Principles of Cross-Examination

Presenters:

Honorable Nancy J. Waples

Vermont Superior Court Judge

Mary Kay Lanthier, Esq.

Rutland County Public Defender’s Office

2020 VBA Trial Academy

“Cross-examination is the greatest legal

engine ever invented for the discovery of truth.

You can do anything with a bayonet except

sit on it. A lawyer can do anything with cross-

examination if [s]he is skillful enough not to

impale his/[her] own cause upon it.”

John Henry Wigmore

CROSS-EXAMINATION IS A SKILL

Like any skill, it can be learned

It requires preparation…and more preparation

Practice

Prepare some more

“The fight is won or lost far away from

witnesses – behind the lines, in the gym,

and out there on the road, long before I

dance under the lights.”

Muhammad Ali

DEVELOP A THEME

DEVELOP A STRATEGY

For Each Witness:

What can this witness add to your theme?

What facts do you need from this witness for closing?

Strategy: Ask the questions to develop your theme

List your own objectives

What are the five or fewer topics you want to accomplish in cross

HOW DO YOU DEVELOP

A THEME AND STRATEGY? Know your client’s version of events.

Know what evidence exists.

Know every witness statement.

If a witness has given multiple statements, know each one.

Know where the witness said something. Document it.

Video/audio technology – this is more time-consuming

WHAT IS THE OBJECTIVE?The objective is to highlight:

Bias

Interest

Prejudice

Lack of Credibility

Lack of Knowledge

Inconsistent with Physical Evidence

Inconsistent Statements

BUT DON’T FORGET ABOUT…..

Helpful Facts

TURN YOUR OBJECTIVES

INTO QUESTIONS For each objective, develop a cluster of questions

Put each cluster of questions on one page of paper with

the objective.

The order of the questions may change depending on

the direct examination or the opening, but the questions

should not change

Include references to where the witness has stated the

answer previously (depositions, interviews, statements)

If the objective does not fit in with your theme, think

twice before using it

DOES THE OBJECTIVE FIT MY THEME?

If the other side’s witness provides facts that are entirely supportive of

your theory of the case and provide corroboration to your client’s

version of events, do you cross-examine that witness on her lack of

knowledge, inability to see what happened?

Probably not.

Do you cross-examine that witness on her strong relationship with the

other party and her strong dislike of your client?

Maybe.

Just because the facts exist, does not mean you have to use them.

WHAT DO THE QUESTIONS LOOK LIKE

SHORT

SIMPLE

ONE QUESTION = ONE FACT

ANSWER IS ONLY YES, NO, OR I DON’T KNOW

THE QUESTION PROVIDES THE ANSWER

THE QUESTIONS SHOULD LEAD THE WITNESS BY THE NOSE

WHAT DO THE QUESTIONS NOT

LOOK LIKE?

The questions should not ask the witness to explain

anything

The questions should not ask “why”

The questions should not ask “what did you mean when

you said that”

The questions should not present multiple facts

If you do not know the answer,

do NOT ask the question

EXAMPLES

Mr. Smith was walking along the side of a road at about 11:30 p.m. He

was struck by a car driven by Mr. Jones. Mr. Smith survived but suffered

significant injuries. Mr. Smith has sued Mr. Jones. Mr. Smith presents the

testimony of the first person on the scene following the accident, Lisa

Witness. Ms. Witness testified that when she came upon the scene, Mr.

Smith was laying in the road, unconscious. She will testify that the

vehicle Mr. Jones was driving was parked a hundred feet down the

road, up on a sidewalk. Mr. Jones was leaning over Mr. Smith, trying to

stop his leg from bleeding. He had not called 911 yet. She testified

that while holding the tourniquet on Mr. Smith’s leg, Mr. Jones

repeatedly said he was sorry.

The theory of the defense is that Mr. Smith was walking

away from a bar after a verbal fight with a friend and

was intoxicated and stumbled into the road just as Mr.

Jones’ vehicle was coming upon him, leaving Mr. Jones

no opportunity to avoid the accident.

