Mastering the Art of Cross Examination

Cross examination is a goal-oriented process designed to accomplish one or more of three primary purposes: (1) introducing a new fact to the jury, (2) weakening or highlighting a fact that has already been introduced, or (3) weakening or strengthening the credibility of a witness.  A well-done cross examination consists of selective attacks on specific areas of the witness’s testimony.  Do not retell the whole thing again through cross examination.  In order to accomplish these goals you should always apply these three primary rules during cross examination.

The best way to ensure that you only address one fact with each question is to break your questions down into their smallest parts.  Simple questions do not leave the witness with any option other than to answer or be obstructive.  Either decision by the witness will be to your benefit.  Simplicity destroys witness escape routes, builds precision, and ensures control by the advocate.  This basic premise must be followed.  One-fact questions are the gold standard for cross examination.  When creating these questions use descriptive words that create a picture in the jury‘s mind.  Consider the following workman-like approach to this task:

• Good: Do you like to drink?
• Better: You like to drink?
• Best: You drink? 
• Followed by:  You like it?

A better arrangement of short, one-fact questions using simple leading questions, descriptive statements, adding one new fact at a time is displayed in the following video performance.  Note the manner in which the cross examination builds from the direct examination, and more importantly, from the objections that were made during the direct.  As you watch this video reflect back on the lessons that you have already reviewed concerning basic questioning techniques.  Note how the questions asked must connect back to the theme and theory of the case in order to properly meet the relevancy standards of the evidentiary code.

There is no reason to make cross examination more difficult than it needs to be.  Use leading questions on cross-examination.  Leading questions give you control.  They are questions that declare the answer.  The best leading questions are short declarative statements of fact—with a question mark at the end.  Consider the following graphic:

Using a logical progression to reach a specific goal on cross examination is the best construct for educating the jury.  It allows you to forecast issues, foreshadow potential answers and create a sense of tension and finality as you lead them to the one unalterable conclusion posited by your logically-progressing, one-fact leading questions.  In the eyes of others, a logical questioning progression makes the goal of the questions appear logically true.  It also greatly reduces the witness’s ability to evade.  Finally, it allows you to penalize the witness through sarcasm, impeachment and lack of credibility when they try to evade the logical progression of your questions.

An excellent way to create logical progression is to view your cross examination as a series of staircases, each with their own landing.  Each one is a controlled inquiry into a specific area.  Each one is a series of questions that leads you up the staircase to an established goal question that serves as the landing.  The final question and answer advances your theory of the case one goal at a time.  Each question is a step-up the staircase towards a location that everyone can see, but no one can avoid without being either false or rude.

In order to create functional paths towards your goal question you must review your materials to see how many different ways you can prove the goal question, and then select the witness or witnesses that you should cross examine on that particular goal.  When creating these lines of inquiry, first move backwards in the sequence of questions until you reach a general point where the witness must agree with the question posed.  From that starting point, draft a series of questions leading to the goal.  Those questions should be general initially, becoming increasingly specific in nature, right up to the goal question.

The progression creates context and makes the goal fact more persuasive.  By using a series of questions, you support the goal fact with as much detail and supporting facts as you can to ensure the goal fact is believed and understood.  Single questions on a goal fact sacrifice the opportunity to surround the goal question with other questions that establish its veracity.  The goal question, “The truck was blue?,” is demonstrated in this diagram:

An Example of One Question Cross Walking the Witness Up the Stairs to the Goal Question

You can also get the same information out with one question:

Q: The truck was blue?

A: Yes.

If you think about it though, there is a lack of focus when you use one simple question to make your point.  The odds that the jury will focus and catch the answer to that one question, in the press of the trial, is not as great when you only use the one question approach.  However, if you do choose to use one question, you have  a greater chance of the jury focuses on the answer when you use physicality in the courtroom.  Once you have mastered the ability to analyze cases, prepare questions, and ask them, you will need to connect your physical self with your intellectual self.  From that connection will spring a complete advocate.

Now that we've looked at this issue, let us move on to some real world examples of effective cross examinations.  The following cross examination is based on the case file State v. Alexander.  It is the cross examination of a police expert in gun shot residue.  This is the type of cross examination that is routinely performed in state courts nationwide.  You will be assigned to perform this same cross in your Trial Advocacy class this week.  In preparation for your own performance, review the following cross examination and develop your own approach modeling this example.

Now that you have reviewed the embedded performance I want you to identify three specific skills displayed in the example you have just reviewed.  Write them down and incorporate them into your cross examination.  When you can see the connection between the performances of others and your own performance you will be on your way to learning experientially - the key to adult learning whenever skills development is taught.  This process of self reflection and assessment used to occur in the courtrooms throughout the United States.  Once you have mastered the basic concepts present in these materials that is your next step - get to the courtroom and watch some good trial lawyers while keeping in mind the lessons you have learned.