At trial, witnesses are called, sworn to tell the truth and then answer the questions asked by the attorneys. When an attorney calls the witness and asks questions, this is known as direction examination. After the attorney completes his or her questioning, the other party’s attorney can ask questions. This is known as cross-examination. As in direct-examination, an attorney may object to questions that are asked. For related information click on: What Happens Before, During and After Trial?
The Difference Between Direct and Cross-Examination
When an attorney calls a witness to testify, it is assumed that the witness will be inclined to testify favorably for the attorney who calls him. Therefore, the law does not permit the attorney to ask that witness questions that suggest the answer to the witness. Questions that suggest the answer are known as leading questions. On cross-examination, however, the law allows the attorney to ask leading questions. The following are examples of leading questions that are allowed during cross-examination but disallowed during direct examination.
ISN’T IT TRUE THAT . . . ?
IS IT A FAIR STATEMENT THAT . . . ?
YOU DID ___________, DIDN’T YOU?
AM I CORRECT IN ASSUMING. . . ?
IN SUMMARY, WHAT YOU ARE SAYING IS . . . ?
There are certain situations when the attorney calling the witness can ask leading questions. The court will allow leading questions to an opposing party and to a “hostile” witness. The judge may allow leading questions of any witness if the judge believes it will serve the interest of justice.
Purpose of the Cross-Examination
Cross-examination has long been referred to as an art. Before beginning cross-examination, the trial attorney should know what it is that he or she intends to accomplish. Cross-examination has many goals, and some goals, while applicable to one witness, may be contraindicated for another. The goals one intends to achieve with a witness will depend entirely upon the witness’ direct examination testimony; how the witness behaves; and the makeup of the jurors who are sitting in judgment of the case.
The following is a list of potential aims or goals for cross-examination:
- Attempt to have the witness modify or change damaging testimony given on direct examination;
- Amplify the testimony that was favorable to your client;
- Establish that the memory of the witness with regard to the event is unclear;
- Show that the ability of the witness to perceive the event about which he testified was impaired;
- Persuade the jury that the witness is biased toward the person or cause for whom he is testifying, or prejudiced against your client or cause;
- Demonstrate the implausibility of the witness’ testimony (if you give them enough rope, they’ll hang themselves);
- Allow the jury to conclude that the witness is unlikable; and
- Elicit information on cross-examination that supports your case or that is inconsistent with the opposing party’s theme or the opposing party’s evidence.
The first consideration before asking the witness any questions on cross-examination is whether or not the witness’ direct testimony has really hurt your case. If it has not, and you still decide to take the witness on a lengthy cross-examination, be aware that you are running the risk of enabling the witness to emphasize unfavorable points that he may not have been able to fully explain on direct.
It is rare in any trial that a Perry Mason-type bludgeoning cross-examination will be effective. More often than not, such an approach will only engender sympathy for the witness and hostility towards the examiner. This is especially true for a witness who is only there because he happens to be a friend or associate of a party, or because he had the misfortune of being a witness to the event because he was at the wrong place at the wrong time. If an expert witness is being cross-examined and that witness makes his living from testifying, the jury will be more tolerant of an aggressive examination. The same is true for a lay witness or party who appears to be obviously lying.
It has been said and it is true that cross-examination by an unskilled trial attorney is often more “suicidal” to the attorney than “homicidal” to the witness. Cross-Examination is an art. Sometimes the most effective cross-examination an attorney can conduct is to stand up and say “I have no questions of this witness, your Honor.”
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