Lisa Witness went to high school with Mr. Smith, having

known him and his family for 35 years. Mr. Smith’s and

Ms. Witness’ children have been in the school drama

club together for years in both middle school and high

school.

CROSS-EXAMINATION:

Lack of Knowledge

Method # 1:

Ms. Witness, do you know when the accident occurred?

Do you know where Mr. Smith was when he was hit?

Do you know where Mr. Jones vehicle was when Mr. Smith was hit?

Do you know where Mr. Smith was walking from?

Do you know where Mr. Smith was going to?

How would you describe Mr. Smith’s mental state?

Why did you find it important that he had not called 911?

CROSS-EXAMINATION:

Lack of KnowledgeMethod # 2:

Ms. Witness, when you came upon this scene, Mr. Smith was laying on the ground, correct?

Mr. Jones was already out of his vehicle, correct?

Mr. Jones vehicle was 100 feet from Mr. Smith, correct?

He had left his vehicle and traveled to where Mr. Smith was?

By the time you arrive, Mr. Jones was tending to Mr. Smith’s injuries, correct?

By the time you arrived, Mr. Jones had already put a tourniquet on Mr. Smith’s leg, correct?

You did not see the accident occur, correct?

You only arrived at the scene after the accident had occurred?

You have no knowledge as to where Mr. Smith was at the time of the accident?

You have no knowledge as to where Mr. Jones was a the time of the accident?

CROSS-EXAMINATION:

BIAS

Method # 1

Ms. Witness, you and Mr. Smith went to high school together forty years

ago, your children now attend the same school and you socialize with

Mr. Smith?

You would say anything to help him, wouldn’t you?

CROSS-EXAMINATION:

BIAS

Method # 2

Ms. Witness, you recognized Mr. Smith immediately when you saw him

on the night of the accident, correct?

You and Mr. Smith have known each other for over thirty years?

The two of you went to high school together?

You grew up in the same community?

It is a small community?

Both of you have raised your children in the same community, correct?

Your children and Mr. Smith’s children have gone to middle school

together?

CROSS-EXAMINATION:

BIAS

Your children and Mr. Smith’s children have gone to high school

together?

Your children and his children are both involved in the drama club, correct?

They have been since middle school?

Seen him at many school functions?

Seen him at many events related to the drama club?

Not just the productions, but rehearsals?

Fundraisers?

When you saw him in the road that night, you felt terribly for him?

CROSS-EXAMINATION:

Helpful Facts

Cross-examination is not always about confronting the

witness.

If you have developed a story, developed a theme, it

will be a story or a theme that makes sense and fits the

facts that exist.

Some of those facts will be known to the witness you are

cross-examining.

While the facts may be important to you, they may not

be important to the opposing side.

What facts does this witness have that are important for

you?

CROSS-EXAMINATION:

Helpful Facts

Ms. Witness, you have lived in this small community your entire life,

correct?

You have driven this road where the accident occurred?

You have driven it thousands of times?

There is a sharp right hand corner leading into the area where Mr.

Smith was struck?

Indeed that night, when you came upon the accident, you had to

stop suddenly?

You were not able to see if from very far away because of this corner?

CROSS-EXAMINATION:

Helpful Facts

You came upon the accident at 11:30 p.m., correct?

It was dark wasn’t it?

No streetlights in that area?

Difficult to see?

Mr. Smith was wearing jeans and a dark sweatshirt, correct?

CROSS-EXAMINATION:

Inconsistent Statements

While preparation is key to all aspects of cross-examination, it

is particularly important when you seek to cross-examine a

witness with a prior inconsistent statement.

You must know where to find the prior inconsistent statement.

Your cluster of questions should refer to the source of the

inconsistent statement.

With the prevalence of audio and video recordings, you may

need to prepare the clips of the audio/video files.

CROSS-EXAMINATION:

Inconsistent Statements

Know what you are using the statement for:

Refresh Recollection

Impeach with prior inconsistent statement

CROSS-EXAMINATION:

Inconsistent Statement

Ms. Witness, you testified on direct that you smelled alcohol when

you were leaning next to Mr. Smith, correct?

