Cross Examination. Edgar M. Elliott, IV CHRISTIAN & SMALL th Street North Suite 1800 Birmingham, AL 35203

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1 Cross Examination Edgar M. Elliott, IV CHRISTIAN & SMALL th Street North Suite 1800 Birmingham, AL Cross examination requires the greatest ingenuity; a habit of logical thought; clearness of perception, in general; infinite patience and self-control; power to read men s minds intuitively, to judge their character by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject matter itself; an extreme caution and, above all, the instinct to discover the weak point in a witness under examination. I. Introduction Francis Wellman The Art of Cross Examination Cross examination is the hallmark of the Anglo-American justice system. It is protected as a constitutional right in criminal cases and is understood as a fundamental aspect of due process in civil cases. The scope of cross examination varies by jurisdiction. Alabama has adopted the English rule of cross examination which allows wide-open cross examination concerning any issue relevant to the case. Perry v. Brakefield, 534 So.2d 602 (Ala. 1988). Federal courts, however, limit cross examination to those subjects covered on direct examination. The term cross-examination strikes fear in even the most seasoned litigators. No other area of trial work generates as much uncertainty or creates greater potential for disaster. While repetition may allow trial lawyers to become more comfortable in their cross-examinations, the unique nature of each individual witness and case makes mastery virtually impossible.

2 II. Purpose and Goals of Cross-Examination Effective cross-examination eludes even the finest advocates until they understand its real purpose. The point of cross-examination is not to get information from the witness, to fix what happened on direct, or to try to get the witness to recant his testimony. The purpose of cross-examination is to let you tell your side of the witness s story - your way. Litigation James W. McElhaney While the truest aim of cross examination is to argue your case to the jury, this goal may be accomplished in a number of ways. Just as each individual case and witness are unique, the objectives and goals of a particular cross-examination are not a one size fits all proposition. The various goals that may be achieved through cross-examination include: 1. Impeaching the witness. Destroy his credibility as a witness or destroy the substance of his or her testimony. 2. Pinning the witness down to a solidified position to narrow the filed of dispute. 3. Obtaining favorable testimony or concessions. 4. Demonstrating errors or mistakes made on direct. 5. Developing new and advantageous information or facts. 6. Neutralizing the witness so that this testimony is not particularly harmful to your theory of the case. 7. Showing that this witness does not conform with or fit within the theory of your opponent.

3 III. Guidelines Professor Irving Younger s Ten Commandments of Cross Examination provide an excellent guide to cross examination. 1. Be brief. 2. Ask short questions with plain words. 3. Ask only leading questions 4. Never ask a question to which you do not already know the answer or do not care what the answer is. 5. Listen to the answer. 6. Do not quarrel with the witness 7. Do not permit the witness to explain. 8. Do not ask the witness to repeat the testimony he gave on direct examination. 9. Avoid asking one question too many. 10. Save the explanations until closing arguments. While these are certainly good general guidelines, especially for those lacking experience, they are not carved in stone. There may be times when violations of these rules are more effective than their observance. Your good sense, intuition, preparation and tactics will tell you when to abandon the guidelines. When you deviate from the guidelines, however, make sure you understand why you are breaking them and why. IV. The Importance of Control Professor Younger s Ten Commandments as well as most treatises written on cross examination can be reduced to a single concept: stay in control of the witness. The object

4 of cross-examination must be to score as many useful points as possible, but equally important, not to let the witness score any points against you. In order to accomplish this dual goal, control of the witness is critical in order to maximize the amount of favorable testimony elicited from the witness, while simultaneously limiting the witness s ability to insert unfavorable testimony. 1. Achieving Control through the Form of the Question Both Federal and State Rules of Evidence permit leading questions on crossexamination, a right almost wholly denied the direct examiner. This critical advantage must always be pressed. Although leading questions are often defined as questions that suggest the answer. True leading questions do not merely suggest the answer, they declare the answer. One must be careful, however, not to give the impression of fearing the testimony by over-controlling the witness responses. Whenever a lawyer repeatedly tries to force a witness to answer in just one word, the lawyer sends the unmistakable message to the entire courtroom that he is afraid of the witness and what the witness has to say about the case. It gives the impression that there is more to the story than you are willing to allow the witness to tell. In short, it gives the impression that you are hiding something. 2. Achieving Control through Preparation Preparation is the key to cross-examination. Control is best accomplished by topics and selection of subject matter. In order to determine the scope of each crossexamination, preparation is vital. Preparation should begin before trial and continue through direct examination of the witness. Proper preparation includes:

