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THE ART OF EFFECTIVE DIRECT

EXAMINATION AND CROSS-EXAMINATION

A.

INTRODUCTION

Our topic is the art of direct examination and cross-examination.

While direct examination and cross-examination may have


differing purposes or objectives, both require for success thorough
preparation, mastery of technique, and an artful execution of the
advocates game plan.

Also, whether it be direct examination or cross-examination, the


facts will affect the extent and quality of the examination. No matter
how brilliant the lawyer is, he has to live with the facts of the case. If
the facts are not on his side, his brilliance may avail him nothing and,
as the saying goes, if he cannot pound on the facts or the law, he may
have to resort to pounding on the table.

It may be worthwhile at this point, for a better understanding of


what we will discuss later, to note the differences between the
purposes and objectives of direct examination and cross-examination.

As a general rule, on direct examination, the lawyer calling the


witness will try to provide a clear exposition of the relevant facts. The
objective is to have the witness testify in such a way as to provide the
judge a complete picture and enable him to understand and remember
the witness testimony. On cross-examination, on the other hand, the
opposing lawyer will try to show to the court that the witness
testimony is unclear, inaccurate, or contradictory, or that the witness is
not a credible person.1

To be more specific, direct examination and cross-examination


differ as follows:

(a)

On direct examination, the lawyer uses the witness to


advance and support his theory of the case, while on crossexamination, the lawyer first tests the possibility of
confirming his theory of the case by eliciting from the
witness admissions in support of the relevant facts and he
may also attempt to destroy and discredit the witness
testimony

by

emphasizing

contradictory

facts

and

attacking the credibility of the witness.

(b)

On direct examination, the lawyer tries to focus the


testimony on facts that will enhance his theory of the case

Aron, R., Duffy, K., and Rosner, J., Cross-examination of Witnesses, p. 30 (1989 ed.).

while on cross-examination, the lawyer tries to surround


the testimony of the witness with clouds of doubt and tests
the possibility of eliciting facts corroborating his theory of
the case.

Essentially, the cross-examiner is looking for

inconsistencies between the testimony and the opposing


lawyers theory of the case.

(c)

On direct examination, the lawyer will ask the witness


questions concerning his knowledge of the facts; any
question not prepared in advance could confuse and
entangle the witness at this stage. On the other hand, on
cross-examination, the lawyers purpose is to move the
witness from the security of prepared and rehearsed
questions to a different field, generally unexpected by the
witness.

(d)

On direct examination, the lawyers purpose is to connect


the testimony to credible and verifiable facts, while on
cross-examination, the lawyers purpose is to point out and
prove

improbabilities

and

testimony.

inaccuracies

in

the

direct

(e)

On direct examination, the lawyers purpose is to ask


questions drawing facts in chronological order since it is
easier for the witness to remember events in chronological
sequence,

while

on

cross-examination,

the

lawyers

purpose is to break the chronology of events by jumping


from one subject to another and thereby distract the
witness from his or her line of thought.

(f)

On direct examination, the lawyer must examine the


witness since the testimony is an essential part of the
evidence, while on cross-examination the lawyer may
examine the witness if the questioning could contribute to
his case.2

An appreciation of the differences in the purposes or objectives


of direct examination and cross-examination should help facilitate an
understanding of what is an effective examination and how best to do
it. I hope that my discussion will help both the new practitioners and
the seasoned ones.

B.

DIRECT EXAMINATION

Id, pp. 30-31.

The aims of direct examination are two-fold: (a) to present


evidence legally sufficient to prove each claim or defense, and (b) to
convince the court of the truthfulness and accuracy of all the evidence
supporting the claim or defense3.

Although effective direct examination is usually less spectacular,


more cases are won by evidence on direct than by that on crossexamination.4

According

to

Justice

Ricardo

Francisco,

direct

examination might well be described as the unsung hero of successful


trial.5 To win your case, you must prove it rather than disprove your
opponents case. The direct examination is the foundation of the case.
The only time when you can place somewhat greater reliance on crossexamination is in planning a defense, a case in which you have to
convince the court that the vital elements of the plaintiffs case are
unsupported by evidence or that some vital element of fact is entirely
omitted from the plaintiffs proof.6
An effective direct examination is one that presents not only
legally sufficient evidence but also convinces the court about the
truthfulness and accuracy of the witness testimony.

Although

presenting legally sufficient evidence is an absolute pre-requisite of

Keeton, R., Trial Tactics and Methods, p. 10 (1954 ed.)


Id.
5
II Francisco, R.J., Pleadings and Trial Practice, p. 27 (3 rd ed., 1986).
6
Keeton, R., supra note 3. p. 11.
3
4

success in a trial, the great majority of cases are won or lost upon the
persuasion of the court.7
1.

Witness selection and preparation

The first step to ensuring a good direct examination is the


selection of witnesses who can make the most effective presentation
and corroborate critical information.

You should consider which

witnesses will be most persuasive.

Before a witness is presented, you should study and evaluate the


witness strengths and weaknesses in order to make the witness as
effective as possible. All witnesses cannot be handled the same way.
Many types would have to be specially coached, for example, an
illiterate witness, the poor talker, or one from whom you have to
literally draw out the information.8

The need to interview the witnesses and to go over the case


thoroughly with them cannot be overemphasized. By doing so, you not
only obtain a knowledge of the facts but you learn what each will
testify to, the manner in which they will testify, and the kind of
witnesses they will make.9

Keeton, R., supra note 3, p. 11.


Weiss, S., How To try A Case, pp. 55-56 (1940 ed.).
9
Id.
7
8

Going over all details with the witnesses beforehand will help
them remember the facts better in court; they will also have more selfconfidence, will know what is required of them, and will make better
and more intelligent witnesses in every way.10

Before a witness is called to the stand, he must be given the


proper guidelines or instructions for testifying, which should include:

(a)

the need to maintain eye contact with the judge;

(b)

the need to maintain eye contact with the examining


counsel;

(c)

the dangers of becoming angry or losing control;

(d)

the importance of telling the truth and not exaggerating;

(e)

the importance of making his answers concise, accurate,


complete and responsive;

(f)

the benefits of appearing honest and sincere;

(g)

the necessity of not answering a question that is not


understood;

(h)

the avoidance of speculation or inappropriate opinions


when answering questions;

(i)

to decline to answer a question if the witness does not


know;

10

Id.