You testified that the odor of alcohol was coming from the direction

of Mr. Jones, correct?

You testified that you were sure the odor was not coming from Mr.

Smith?

Committed the witness to their direct testimony; no confusion

CROSS-EXAMINATION:

Inconsistent Statements

You spoke the police at the scene of the accident,

correct?

You spoke to them about 30 minutes after you arrived at

the scene, correct?

You spoke to them shortly after Mr. Smith left in the

ambulance, correct?

I am going to show you Exhibit A, do you recognize the

person on the tape?

This is you, correct?

CROSS-EXAMINATION:

Inconsistent Statements

This is you talking to the police, correct?

At 1:13 of this tape, you tell the police that you smelled an odor of alcohol, correct?

At 1:15 of this tape, you tell the police that you smelled the odor of alcohol coming from Mr. Smith?

Your report to the police at the scene, within 30 minutes of the accident was that Mr. Smith had an odor of alcohol emanating from his person?

CROSS-EXAMINATION:

Inconsistent Statements

It is hard to predict what inconsistent statements may be

presented by a witness’ testimony. The only way to be

prepared for these unexpected “gifts” is to know every

aspect of the witness’ statements and have it sourced.

REVIEW AND REVISEOnce you have your questions, review them again.

Review them again.

You want them to be as short and leading as possible

When you look at your sequence of questions, does it make sense?

Does your sequence of questions satisfy your objective or is the series of questions unnecessary?

ORGANIZE

Cross-examination should not be chronological.

Cross-examination should not mirror the direct.

Start STRONG – this can be a balancing act.

What is the strongest point I want to make?

How confident am I that the point will be made cleanly and

efficiently?

ORGANIZE

End STRONG – Another balancing act

Not only a strong point, but easily made – clear.

If you have your cluster of questions on one piece of paper, you can re-organize as many times as you want.

There will be some areas where you are not entirely sure how smooth something is going to go, bury it in the middle. If it goes well, great; if not, move on.

Example: deposition testimony not as clear as you would like

CROSS-EXAMINATION:

Listen to the Witness’ Answer

If you have done the preparation, trust yourself.

If you are nervous and lost, you have your clusters of

questions with the objective written at the top.

LISTEN…..LISTEN…..LISTEN

Did the witness answer the question?

Did the witness’ answer open up additional cross?

CROSS-EXAMINATION:

The Talkative Witness

Rely on your short questions, which use plain language

and only involve one fact?

Ideally – yes, no or “I don’t know”

Nicely interrupt and repeat the question.

Increasing intensity of warning to the witness.

CROSS-EXAMINATION:

The Talkative WitnessRemember: You know the answer or you wouldn’t be asking the question.

You are in control – you are leading the witness.

You know what the witness is going to say.

Make sure the witness says it.

With a particularly difficult or evasive witness, you can comment on that during your closing argument.

CROSS-EXAMINATION:

The Forgetful Witness

When you start confronting a witness about bias, prejudice,

lack of knowledge, inconsistent statement AND you do it

successfully, it is common for a witness to begin to say “I

don’t remember.”

CROSS-EXAMINATION:

The Forgetful Witness

Q: Isn’t it true that in your deposition, you said, “x”?

A: I don’t remember.

Q: I am going to show you what has been marked as

Exhibit A for identification. Is this the transcript of your

deposition?

A: Yes.

Q: Turn to page 16, line 10, read that line to yourself?

A: Does that refresh your recollection?

Q: During your deposition, your said, “x”?

CROSS-EXAMINATION:

The Forgetful Witness

Goal is to take control.

Make the witness see that you are prepared.

Saying “I don’t remember” is just going to take longer.

Train them to agree, because that will be easier.

CONTROL

Cross-examination is about control.

You lead; the witness follows.

Only happens with preparation.

Knowledge of facts, comfort with your theory/theme, and

aware of your objectives.

FINAL POINTS

Know your case.

Don’t cross-examine just because you can.

Not all areas of cross-examination need to be pursued –

only those that fit into your theme. Ask yourself “why?”

Take control.