baits or Insults You
should give.
 Maintain composure

 Direct the witness back to the

DEALING WITH THE DIFFICULT WITNESS ON question as you deflect any
CROSS-EXAMINATION commentary
 Using narrow, specific questions that Dealing with Damaging Information
focus on factual points limit the Revealed in Cross-Examination
witness’s ability to wander from your
points  Avoid appearing injured by a
damaging answer and move on to a
 Choosing understandable language safe question
in your questions will help make it
obvious that a recalcitrant witness is  Do not follow up the question unless
avoiding, rather than you can impeach or contradict the
misunderstanding, your point damaging point

Witness “Explains” to Introduce Counter-  One method of distracting listeners

Points from damage inflicted is to suggest
that a question needs rephrasing and
 Make questions specific to make switch to a somewhat different
explanations seem out of place question
 Use subtle techniques to remind
listeners that the witness is
unresponsive Counsel’s Demeanor and Positioning

 You may ask the witness for help in  It is better to discredit the testimony
answering the questions before and secure factual concessions
explaining rather than attacking the witness as a
person
 Lastly, ask the court to instruct the
witness to answer the questions and Use the witness to prove your points
strike unresponsive answers
 Consider the following pointers in
conducting the examination

 Emotion – Showing controlled

emotions help validate your position
in the right circumstances

 Conviction – Speak in a loud,

authoritative voice to give the
impression that you know the facts
and have the material to back them.
This lends to the credibility of your
statements and should make the
witness reluctant to dispute your
statements

 Position – Stand when conducting the

examination. This helps you assume a
dominant role and helps in controlling
the exchange

 Eye Contact – Eye contact with the

witness makes it harder for them to
dispute your assertions. It allows
emotion shown to seem more real.
Looking and listening are essential to
controlling the examination

 Courtesy – The lawyer is not entitled

to admonish and instruct the witness,
only the court may do so