(j)

the

problems

created

by

being

non-responsive

or

volunteering information; and


(k)

how to properly address the judge and the examining


counsel.11

The preparation of the witness requires that you must sit down
with the witness and go over very carefully with him what he will
testify in court. In other words, you must prepare the witness to testify
by reviewing with him the questions you are going to ask and his
proposed answers. There should be no surprise questions during the
trial.

As long as you tell the witness to stick to the truth, there is

nothing unethical about coaching or rehearsing the witness. As stated


by one author: No serious ethical question is raised by the lawyers
organizing the testimony into a logical, comprehensible sequence; no
conceivable purpose could be served by having an inarticulate,
disorganized witness, left to his own devices, stumble through his
testimony12.
A leading textbook on trial technique has this to say about
witness preparation:

Witness preparation for direct examination is not


complete until you have run through your actual planned
11
12

Songsteng, J., Haydock, R., and Boyd, J., The Trial Book, p. 213 (1984 ed.).
Mogill, K. and Gonzales, R., Examination of Witnesses, p. 21 (2000, 2 nd ed.).

questions and seen how the witness actually answers


them. The witness answers may be much different from
what your earlier discussion had led you to believe.
Hence, practice the actual direct examination with the
witness so that the witness feels comfortable with your
questions and you feel comfortable with the way the
witness expresses confidence and certainty.

Remind the

witness that it is perfectly proper to prepare the witness for


testifying in court.13

A caveat is in order. While attention must be paid to adequate


preparation of the testimony, care must be taken not to rehearse the
examination so extensively as to cause the witness to deliver an
obviously memorized set piece.

If the testimony appears canned or

seems to be the product of a script, much of the witnesss credibility


will be lost.14

A witness will be a better one if he understands the theory of the


case and the purpose of his testimony. This means that you must take
pains to explain to the witness your theory of the case and how his
testimony fits in the whole scheme of things.

13
14

Mauet, T., Trial Techniques, p. 89 (4th ed., 1996).


Mogill, J. M., supra note 11 p. 24.

2.

Presentation and delivery

In conducting the direct examination, you must assume that the


judge knows nothing about the case.

Your direct examination must

therefore start at the beginning and tell everything. 15

It is not, however, a simple matter of getting the story or the


facts out. The direct examination should tend to portray a clear and
dramatic picture of the main events. As a trial lawyer, you should view
a trial, particularly a direct examination, as a creative art, one which
allows you to tell a story to the court in a way that is most
advantageous to your client.16 You must consider the courtroom as a
theater and the trial like a play or a movie; the witnesses are the
characters. The lines must be persuasive, interesting, compelling and
clear.17 Like a director, you must decide how to portray a certain event
or scene to achieve the desired result.

As one author puts it:

Unimportant matters are avoided or glossed over. Important ones are


stressed, details are zoomed in on, and action is slowed down. Critical
matters can be shown in stop-action sequences.18

Songsteng, J., supra note 10, p. 215.


Mauet, T., supra note 12, p. 74.
17
Songsteng, J., supra note 10, p. 215.
18
Mauet, T., supra note 12 p. 74.
15
16

10

To make your direct examination a highly effective one, the


following suggestions should prove helpful:

(a)

Humanize your witness. Your initial questioning


should include background questions to personalize the
witness. The credibility of the witness is always in issue. A
judge is more likely to believe the witness if he views the
witness as a likeable, decent and nice person.19

(b)

Keep it simple. - Since attention span drops


significantly after 15 to 20 minutes, make your
examination

short

and

focused;

make

the

examination what the name implies direct, i.e.,


straightforward,
Unnecessary

concise

information

and
and

to
details

the

point.

should

be

omitted. Determine in advance what the critical part


of the witness testimony is, get to it quickly, develop
it sufficiently, then stop. Brevity is the better part of
wisdom.20

(c)

Use short simple words. To keep your


direct examination simple requires choosing simple

19
20

Songsteng, J., supra note 10, p. 216.


Mauet, T., supra note 12 pp. 74-78.

11

words and phrases for your questions and training


your witnesses to use simple words and phrases in
answering your questions. Short, simple and easily
understood questions can be answered by short,
simple statements. Such a direct examination makes
the witness feel at his ease and helps him to tell all
he knows in the best way he is capable of doing.
This manner of examination also brings out the facts
in the most effective way.21

(d)

Use sensory language.

Frame your questions in

simple form, using simple and sensory language that


will help the judge visualize what the witness is
saying. Sensory words will give the judge a better,
more vivid picture of what really happened.22

(e)

Elicit visual descriptions. Your direct examination


should elicit visual and other sensory images.

The

witness testimony should paint a picture that the


judge

can

actually

visualize.

However,

avoid

excessive detail which may just clutter up your direct


examination.23
Weiss, S., supra note 7, pp. 52-53.
Mauet, T., supra note 12, pp. 82-83.
23
Id., pp. 79-80.
21
22

12

(f)

Avoid leading questions. While the prohibition


against the use of leading questions in direct
examination is a rule of evidence, it is also a rule of
persuasion.

By suggesting the answer to your

question, you diminish the impact of having the


witness volunteer the facts himself; it prevents the
witness from appearing credible.

Also, because a

leading question will often draw an objection from


opposing counsel, the use of leading questions will
interrupt the flow in the testimony of the witness and
slow it down.24

(g)

Present the testimony of the witness in the


most logical and effective manner. -

You must

organize the key elements of the direct examination


in a logical order. Usually, but not always, this will
result

in

chronological

presentation

of

the

testimony. This is not, however, an invariable rule.


Presenting the most dramatic or important testimony
early in the direct examination when the judge is
most alert can sometimes be the better approach.
You must exercise your best judgment and decide,
24

Songsteng, J., supra note 10, p. 217.

13

with each witness, the order that will most effectively


present his testimony.25

(h)

Volunteer weaknesses. - You should carefully


consider whether you should offer harmful evidence
on direct examination to avoid the more damaging
effect of its being revealed dramatically on crossexamination.

If the harmful evidence is directly

related to the issues in the case and is a matter that


in all probability your opponent will inquire about on
cross-examination, it is preferable to produce it on
direct examination. It can be offered at a time and
manner in the course of the examination that tends
to minimize it rather than dramatizing it 26.

