Un-sink the cross-examination

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What is cross-examination?

The examination of a witness by the party opposed to the party who has first examined him, in order to test the truth of such first or direct examination, which is called examination in chief. ‘Opportunity to Cross-examine’ includes the method of cross interrogatories. This interpretation laid in the decided case of  QE v Ramachandra 19 Bom 749.

During the cross examination, the examinor may already know facts that need to be disclose. He may extract the most confirming circumstances for the proponent’s own case, which have somehow been left unnoticed. He may demonstrate that the credit of the witness is greater, not less, than was supposed. The great axiom, then, of the art of cross-examination, as dependent in theory, is that it is a contingency whether the fact that will actually be extracted will be favourable or unfavourable to the cross-examiner’s purposes. It is here that the art (that is, the technical skill) of cross-examination enters. On this hang all the lesser rules of the art. Hence, it is that it must call to its aid so many other elements then mere knowledge of law. Experience of human nature, judgment of chances, knowledge of the case, tact of manner — all these things and more, have to do with the art. Yet the theory of the process underlies and influences at every point. To cross-examine — that is the fundamental question, which springs from the essential nature of the process and arises anew for every part of every witness’ testimony. The greatest cross-examiners have always stated this as the ultimate problem.

1. Establish Your Goals for Each Witness

Not every witness needs to be cross-examined. When cross-examining a witness, you should analyse whether it will assist your case (or perhaps might even hurt it), you should probably avoid it. However, before cross-examination the witness, it is critical to establish your goals before you begin.

Knowing where you want to go with a witness will dictate the cross-examination road you take. You will then pave this road with strategic, leading questions based on your thorough review of the witness’s prior testimony in depositions and at trial, and relevant admissible evidence.

2. Structure Your Questions to Box Witnesses In

A tenet of cross-examination is that you should only ask questions you know the answers to. When you do, you can control a witness and force them to testify to facts beneficial to your client’s case. However, the construction of the questions is the key to getting the answers you are looking for.

Each question you ask during your cross-examination should be a leading question, such as “It was raining that evening, correct?”

Leading questions nudge witnesses in the direction you wish them to direct while also limiting their ability to explain their answers.

Each question you ask should focus on one fact. When it does, it will necessarily be succinct. Succinct questions are difficult for witnesses to dodge while also staying credible in the eyes of jurors.

Finally, you should be cross-examining witnesses about facts, not opinions. Opinions are pliant and differ from person to person. Facts are not and do not. For example, you should not ask a witness if they thought an item was “heavy.” Instead, you should ask questions that show the witness knew it was heavy, such as “For safety reasons, you required your coworkers to move the machine with a forklift, correct?”

3. Strategically Use Constructive & Deconstructive Cross-Examination

There are two types of cross-examination. You would use constructive cross-examination to build your client’s theory of the case, and deconstructive cross-examination to damage a witness’s credibility. Each requires a different approach.

When constructively cross-examining a witness, you are attempting to draw out helpful testimony from an adverse witness. The cross-examination should feel like a conversation and not an attack. When you establish a helpful fact through constructive cross-examination, the jury is likely to give it significant weight in its deliberations because it came from an adverse witness instead of one of your own witnesses. When you can confirm a fact helpful to your client’s case through constructive cross-examination, you should.

When deconstructively cross-examining a witness, you are attempting to control an adverse witness and damage their credibility. In other words, you are constantly challenging the witness and boxing them in (using the above structure for questions). If you fail to do so, you may lose the credibility. Deconstructive cross-examinations are most effective when they call into question facts integral to your opponent’s theory of the case.

There may be some instances where you will want to both constructively and deconstructively cross-examine a witness. If you do both, be sure to do the former before the latter. If not, jurors may not view the witness’s confirmation of facts favorable to your case as credible.

4. Know Witnesses’ Prior Testimony Inside & Out

No matter your goal for each witness or how you plan on accomplishing it, to elicit the testimony you seek, you must know each witness’s prior testimony and relevant admissible evidence regarding the witness like the back of your hand.

In addition, in deciding to cross-examine a witness, you already reviewed that witness’s deposition testimony, trial testimony and relevant admissible evidence to find every opportunity to bolster your case or challenge the witness’s credibility. However, you will need more than cursory knowledge of that testimony or evidence.

If, during their cross-examination, a witness answers a question that conflicts with what your expected answers t on their prior testimony or evidence, you will need to reassert control and hold the witness to their prior testimony or evidence. The only method to do so is to know (and equip yourself at trial with) all the times when that witness has previously testified to, or where admissible evidence supports, the testimony you are now attempting to elicit from that witness. Otherwise, you will be unable to pin the witness down.

5. Keep Your Cool with Uncooperative Witnesses

No matter how strategically you prepare for and execute a cross-examination, chances are that at some point the witness is not going to give you a simple “yes” or “no” answer and will begin to challenge you. When they do so, it is important to remain calm. Otherwise, you will likely lose credibility.

As a witness becomes less cooperative, stay calm and professional. Maintain eye contact. Politely interrupt their evasive answers and remind them of your question and that they should answer with only “Yes” or “No.” Use subtle body language clues such as holding your hand up to the witness to stop them or shaking your head from side to side so as to say “No.” If the witness is still not cooperating, politely ask the judge to instruct the witness to answer the question.



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