CROSS-EXAMINATION
Lecture: Cross-Examination
Once the attorney who called the witness completes the direct examination, the opposing attorney may ask the witness questions. That questioning by the opposing attorney is called “cross-examination.” It is the opposing attorney’s opportunity to demonstrate that the witness’s story is not as believable as it may first sound. In order to expose weaknesses in the witness’s testimony, the attorney conducting the cross-examination asks questions that demonstrate several facts: (1) the witness cannot remember facts; (2) the witness did not give all of the facts in the direct examination; (3) the witness told a different story at some other time; (4) the witness has a reputation for lying; (5) the witness has a special relationship to one of the parties (maybe a relative or close friend) or bears a grudge against one of theparties. The cross-examination questions should bring out one or more of the above factors. The attorney must limit the cross-examination questions to subjects discussed in the direct examination. Otherwise, the opposing attorney can object to them as “outside the scope of direct examination.”
Cross-examination questions are quite different from direct examination questions. On direct examination, the attorney poses open-ended questions, which ask the witness to explain his or her version of the story. (Example -- “What happened on September 24th, Mr. Rogers?”) However, on cross-examination, the attorney shouldnever ask questions that allow the witness to explain. Instead, the attorney should ask questions that lead the witness to the conclusion that the attorney has already drawn. (Example -- “Isn’t it true, Mr. Rogers, that you were at the corner of 110th and Amsterdam Avenue at 10:10 p.m. on September 24th?”) Notice that through the question, the attorney is actually making a factual statement that she wants the witness to confirm by saying “yes” or “no.” This is known as a leading question because it calls for the witness to confirm a specific fact. With cross-examination, never give the witness an opportunity to explain an answer. To avoid that, there are five major points to remember when conducting a cross-examination:
1) make your questions leading;
2) make a statement of fact and have the witness agree to it;
3) use short, clear questions that bring out facts bit by bit;
4) vary the order of your subject matter; and
5)know the probable answers to all your questions, so that the witness cannot hurt
you with a surprise answer.
The sample cross-examination questions that follow illustrate the aforementioned points. Notice that none of the questions are open-ended (example -- “What happened next, Ms. Y?”). Rather, they are all leading questions, which state facts and require a “yes” or “no” answer.
Also note that there are a variety of ways to ask a question in order to obtain a “yes” or “no” answer. For example, look at the underlined part of each of the sample cross-examination questions. The questions end differently. Avoid ending every question with “isn’t that right,” “didn’t you,” or any other single phrase.
Sample Cross-Examination Questions
Note: The following questions are from a lawsuit where the deceased father’s will excluded his son. The son is now challenging the validity of that will in court based on his father’s mental incompetence.
1.Q.Mr. Jones, you are one of the late William Jones’s children aren’t you?
A.Yes.
2.Q.You’re one of the three children who survived him, isn’t that so?
A.Yes.
3.Q.You knew he had substantial (lots of) property and other assets didn’t you?
A.Yes.
4.Q.When you learned that his estate was valued at over $200,000, that didn’t surprise you, did it?
A.No.
5.Q.But when you learned that he had willed his entire estate to three different charities, that did surprise you, didn’t it?
A.Yes.
6.Q.You knew that this meant that the three charities would get all your father’s money, right?
A.Yes.
7.Q.Shortly after learning the contents of the will, you consulted a lawyer, correct?
A.Yes.
8.Q.You then learned that if the will was valid, the charities would get all your father’s money, right?
A.Yes.
9.Q.But, if the will was invalid, the intestacy laws would apply, correct?
A.Yes.
10.Q.So, you knew that if the will was declared invalid, you would get about $70,000 from the estate, isn’t that so?
A.Yes.
Introducing Affidavits for Impeachment Purposes
If, during cross-examination, you believe a witness has not been truthful on the stand, contradicting his or her own affidavit, you may find it necessary to impeach that witness’ testimony. For example:
Attorney:Mr. Doe, you went to the store on January 13, 1998, didn’t you?
Witness:No, I did not.
If the attorney knows that the witness’ answer contradicts his or her affidavit, the attorney should do the following:
1. Restate the Question and Refer to the Affidavit
Attorney:Mr. Doe, did you not state in your signed affidavit that you went to the store on January 13, 1998?
If the witness responds correctly this time, there is no need to go further and the attorney should continue with his or her prepared questions. If the witness continues to give an answer which contradicts his or her affidavit, then the attorney must do the following:
2. Ask to Approach the Bench (i.e. the Judge)
Attorney:Your honor, may I approach the bench for the purpose of securing the witness’ signed affidavit?
Judge:You may.
- Establish for the Record that the Affidavit is the Signed Statement of the Witness
Attorney:(showing the witness the statement) This is your signed affidavit, correct?
Witness:Yes.
Attorney:And this is your signature at the bottom, correct?
Witness:Yes, it is.
4. Ask the Witness to Read Aloud From a Specific Location in the Affidavit
Attorney:Mr. Doe, please read for the court this portion of your statement taken under oath (e.g. “Begin with... and read to...” or “Read this sentence please.”).
Witness:Reads the statement aloud…
5. Restate the Question, Reminding the Witness that He or She is Under Oath
Attorney:Now, I ask you one more time under oath, did you not state in your signed affidavit that you went to the store on January 13, 1998?
Witness:Yes, I guess I did.
6. (Optional) Point Out the Inconsistency
Attorney:So you lied to the court when I asked you not once, but twice, whether you went to the store on January 13, 1998, didn’t you?
The attorney should now proceed with normal questioning.
Large Group Activity: Distinguishing Direct and Cross-Examination Questions
Instructions: Listed below are examination questions. You are to write beside each question whether it is a question that may properly be asked on direct or cross-examination.
Direct or Cross?
1. Would you state your name for the record?
2.Where do you live Mr. Diamond?
3.You are 33 years of age, aren’t you?
4.Are you married?
5.Did you have a job before you were involved in this tragic accident?
6.You worked with the Nita City Police Department for a little over one year, isn’t that so?
7.Did you have a job prior to becoming a police officer?
8.Did you receive any merit awards for your participation?
9.You knew Ms. Trudi Doyle, right?
10.How would you describe your relationship with Ms. Doyle?
11.Your back was to the crowd, correct?
12.Isn’t it true that you knew that Ms. Doyle did not own a gun?
13.Were you at the cafe on the date of Ms. Doyle’s death?
14.Why did you go to the cafe?
15.When you left the police department the morning of Ms. Doyle’s murder, you cocked your gun and tucked it in your waistband, right?
16.When you arrived at the cafe, Ms. Doyle ignored you, right?
17.After Ms. Doyle ignored you, what did you do?
18. You were prepared to kill Trudi Doyle if she refused to go with you,
isn’t that so, Mr. Diamond?