It is

usually best to bury it in the middle of the direct


examination and make it part of the story.

For example, in a vehicular collision case, if


your client before the collision stopped in a bar and
had two bottles of beer, and it is highly probable that
the fact is known to the opposing party, the better
part of prudence may call for disclosing it in your
25
26

Mauet, T., supra note 12 p. 75.


Keeton, R., supra note 3, pp. 54-55.

14

direct

examination.

You

may

minimize

its

significance if your client testifies that the two


bottles of beer did not at all affect his faculties.

(i)

Use exhibits to highlight and summarize facts.


Exhibits

should

be

used

during

the

direct

examination to highlight the central facts of your


case and explain important details to the court. The
preferable time to use exhibits is after the witness
has substantially completed his oral testimony.

In

this way, the exhibits will not interrupt or detract


from the oral testimony.27

(j)

Listen to the answers of the witness. - You


should appear interested in the witness answers,
always maintaining eye contact with him. Appearing
interested carries over and infects the witness.
eliminates

any

suggestion

that

the

It

direct

examination has been choreographed and rehearsed.


It also helps you avoid mistakes and makes you alert
to unexpected answers of the witness.28

27
28

Mauet, T., supra note 12, p. 87.


Id., pp. 87-88.

15

(k)

Vary the pace or tempo of the examination. The danger of the trials degeneration into stultifying
monotony is ever-present.29 To avoid monotony, you
have to vary the pace, tempo or rhythm of your
examination. As suggested by one textbook:

Like music, a feeling can be developed


through rhythm, tempo, and modulation, short or
long questions, fast or slow questions, pauses
between questions, or raised or lowered voices.

sense of kinetic energy through the tone of the


questions, the pace, and the number asked will set
and continue a mood for action sequences.
speed

of

words

may

also

indicate

The

intensity.

Generally, effective direct examinations move quickly


through general information and more slowly through
the specifics of critical action.30

C.

Cross Examination
Effective cross-examination in a broad sense means one that

successfully accomplishes the goals of the cross-examiner or one the


net effect of which is to further his theory of the case.
29
30

Mogill, K., supra note 11, p. 90.


Songsteng, J., supra note 10, p. 216.

16

In a more concrete sense, a good or effective cross-examination


is one that highlights the facts that are favorable, diminishes the
credibility of the facts to be drawn from those that are unfavorable,
and introduces facts favorable to the theory of the case.31

The object of cross-examination must be to score as many useful


points as possible and, equally important, not to allow the witness to
score any points against the cross-examiners case. 32 In other words,
in scoring points, the cross-examiner must not become bloodied in the
process.

Even a cross-examination which scores only a relatively few


points but permits no points to be scored against the cross-examiners
case may be considered a good or effective cross-examination.

1.

The Need for Preparation

The decision to cross-examine cannot be intelligently made and


an effective cross-examination cannot successfully be carried out
unless the cross-examiner has prepared the cross-examination in
advance and has a realistic understanding of what he can expect to
achieve during the cross-examination of any given witness. The key, it
Pozner, L. & Dodd, R., Cross-examination: Science and Techniques, p. 297 (1993
ed.)
32
Id.
31

17

has been said a thousand times before, is thorough preparation before


trial.33

Preparation involves a complete mastery of the facts of the case.


This can only come from interviews of all the witnesses, verification of
their stories (including the clients), use of all the modes of discovery, a
study of all the relevant records and documents, consultations with
expert, investigation of the background of each witness, an analysis of
the pleadings, and all the preliminary work needed to have a thorough
knowledge of all the facts of the case.

As stated by Louis Nizer,

Preparation is the be-all and the end-all of the trial lawyer.

Based on his mastery of the facts and investigation of the


witnesses of the opposing side, the cross-examiner must prepare a
strategic plan for the cross-examination of each witness.

Cross-

examination must be planned primarily around the facts of the case,


the background and personality of the witness, the legal questions
involved, and counsels theory of the case.

He must study and

articulate in advance how the cross-examination of each witness will


further his theory of the case through the establishment of identifiable
factual and thematic points; these points will serve as the base around
which the cross-examination will be structured. 34 Simply stated, you
33
34

Mauet, T., supra note 12, p. 215.


Mogill, K., supra note 11, p. 137.

18

must know exactly what facts you want to elicit during the crossexamination of each witness.

It is especially important in preparing the plan of crossexamination of a witness that you note all prior inconsistent
statements taken by the witness as well as those that are inconsistent
with other witnesses. All fact showing bias or prejudice on the part of
the witness must likewise be noted. In sum, all points to be covered on
cross-examination must be prepared in a coherent way to facilitate the
courts understanding of the thrust of the cross-examination.35

2.

The risks involved

A famous trial lawyer in the U.S., Edward Bennet Williams, has


warned: You must think of [the witness to be cross-examined] as a
man with a knife in his hand who is out to stab you.

Cross-examination is, therefore, a risky undertaking. While some


lawsuits are won through brilliant cross-examination, more are lost
through inept cross-examination. It is a two-edged sword that may cut
both ways. In the words of Shakespeare, you may be hoist with your
own petard; cross-examination may explode in your own face.36
35
36

Aron, R., supra note 1, p. 85.


Palmer, B., Courtroom Strategies, pp. 90-91 (1959 ed.).

19

You must understand that cross-examination is a true art that


can only be mastered through study, training and experience.

You

cannot just read a book on trial and then step out and try cases.37

To undertake an effective cross-examination, you must have a


clear understanding of your objectives and how it will further the
theory of your case.

3.

Purposes of cross-examination

(a)

Purposes of cross-examination

Cross-examination has two basic purposes:

i.

Eliciting favorable testimony. This involves


getting the witness to agree with those facts
that support your case in chief and are
consistent with your theory of the case.

ii.

Conducting

destructive

cross-

examination. This involves asking the kinds


Goldstein, I., The Cardinal Principles of Cross-examination, published in the 1959
annual The Trial Lawyers Guide, pp. 331-332.
37

20

of questions that will discredit the witness or


his testimony so that the court will minimize
or even disregard them.38 To assail the
credibility of the witness, an attorney tries
to show flaws in the witness, as by showing
his conviction for a crime, or that he is
biased by reason of a close relationship to a
principal party, or that he has made prior
inconsistent statements.

