English 9H Ms. Bugasch

November 4, 2013 “D” Day

Goals 1. Evidence Submittal and Approval

2. Students will be able to:- Understand the purpose of cross-examination

- Evaluate what is considered usable information

- Prepare a theory of cross-examination of the witnesses in their case

FFWSeparate into groups:

1. Recorders: Fill out Evidence Submittal List in the order in which you are planning to use your evidence during the trial. Be sure to label your evidence accordingly (Exhibit A,B, C, etc.)

The Content of Cross- First consideration: should it be brief or

extensive?

- What do you expect the witness to say and how, if at all, will you need to challenge or add to the direct.

- At trial you must make a further examination.

Purpose- Cross-examination should

serve a greater purpose within the theory of your case

Goals of Cross

- Tell the witness what to say

- Make the witness appear un-credible

- Attorney Talks

- Focus should be on the attorney

A useful cross-examination will:

- Repair of minimize damage

- Enhance your case

- Detract from opponents case

- Establish foundation

- Discredit direct testimony

- Discredit the witness

- Reflect on the credibility of another

The Law of Cross Examination

- 1. Leading Questions are permitted.

- 2. Limitations on scope

- Limited to the scope of the direct examination

- Exceptions: - Credibility of the witness: bias, motive, interest,

untruthfulness or material prior inconsistency of a witness.

- If the witness “opens the door”

The Law of Cross Examination

- Other restrictions:

- No Argumentative Questions - (Objection: Argumentative)

- No intimidating behavior- (Objection: Badgering)

- No unfair characterizations- (Objection: Mischaracterizing the testimony)

- No Assuming Facts- (Objection: Counsel is assuming facts not in evidence)

- No compound or other defective questions- (Objection: compound question, objection asked and answered,

objection cumulative)

The organization of cross examination

- As with direct based on 4 principles:

1. Primacy and Recency

2. Apposition

3. Repetition

4. Duration

- Unlike direct, may have to deal with difficult, uncooperative or recalcitrant witness. Therefore there are additional principles to consider when planning a cross.

Three additional guiding principles on cross examination

- 1. Cross examination is your opportunity to tell part of your client’s story in the middle of the other side’s case. Your object is to focus your attention away from the witness’s direct testimony and onto matters that you believe are helpful to your case.

- TO DO THIS YOU MUST ALWAYS BE IN CONTROL OF THE TESTIMONY (LEADING QUESTIONS)

Three additional guiding principles on cross examination

- 2. Cross examination is never the time to attempt to gather new information. Never ask a witness a question simply because you want to find out the answer. Rather, cross examination must be used to establish or enhance the facts that you have already discovered.

Three additional guiding principles on cross examination

- 3. An effective cross examination often succeeds through the use of implication and innuendo. It is not necessary and often harmful to as the “ultimate question.” Closing argument is your opportunity to point out the relationship between the facts, make characterizations and draw conclusions based on the accumulation of details.

- DO NOT EXPECT THE OPPOSING WITNESS TO DO THIS FOR YOU.

How to do this:

- 1. Lay the ground work

- 2. Do not inform witness of the purpose of inquiry

- 3. Use indirect questioning to establish small, incontrovertible factual components of a theory and only later address the theory.

Form of the Question

- Make the witness answer “yes” or “no”; do not give them the chance to explain

- Leading on cross

- …, didn’t you?- …, isn’t it?

Organization

- Direct and Cross should both be organized in three broad groups of questions

- Cheating, the beach, school the next day

- Initial examination of the body, autopsy, final conclusions

- Biggest points first or last

Question Order

- Want your questions to build or flow

- Think of it as a conversation (direct) or an explanation (cross)

- One question should follow from the next, until you get to the end of your big point

- Helps jury or judge so answers don’t seem to come out of the blue

Indirect Hypothetical: Witness does not want to admit signing a document before reading it.

- Question: You are a business man?

- Answer: Yes

- Question: Many documents cross your desk each day?

- Answer: Yes

- Question: It is your job to read and respond to them?

- Answer: Yes

- Question: Your company relies on you to be accurate?

- Answer: Yes

- Question: Large amounts of money can change hands on the basis of the replies that you send?

- Answer: Yes

- Question: You have an obligation to your company to be careful about its money?

- Answer: Yes

- Question: So you must be careful about what you write?

- Answer: Yes

- Question: Of course, that includes your signature?

Your Task and Activity

- Each group will help their lawyers come up with cross-examination questions to ask the opposing team’s witnesses to make them look less credible, find flaws in their testimony, make their story look better

- You must assign a lawyer to each witness

- Have about 7 questions prepared; some cross examination questions may have to be made up on the spot

- Identify points to elicit from opposing witnesses on cross examination that will help develop the theme/theory of their case.

- Use Graphic organizer

Homework

1. IRA due 11/6

2. Cross Examination Questions (7)