5 1. Reviewing everything you can get your hands on regarding each witness 2. Learning everything you can about each witness personality 3. Reviewing jury instructions to help formulate phrasing of the questions. 4. Developing an outline to use with each witness. Avoid writing out you entire cross in advance - this deprives you the control that comes from eye contact with the witness and also destroys the natural rhythm of questioning. 5. Developing a plan to use demonstrative evidence. Blow-ups of prior testimony or written exhibits that contradict the witness s testimony can create powerful impact on both the jury and the witness during cross. 6. Maintaining a wakeful presence during direct. Often by taking in what is going on during direct, you will pick up on signs of vulnerability or negative reactions from the jury. In order to receive these gifts, you should avoid being a slave to your legal pad during direct - take notes only on what you intend to come back to or capitalize on. 3. Achieving/Reasserting Control Through Actions Despite your best efforts and preparation, some witnesses will wander beyond your control. Your perfectly reasonable question results in a long solilquy of uncalled for information. The following techniques can be used to regain control of such a witness: 1. A stern look. 2. Verbally cut the witness off. Although interrupting a witness may be perceived as rude by the jury, at times the jury will find that the witness deserves it, and you have earned the right to do it. 3. Raise your hand in the universal stop signal. 4. Pointed repetition. 5. Ask the judge for help.

6 V. Content Professor James McElhaney offers several suggestions of organizing the content and method of cross examination: 1. Do not cross examine in a vacuum. Make sure it is safe and consistent with your theory and theme of the case. 2. Emphasize only a few main points. A short, coherent examination is the most effective. 3. Forget trifles. Cull out passing, unconnected inconsistencies. 4. Do not mount an attack you cannot honestly support or sponsor. The trial should focus on what you should do, not what the law will allow you to do. Remember that when you pick a credibility fight with a witness, you wager your own credibility as well. 5. Get admissions early. 6. Start strong and set the tone at the beginning. 7. Plan your agenda. 8. Self-control is more important than witness control. Successful attorneys do not tell the jury that the witness is a liar, they show them. 9. Use headlines. Announcements of the subject matter of questioning serve to orient the jury and assist in witness control. 10. Validate your impeaching material first and then attack. 11. Stay flexible. Do not be a slave to your outline. Be in a wakeful presence that allows you to take advantage of gifts. 12. End on a high point. Always say one or two surefire strong questions so that, no matter what happens, you can end strong.

7 VI. Cross Examination of Experts An advocate s skills are most challenged, both before and at trial, by crossexamination of expert witnesses. Since an expert witness is offered to assist the trier of fact to understand issues normally beyond their own experience and expertise, jurors often fail to scrutinize the expert s testimony with the same critical eye with which they may examine lay testimony. The objectives of expert cross-examination, in general, are to (1) make the expert your own witness to the extent possible (e.g., agreeing to the facts important to your cause or contradicting the testimony of adverse witnesses), (2) undermine the expert s credibility (collateral attack on bias, for example) and/or conclusions (direct assault), or (3) at least neutralize the expert s testimony. An expert witness can be cross-examined effectively if you use a sound approach and prepare properly. Since expert witnesses are experienced witnesses who usually know far more about the subject matter than you know, additional preparation is often required. Use your own expert to help you understand and attack the expert s expected testimony. The purpose is always the same: an effective cross-examination should be safe, yet should give the jury enough ammunition to question or reject the expert s opinions and reasons, and should create impressions about the expert that will carry into the jury room during deliberations. James McElhaney suggests the following ways to cross-examine an expert witness: 1. Make the Expert your Witness - use his testimony to prove your case. For example if the expert disagrees on how the injury occurred, but admits that damage occurred - his testimony on damages may be useful.

8 2. Attack His Field of Expertise - just because a court allows an expert to testify does not mean the field is beyond reproach. 3. Attack His Qualifications. 4. Expose His Bias - fees, prior testimonial experience and relationship with the opposing attorney are most common. 5. Attack His Facts - an explanation is no more reliable than the facts relied on. 6. Vary the Hypothetical - insert facts that you feel should have been included on direct or leave out facts which were improperly included. 7. Impeach with a Treatise. 8. Attack Him Head-on - attempt to show that he erred in his factual investigation, logic or computation. VI. When No Cross Examination is Necessary Sometimes no cross-examination is the best cross-examination. If a witness has nothing to offer, or is too sympathetic and credible, you may want to avoid an examination entirely. You should always ask yourself Has this witness said anything that hurts my case? If the answer is no, you should not question the witness. There is an art to avoiding an examination. It may be appropriate to downplay a witness, by saying Your honor, we have no need to cross-examine this witness. You will send a confident message to the jury that you find the witness testimony has not hurt your case or that the testimony was biased.