In attacking the

testimony of the witness, an attorney tries


to show flaws in the testimony of the
witness,

as

by

showing

the

lack

of

opportunity for observation, or exposing


errors in the witness recollection.

Contrary to popular perception, the more important objective of


cross-examination is to elicit admissions favorable to the theory of the
cross-examiner or which will corroborate aspects of the crossexaminers own case.

You should always consider eliciting favorable testimony from the


witness before you attempt a destructive cross-examination.

Mauet, T., supra note 12, p. 218.

38

21

At the end of the direct examination, most witnesses will have


testified in a plausible fashion and their credibility will be high. This is
the time to extract favorable admissions and information from the
witness, since the witnesss credibility will enhance the impact of the
admissions. Such admissions will have less impact, and be less likely
to occur, if you have previously attacked the witness.39

Thus, you should not always undertake a destructive crossexamination. Remember that a destructive cross-examination is one
that attempts to discredit a witness or his testimony so that the court
will minimize or even disregard what the witness has stated. If you
have been successful in obtaining significant admissions, you may well
decide to omit any destructive cross-examination at all.

You cannot

have your cake and eat it too. It would not make sense to argue to the
court that a witness favorable testimony should be believed while the
part of the testimony you attempted to discredit should be disbelieved.
Accordingly, where the witness admissions have been helpful,
thereafter

conducting

destructive

undermine the admissions.40

4.

39
40

When to Cross-Examine

Id.
Id.

22

cross-examination

will

only

The decision to cross-examine cannot be intelligently made


unless you have thoroughly prepared your case and you have a
realistic idea as to whether you can achieve any of the objectives of
cross-examination. As stated by one author: The decision whether or
not to cross-examine a particular witness, and to what extent and with
what aims and methods, calls for appraising the advantages and
disadvantages and accepting a calculated risk.41

After a witness has finished his direct testimony, ask yourself the
following questions before automatically rising to begin your crossexamination:

(a)

Has the witness hurt your case? If the witness has


not hurt you, leave him alone.

(b)

Is the witness important?

Where the witness is

important to the other side or has a significant role in


the trial, you should undertake some type of crossexamination. If the witness is credible and you dont
have any ammunition, you may have to conduct a
cursory cross-examination on a peripheral point.

41

Keeton, R., supra note 3, p. 98.

23

(c)

Was the testimony of the witness credible?

If the

witness did not make a favorable impression upon


the court and if it is evident that both the witness
and his testimony are not believable, the better
policy is to leave well enough alone. In this situation,
as one author puts it, the damage has been done
before you can do anything42

(d)

Did the witness leave something out on direct


examination that might get in if there is crossexamination? It may happen that the witness (or his
lawyer) has forgotten an important part of his
testimony. In such a case, a cross-examination may
give the witness (or his lawyer) an opportunity to
repair these mistakes on re-direct.

It may well be

that the opposing lawyer is sandbagging, i.e,


intentionally

omitting

damaging

part

of

his

testimony on direct, hoping that you will pursue it on


cross.

This is a trap for the inexperienced lawyer.

Damaging testimony is twice as damaging if elicited


during the cross-examination.43

42
43

Mauet, T., supra note 12, p.216.


Id., p. 217.

24

(e)

What are your realistic expectations on cross? If you


cannot realistically score points during your crossexamination

because

you

dont

have

any

ammunition, you may consider foregoing crossexamination.44

For example, if you know that the

testimony given on direct examination is beyond


contradiction

and

no

possible

avenue

for

impeachment exists, it is unwise to cross-examine.45

(f)

What risks do you need to take? If you have a strong


and solid case, you should keep your risks to a
minimum; do not cross-examine unless you really
have to.

On the other hand, if your case is a

probable loser, you can throw caution to the winds


and conduct a risky cross, with the hope that you
might somewhat get lucky and turn the case
around.46

To repeat, the better part of discretion may be to say No crossexamination in such a way as to leave the impression that you attach
little importance to the testimony of the witness. This course of action

Id.
Schwietzer, S., Cyclopedia of Trial Practice, p. 614 (2 nd ed., 1970).
46
Mauet, T., supra note 12, p. 217.
44
45

25

is indicated where the facts in the case, and the testimony rendered,
leave you with no targets to aim at, no points to weaken or color.47
5.

Style of cross-examination

You should be yourself. Use the style that is natural to you, that
you feel comfortable with. Do not try to copy someone elses style.
The style that is natural for you will invariably be the one that is the
most effective as well.48

Ask your questions in a voice and manner that projects


confidence. If you appear confident and in control, you will be more
effective in eliciting from the witness the points you want to make.

You should also be a good actor.

Every cross-examiner, no

matter how experienced, careful, and talented, will get bad answers to
questions. When this happens, a good poker face is invaluable. Dont
react to a bad answer, no matter how damaging. Simply go on as if
nothing happened.49

Handle the witness on cross-examination in a kindly, friendly


fashion.

A fair and courteous manner is more effective than brow-

beating and ridiculing the witness. Make the witness feel that you are
Schweitzer, S., supra note 41, p. 606.
Mauet, T., supra note 12, p. 227.
49
Id.
47
48

26

merely trying to elicit further information from his end to make clearer
the testimony he has already given. Lull the witness into a false sense
of security so that his answers will be spontaneous and he will not
withhold information which he would otherwise disclose.50

The only exception to the rule that your demeanor toward the
witness should be an entirely friendly one is when you are crossexamining a perjurer. As advised by an authority on the subject: Be
mild with the mild, shrewd with the crafty, confiding with the honest,
merciful to the young, the frail, or the fearful, rough to the ruffian and
a thunderbolt to the liar.51

6.

Three Imperatives of effective cross-examination

An effective cross-examination can only be done through control


of the witness.

And control can be effected only by observance of

three imperatives of good cross-examination, to wit:

(a).

Ask only leading questions.

(b).

Each question must refer to only one new or additional

fact.
Weiss, S., supra note 7, pp. 116-117
David Paul Browns Golden Rules for Cross-examination, quoted in Wrottesley on the
Examination of Witnesses in Court, pp. 102-104, cited in 2 Francisco, V.J., Trial
Technique & Practice Court, pp. 783-785 (4th ed., 1999).
50
51

27

(c).

The questions must be directed toward a specific goal.

A cross-examiner who keeps in mind these imperatives will not only


score points against the witness but, equally important, will avoid
damage to his case. The objective in every case is to score as many
points as possible while simultaneously offering no opportunities for
the witness to score points.52

(a)

Ask only leading questions.

A cross-examiner must exercise the most powerful tool in his


arsenal: the right to conduct the examination through leading
questions.

A skillful cross-examiner never asks questions that begin with the


following: who, what, when, where, how, why and please
explain.

Theses words invite uncontrolled, unpredictable and

perhaps unending answers; these words invite the witness to seize


the action and allow the witness to insert a mishmash of facts,

52

Pozner, L., supra note 27, pp. 297-298.

28

opinions and stories designed to focus [the court] on the issues the
witness thinks most important.53

This is an oft-violated rule. Questions like Whats the next thing


you did? and Describe what the intersection looks like have no place
on cross, particularly where important testimony is involved. 54

You

should keep in mind that whenever a witness is given the chance to


give a long, self-serving answer, he will.55

Your leading questions must not only suggest the answer, but
must declare the answer. For example, instead of saying Do you
like to drink?, which in itself may already be considered leading, your
question should be phrased like a statement You like to drink, asked
in such a way that by your intonation and attitude, you make it obvious
to the witness what answer you are expecting. This question tells the
witness what answer you require; it declares the answer.56

During

cross-examination,

your

job

is

to

make

principal

assertions and statement of facts. The witness should simply be asked


to agree with each of your statements.

Pozner, L., supra note 27, p. 302.


Mauet, T., supra note 12, p. 224.
55
Pozner, L., supra note 27, pp. 298-299.
56
Id.
53
54

29

By phrasing your questions

narrowly questions that practically declare the answer you should


be able to get yes or no answers to each question.57

The leading question serves an additional purpose.

It enables

you to characterize certain facts more accurately or more dramatically


than the witness might describe them in his own words. For example,
without the use of a leading question, a witness might describe an
event as follows:

Q.

What did you do next?

A.

The police officer subdued the defendant.

As the cross-examiner, by using a leading question, you might cast a


different light on the affray:
Q.

The policeman smashed Mr. Arnold across the mouth with


his right stick, didnt he?

A.

Yes.

It is not likely that the witness would have volunteered the more
graphic description, preferring instead to recount the events in
relatively inoffensive terms. The leading question, however, forces him
to reveal the details.58
57
58

Mauet, T., supra note 12, p. 37.


Mogill, K., supra note 11, pp. 226-227.

30

Moreover, by use of the leading question, the cross-examiner can


use his own words to place the emphasis on the selected words. For
example, an open-ended question results in the following:

Q.

Did you put that in your report?

A.

No, I didnt.

The leading question, on the other hand, results in the same words, but
with a different emphasis:

Q.

Nowhere in your report did you ever mention that?

A.

No, I didnt.

In the leading question, you control word selection, tone of voice and
emphasis.59

(b)

Each question must refer to only one new or additional


fact

During cross-examination, you must ask only one new specific


fact in each question. To illustrate this, consider the following example
given by one author on cross examination:
59

Pozner, L., supra note 27, pp. 303-304.

31

(1.)

See spot?

(2.)

See Spot run?

(3.)

See Spot run home?

The initial question discusses one fact.

Each succeeding question

contains one additional or new fact to be added to the body of facts


established by previous questions. By this method, the scope of the
fact at issue is sharply controlled. As a result of the tight control over
the scope of the question, the permissible scope of the witnesss
answer is tightly controlled.60

For a more interesting illustration, the same author gives the


following example:

Suppose you ask the witness the following

question: Q. You saw the blue car come around the corner, and sped
through the red light? A. No. This compound question contains five
facts to which the answer No might apply. Does the No refer to the
color of the car, the speed of the car, or the color of the light? Did the
witness see anything at all?

To obviate all these ambiguities, your

questions must ask one new fact at a time:

Q.
A.
Q.
60

You did see a car?


Yes
It was blue?

Id., pp. 304-305.

32

B.
Q.
A.
Q.
A.
Q.
A.

Yes.
The blue car came around the corner?
Yes.
It drove through the red light?
True.
As it drove through the red light, it was speeding?
Yes.61

The technique is to ask short, plain, precise questions, referring


to only one specific fact in each question. Your objective is to establish
the facts bit by bit, point by point. Cross-examination is in part the act
of slowly making mountains out of molehills.

Dont make your big

point in one question. Lead up to each point with a series of short,


precise questions, adding only one new fact per question.62

If you confront the witness with a conclusionary question that


seeks to get him to recant what he has testified on direct, his natural
reaction would be to deny it. Dont ask the witness, for example, You
did not really see the pedestrian get hit by the car, did you?

The

witness will always give an unfavorable answer. The technique is to


ask him a series of short interrelated questions adding only one new
fact per question.

To show how it should be done, the following is an example


taken from a leading book on trial technique:

61
62

Id., pp. 306-307.


Mauet, T., supra note 12, p. 225.

33

Q.

Youre familiar with the intersection of North


and Clark?

A.

Yes.

Q.

In fact, youve driven through that intersection


over the past five years, havent you?

A.

Yes.

Q.

You usually go through the intersection on your


way to and from work?

A.

Yes.

Q.

So over the past five years, youve driven


through the intersection over a thousand
times?

A.

Probably.

Q.

You never saw a pedestrian hit by a car there


before, did you?

A.

No.

Q.

On December 13, 1995, the weather was clear


and dry?

A.

Yes.

Q.

The traffic was pretty much the way it always is


at that time of day, wasnt it?

A.

Yes, Id say so.

Q.

Nothing was going on that made you pay more


than your usual attention to the road?

A.

No.

Q.

In fact, just before the accident you were


thinking about what you were going to do at
work that morning, werent you?

A.

I might have been.


34

Q.

So the first unusual thing that you noticed that


morning was the sound of the crash, wasnt it?

A.

Yes.

Q.

And thats when you saw that someone had


been hit by a car, wasnt it?

A.

Yes.63

Note that by a series of interrelated, progressive questions


the cross-examiner has demonstrated that the witness was not
expecting a crash and really did not notice anything until after
the hearing of the crash. He has made his point by indirection.
Please note that there was no need to ask the question: So you
didnt really see the pedestrian before the crash, did you?.64
Another example: In an assault case, an eyewitness was asked
by the counsel for the accused who wanted to prove self-defense the
following question: Q. You saw the six-foot, five-inch 225-pound guy
with the bloody fists beat down on the five-foot, 155-pound boy with
the bloody face?

Even if the witness answered yes, the cross-

examiner lost the opportunity to create a truly memorable picture of


self-defense. Had the individual facts been put to the witness a single
fact at a time bit by bit, point by point. the cross-examiner could
have graphically portrayed the picture of a much bigger man beating
mercilessly a much smaller boy:
63
64

Id., pp. 225-226.


Id.

35

Q:
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
(c)

You saw the fight?


Yes.
John, the big guy, was fighting?
Yes.
John was six-feet, five-inches tall?
Yes.
John is a big man?
Yes.
Dave is only five-feet, seven-inches?
Yes
Dave is a much smaller boy?
Yes.
John weighed 225 pounds?
Yes.
Dave is 155 pounds?
About that.
John was a much bigger person.
Yes.
John was a much heavier person.
Yes.
And then John was hitting Dave?
Yes.
He was hitting Dave with his fists?
Yes.
He was hitting Dave in the face?
Yes.
John was hitting Dave, and his fists were bloody?
Yes.
And as you watched, you saw the blood on Daves face?
Yes.
You saw John beating down on Dave, in the face, with his fists?
Yes.65
The questions must be directed toward a specific goal.

All questions on cross-examination should be directed toward an


objective. Each of your questions should yield an answer which is part
of a sequence. At the end of that sequence lies your objective. Direct
65

Pozner, L., supra note 27, pp. 312-313.

36

your questions toward that objective. Nothing can be more futile or


more damaging than cross-examination that proceeds aimlessly with
no specific objective.

The cross-examiner without a definite objective in mind is like


the hunter lost in the words without a compass; he may get
somewhere eventually but the chances are that the experience will be
unpleasant.66

Each specific goal or objective of your sequence of questions


must be related to, focused on, and moving in the direction of your
theory of the case.67

7.

Other Cardinal Principles of cross-examination

In addition to the three imperatives of good cross-examination


already discussed, there are other cardinal principles of crossexamination that have withstood the test of time.

While these

principles can be ignored or violated in certain exceptional situations,


following them is usually the safest course of action.68
Fricke, C., Planning and Trying Cases, p. 372 (1951 ed.).
Pozner, L., supra note 27, p. 316.
68
The discussion is taken from the following: Mauet, T., supra note 12, pp. 218-226;
Wolf, A., Cross-examination on Trial, pp. 53-63 (1988 ed.); Bailey, F. and Rothblatt, H.,
Fundamentals of Criminal Advocacy, pp. 312-321; Schweitzer, S., supra note 41, pp.
66
67

37

(a)

Start and end crisply. Open with a flourish and end


with a bang.

Start with a question that grabs the

courts attention. The same rule applies to your last


question: make it an important point, make it
interesting, and make it crisp. Always end on a high
note and never with your tail between your legs. A
powerful and effective cross-examination should
always end with impact. This means that you have
to save your strongest points for the examinations
beginning and end, for what happens at these
moments is best remembered by the court. The last
questions must be such that they will require the
witness to admit facts favorable to your side of the
case. When you say That is all, you should do it in
a triumphant tone of voice.

(b)Know the probable answer to your questions before you


ask the questions. As otherwise stated, ask only
questions to which you already know the answers.
You should always play it safe; cross-examination is
not a discovery deposition.

The sole purpose of

cross-examination is to elicit favorable facts or


611-626.

38

minimize

the

impact

of

the

direct

testimony.

Consequently, never ask a question unless you know


what the answer will be, and that it cannot hurt you.
A violation of this principle means gambling with the
results.

(c) Listen to the answer of the witness. You should watch


the witness as he listens and answers, gauge the
witness reaction to your question and the tone of his
answer,

and

intelligently

formulate

follow-up

questions. Many lawyers do not follow this obvious


rule; they bury their faces in their notes, thinking
about the next questions while the witness is
answering the last one.

(d)Dont argue with the witness. Even if the answers of the


witness are not to your liking, resist the temptation
to argue with the witness. Arguing with the witness
is legally improper and unprofessional. And you may
end up being the loser.

(e) Dont ask one question too many.

When you have

scored your point, stop; once you strike oil, stop

39

digging.

You have made your point; be content to

leave it alone. Pass on to another subject. Do not


continue to press the witness on that particular point.
If you do, he may correct or modify his testimony,
and you will lose the advantage you gained.

(f) Have your cross-examination establish as few basic


points

as

possible.

Do

not

try

to

challenge

everything the witness says; this will detract from the


force of your important points. Attempting too much
on

cross-examination

will

invariably

create

two

problems: the impact of your strongest points will be


diluted and the less significant points will be
forgotten entirely by the judge at the end of the trial.
So stick with the strongest ammunition and avoid the
peripheral material.

(g)Dont repeat the direct examination. This may be the


most commonly violated maxim of good crossexamination. Do not ask the witness to tell it again
on the groundless hope that the witness testimony
will fall apart during the second telling.
approach almost invariably fails.

40

This

It only serves to

emphasize the witness story in the mind of the judge


and convinces him that the witness is telling the
truth.

8.

When to impeach and how to do it.

You should resist the impulse to impeach every witness your


adversary calls. You must first consider whether the net effect of all
the testimony of the witness is favorable or unfavorable to your
client.69 As I have already indicated, if you are able to elicit significant
admissions

on

cross-examination,

you

may

be

better

off

not

conducting any discrediting cross-examination at all.

Another

factor

to

be

considered

before

you

attempt

impeachment is the soundness of your basis for impeachment


whether it will probably be successful.

In the trial of lawsuits,

unsuccessful attempts are often worse than mere failures. The effort
to impeach is itself a charge against the witness. When impeachment
is unsuccessful, the position of the witness in the eyes of the court will
probably be improved, both because of his ability to withstand your
effort to impeach him and because of a natural inclination to
symphatize with one against whom false charges are made.70
69
70

Keeton, R., supra note 3, p. 99.


Keeton, R., supra note 11, pp. 99-100.

41

In the event, however, that you have strong impeaching material


in the form of prior inconsistent statements, an effective crossexamination should follow certain tried-and-tested techniques.71

(a)

The first step must establish the current version of the


testimony to be impeached. This is to remind the court of
the current version stated by the witness in his direct
testimony.

While establishing the current version to be

impeached, you must signal to the court that you are not
bringing up the subject merely to verify the direct
testimony but you are instead raising the testimony as an
issue to be disputed. Your question must have a set up
phrase that signals to the court that this is a different
story.

Example:

Q.

Let me see if I understand this: now you are telling


this court that you saw the accused stab the
complainant?

71

The discussion is principally based on the book of Pozner, L., supra note 27, pp.331349

42

Q.

What you are saying as todays truth is that you saw


the accused stab the complainant?

(b).

The second step is to tie the witness to the current version


of the fact to be impeached. You should irretrievably bind
the witness to the direct testimony in a series of leading
questions designed to show that the witness had an
excellent opportunity to make the observation to which the
witness is now testifying, or that the witness has no
question concerning the accuracy of his direct testimony
on this point.

(c)

The next step is to expose the inconsistent statement by


laying the proper foundation as required by Section 13,
Rule 132 of the Rules of Court. The inconsistent statement
must

be

related

to

him

[the

witness],

with

the

circumstances of the times and places and the persons


present, and he must be asked whether he made such
statements, and if so, allowed to explain them.

If the

statements be in writing, they must be shown to the


witness before any question is put to him concerning
them.

43

The laying of the foundation must not be done


mechanically.

The pace, phrasing and tone of the

foundational questions must provide information to the


court about the importance of the upcoming impeachment
and the attitude of the cross-examiner.

The cross-

examiner should always finish with what was said: finish


with the inconsistency.
before

the

orienting

Do not put the inconsistency


portions

of

the

foundation

of

impeachment.

The cross-examiner, in laying the foundation, must


also demonstrate to the court that the former inconsistent
statement was made under circumstances where the
witness had the desire and opportunity to be accurate.

The following example is from a criminal case, to


expose

an

inconsistent

statement

by

an

allegedly

dishonest witness.
Q:
A.
Q.
A.
Q.
A.
Q.

On March 13, 1986 you were interviewed by


Detective Sable?
Yes.
He questioned you at the Aurora Police
Department?
Yes.
He questioned you about this crime?
Yes.
With him was Detective Caplin?
44

A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.

(d).

Yes.
You knew why you were being questioned?
Yes.
You promised them you would tell the truth?
Yes.
You were being questioned about the death of
a man?
Yeah, Crown.
These detectives had your full attention?
Sure did.
So, when they asked questions, you made sure
to listen?
Right.
And then you answered their questions?
If I could.
And you answered truthfully.
As best I could.
They asked you if you were watching the whole
time as Crown was killed?
Yes.
But what you told the Detectives Sable and
Caplin that day is not what you swore to this
jury today?
No, it wasnt.
What you told the Detectives that day is this
(Madam prosecutor, I am at page 27, line 10 of
the transcript of the interview of March 13,
1986): question by Detective Sable: Did you
see your father hit him with the hammer?
Your answer, at line 14: No, no, I wasnt
looking, I was walking down the stairs when I
heard a noise and I turned around and Crown
was falling down the stairs.

The final step is to maximize the damage. It is not enough


simply to expose the inconsistent statement.

The cross-

examiner must now milk the situation to obtain the


maximum value from the change of story. This is not done,
however, by asking the witness why the story has changed.
What the cross-examiner should do is to prove the
45

reliability of the earlier version by establishing, through


leading questions, all the details and circumstances that
would make the court believe that the earlier version was
correctly perceived in the first instance.

9.

Cross-examination of various types of witnesses

The cross-examiner may have to adjust his style and techniques


depending on the type of witness under cross-examination.

(a)

Cross-examination of an evasive witness.

In the cross-examination of an evasive witness a witness who


avoids answering your questions directly your problem is whether
you should press the witness for a clear answer.

In resolving the

problem, you will have to consider the materiality and importance of


the question asked, the nature of the answer that the witness probably
will give if forced to a showdown, and the probable reason for the
reluctance of the witness to answer directly.72

If you think that the evasive manner of the witness testimony is


making a horrible impression on the court, you should not attempt to
squeeze better answers out of him. Instead, continue in the same vein
72

Keeton, R., supra, note 3, pp. 143-144.

46

and extract as many I cant remember, I dont know, Im not sure


responses as possible.

Try to get evasive responses to some of the

questions that the witness had no difficulty answering during the direct
examination.

Hopefully, the judge will see through the witness and

give little or no weight to his testimony.73

If you think that a direct answer to your question is important


and that the risk of a harmful explanation of the witness evasion is
slight and worth taking, what means should you adopt in pressing the
witness for an answer? One way is to make your questions simple and
pointed, so that you eliminate or at least reduce to a minimum the
opportunities for evasion.

If in the face of a simplified question the

witness is still evasive, you may decide to drop the matter after the
cross-examination has proceeded to a point that the evasion by the
witness is apparent to the court. Another way to compel the witness to
give a direct answer is to request the court to instruct or order the
witness to answer the question.

If you have asked a question that

cannot be answered categorically, your request to the court to require


the witness to answer would likely be denied, with detrimental effect
on your cross-examination. So if you have any doubt as to whether
your question is of the type that can be answered categorically, it is
generally better not to take the risk of asking the court for such an

73

Mauet, T., supra note 13 pp 264-265.

47

instruction. Judges generally will not give an instruction to the witness


unless the evasion by the witness is clear-cut.74

Another technique is to let the witness complete his evasive


answer and then request the court stenographer to read back your last
question, and then ask the witness Will you answer that question,
please? The technique can be both dramatic and effective. Although
you can expect your adversary to object on the ground that the
witness has already answered the question, the judge probably will not
sustain the objection if there is any doubt about whether the question
has been fairly answered.75

A good caveat to follow is this: If you are not absolutely sure


that the answer will be favorable to your cause, you are risking a great
deal by insisting upon an answer. The following is an amusing example
of what can happen if you force a witness to answer without knowing
the probable answer:

Q.
A.
Q.
A.
Q.
A.
Q.
74
75

Did you talk with your brother during the noon recess?
No.
Didnt I see you in the corridor, talking with your brother,
near the settee out there?
Oh, yes, he asked me a question.
What did he ask you?
(Pause) I dont want to tell you.
What did he ask you?

Keeton, R., supra note 3, p. 145.


Id., pp. 145-146.

48

A.

I told you I dont want to tell you, and you dont want to

know.
Counsel, addressing the Court: I wish you would order him to
answer the question.

The Court: Well, he told you that he didnt want to answer.


Now,
after the warning, do you want me to order him to
answer?

Counsel, addressing the Court: Yes, I do.

The Court: All right, Mr. Lipper, I am afraid you will have to
answer the question.

A.

(Witness folds his arms slowly across his chest, steps


back
in the witness stand, pauses, and then speaks.)

He asked me, Where did sister get that damn fool


who is trying the case for her?76

(b)
76

Cross-examination of a lying witness.

Goldstein, I., supra note 33, pp. 419-420.

49

There are four rules to be observed when cross-examining


a willful perjurer: (i) Adopt a superior attitude; (ii) Allow the
witness to testify freely (iii) Question him on collateral matters;
and (iv) Use the jump-around technique.77

You must impress the witness that he will be exposed as a


liar unless he admits the truth. Make him aware you are on to
his game, that you know what portions of his testimony are
untruthful.

Once you convince him of your potential ability to

expose his lies, he will lose his confidence and your task of
destroying his testimony becomes easier.78

You

should

allow

the

witness

to

testify

freely

and

encourage him to exaggerate. Give him the impression that his


testimony is damaging your client.

Then when it becomes

apparent even to him that his story is absurd, ask him to retract
and repudiate his earlier testimony.79

Since the untruthful witness is probably well prepared with


respect to his main testimony, you should question him on
Bailey F., and Rothblath, H., Successful Techniques for Criminal Trials, pp. 199-200
(1971 ed.).
78
Id., p. 200
79
Id.
77

50

collateral matters.

Inquire into facts which are not directly

connected to his main story and force him to resort to his


imagination.

More likely than not, his concocted answers will

conflict with the truthful answers given by other witnesses.80

The hop, skip and jump method of cross-examination


(shifting the subject of inquiry suddenly and frequently) is a
technique that you can effectively use in cross-examining an
untruthful witness. Since the witness has memorized his story,
you must destroy his train of thought by shifting from one
subject to another so as not to give him time to formulate
answers to fit his false story or if he does so they will be so
artless that you will be able to expose them.81

You should question the witness in rapid-fire fashion,


asking him on collateral matters and then skipping to some part
of his main testimony while his mind is on the other matter.
Then return to some fact not directly connected with his main
story.

With this way of questioning, the willful perjurer cannot

answer questions as fast as you can ask them and he cannot


keep his answers consistent with each other. You should not stop

80
81

Id.
Id, see also Keeton, R., supra note 3, p. 139.

51

until you have completely exposed the witness as a deliberate


liar.

(c)

Cross-examination of an expert witness

The dangers of haphazard cross-examination without


adequate preparation are accentuated when the witness is an
expert. The reasons are: (i) He knows more about his field than
the cross-examiner does; (ii) He is less hampered by rules of
evidence since his opinions and supporting arguments are
generally admissible; (iii) Frequently, he is a person of unusual
intelligence; and (iv) Often, he has experience in expressing his
ideas persuasively.82
Thus, the cross-examination of an expert should be
handled with extreme care and with definite objectives in mind.
It calls for extra preparations on your part.

You should confer

with your own expert as a general rule and seek his suggestions
concerning potential lines of inquiry that may be fruitful in your
cross-examination.

Also, you should read the literature in the

field to make you familiar with the subject and to look for sources
of potential impeachment.

Obtain a copy of everything the

expert has written or published.

82

Keeton, R., supra note 3, p. 155.

52

The first thing you should do is to check the qualifications


of the expert. Even if the witness has sufficient credentials to
qualify him as an expert, you should probe into the weaknesses
of his qualifications for the purpose of making his testimony less
credible.

A caveat is in order: make sure that your questions

regarding qualifications and experience do not strengthen the


credibility of the witness by supplying additional data omitted on
direct examination.

Your adversary may have deliberately

omitted such data with the purpose of leaving the witness more
qualifications to add if you should undertake to question his
expertise.83

When cross-examining an expert witness, never ask broad


questions which will allow him to expand his remarks made on
direct testimony.

Your questions should be sharp and direct,

calling for yes or no answers. Never allow the expert to turn


his answer into a lecture or discourse.84

The best way to attack the direct testimony of an expert is


to question the factual assumptions or factual parameters on
which his opinion is based. This is the area where the expert is

83
84

Id., pp. 160-161.


Bailey, F. and Rothblatt, H., supra note 76, p. 193.

53

especially vulnerable and where you should have an edge over


the expert.

The opinion and conclusions of an expert are valid only if


the data on which the opinion and conclusions are based are
themselves accurate. It may very well happen that the expert
based his opinion solely or principally on data and information
received from the client, and had made no effort to verify that
data or information. If you can show that the data and
information are inaccurate or incomplete, the experts opinion
and conclusion have no factual basis.

With respect to the factual assumptions upon which the


expert based his opinion, you can ask the expert if his opinion
would change if the assumptions were different.

If the expert

agrees, you can later argue that the other partys expert
supports your side since your assumptions are true. If the expert
disagrees, you can later argue that the expert is biased and will
never change his opinion regardless of the facts.85

You can also impeach an expert witness with the use of


learned treatises. Before doing so, you should first make the
witness commit to the direct examination testimony you want to
85

Mauet, T., supra note 12, p. 347.

54

attack.

Then get the witness committed to the authoritative

standing of the particular treatise before you produce the writing


itself for the expert to read and consider carefully.

Having

established the authority of the book, you may then read


selected passages contradicting his opinion (after having the
passages properly marked), or may hand him the book and ask
that he read the selected passages. 86

Then ask the witness:

Do you agree with the treatise? Regardless of the answer, the


witness is impeached.

Ref: Ahvic/Art of Effective Direct Exam @ May 15, 2003

86

Keeton, R., supra note 3, p. 158.

55