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Controlling the Witness on Cross-Examination

Cross-Examination Skills
Cross-Examination: Fundamentals
Controlling the Witness on Cross
Michael J. Walter, The Litigation Manual, Trial, John G. Koeltl, John Kiernan, Editors, Section of Litigation, American Bar Assocation

The Ten Commandments

  1. Be Brief.
  2. Short questions, plain words.
  3. Always ask leading questions.
  4. Don't ask a question, the answer to which you do not
      know in advance.
  5. Listen to the witness.
  6. Don't quarrel with the witness.
  7. Don't allow the witness to repeat his direct testimony.
  8. Don't permit the witness to explain his answers.
  9. Don't ask the 'one question too many.
10. Save the ultimate point for summation.

1. Be Brief.

While at the first Northeast Regional National Institute for Trial Advocacy, I had the pleasure of attending a lecture given by Professor Irving Younger of the Cornell Law School. The lecture was entitled: "The Ten Commandments of Cross-Examination." Since then, through the magnetic marvel of videotape, thousands of trial lawyers and would-be trial lawyers have enjoyed and been instructed by Professor Younger's now classic performance. Using Younger's "Ten Commandments" as a standard, I propose to discuss certain techniques for controlling witnesses on cross-examination.

As a review for those of you who have heard, or read Younger's "Ten Commandments" (Litigation, Vol. 3, Number 2, Winter, 1977) and for the edification of those of you haven't, I here repeat them, albeit without the considerable embellishment, illustration, and explanation with which they were originally endowed by their author.

The Ten Commandments
1. Be brief.
2. Short questions, plain words.
3. Always ask leading questions.
4. Don't ask a question, the answer to which you do not know in advance.
5. Listen to the witness' answers.
6. Don't quarrel with the witness.
7. Don't allow the witness to repeat his direct testimony.
8. Don't permit the witness to explain his answers.
9. Don't ask the "one question too many."
10.Save the ultimate point of your cross for summation.

Every time a lawyer disobeys one of these commandments, says Younger, he will embarrass himself. And that is probably true. But the commandments command without telling us how to obey. What does Younger mean by "short questions"? How can I be sure of "always asking leading questions"? What techniques are available to me to avoid "quarreling with the witness" or "asking the 'one question too many'" or "permitting the witness to explain his answers"?

If Professor Younger's commandments could be summed up in a single phrase, I submit that phrase would be: On cross-examination, control the witness. My purpose here, then, is to answer some of the questions raised by Professor Younger's Ten Commandments to show you how to obey them by illustrating some methods and techniques for controlling the witness on cross-examination. We begin with Commandments 2 and 3.

2. "Short questions, plain words"

3. "Always ask leading questions"

To satisfy Younger's second and third commandments every question asked on cross-examination must be short and contain a leading phrase.

What is a "leading phrase"? If we can envision the words that we, as cross-examiners, wish to put into the mouth of the witness as castor oil, then the leading phrase which precedes or follows those words is analogous to the spoon upon which the dreadful medicine is carried. For example, we want the witness to say: "The light was red." That's the castor oil. To convey those words to the witness's mouth, we may use a variety of spoons or leading phrases, e.g., "Isn't is a fact that the light was red?" or "The light was red, isn't that correct?" or "The light was red, was it not?" The witness, you should note, does not answer the statement "the light was red"; rather, she answers the leading phrase: "Isn't it a fact that...."

The meaning and use of a leading phrase now clarified, what can I do to insure that it will always be preceded or followed by a "short question"? After much struggling with this problem, I have devised the following rules for always coming up with a "short question."

1. No question should contain more than one (1) new fact.
For example, we want to pin the witness down to the fact that when she saw that the light was red, she was sitting in her car listening to the radio while parked next to the curb. A "long" question might be: "Isn't it a fact that you were sitting in your car parked by the curb with the radio on when you noticed that the light was red?" We may ask that question and the witness may answer "yes" as we desire. However, it is equally possible that the witness may seize the opportunity to disagree with the order of the facts in the question and deny the statement, even though it is otherwise true. But, notice what happens when we limit ourselves to "short" or "one new fact" questions:

1. Q. You were in your car, were you not?
A. Yes.

2. Q. You were, at that time, seated, were you not?
A. Yes.

3. Q. And your car was then parked, was it not?
A. Yes.

4. Q. Parked next to the curb, isn't that a fact?
A. Yes.

5. Q. The radio was on, was it not?
A. Yes.

6. Q. And while sitting in your car that was parked next to the curb with the radio on, you noticed the light, did you not?
A. Yes.

7. Q. And the light was red, was it not?
A. Yes.

Wait a minute, you say. Question number 6 contained more than one fact. Indeed it did, but all the others contained only one fact and question number 6 contained only one "new" fact; i.e., "you noticed the light," all of the other facts contained in question number 6 had already been individually conceded by the witness.

2. No more than five (5) words per question, excluding the leading phrase and connecting words.

Review the seven questions above. Question 1 contains five (5) words and a leading phrase. Question 2 contains three "you were seated" plus a connecting phrase "at that time" plus a leading phrase, "were you not?" Question 3 contains four words: "Your car was parked," the connectors, "and" and "then" and a leading phrase, "was it not?" The analysis of the remaining questions is one that you should readily be able to do.

By using short questions, we exercise control over the witness. By obtaining his concession to each new fact necessary to our ultimate goal, we close off avenues of retreat which would otherwise be available to the witness as a means for defeating our chosen line of cross.

Further control over the witness is gained by using "plain words." Plain words are the speech of the common person. Avoid "legalese" or terms of art or multi-syllable words that may be uncommon to the language and beyond the comprehension of the witness and the jury.

If you don't watch the popular TV shows ─ and you may have many good reasons for not doing so ─ for entertainment, then watch a few of them for exposure to the kind of language which fits Younger's "plain words" injunction. Remember, the simpler the word, the less the opportunity for the witness to take some semantic exception to your intended meaning and, thereby, give you a "no" answer when your plan requires that he answer "yes." Bear in mind that the witness asks no questions; therefore, the choice of words is solely yours. Be as pinpointed in your choice as you possibly can be and you will be exercising your power over the witness to control his testimony.

4."Don't ask a question, the answer to which you do not know in advance"

6. "Don't quarrel with the witness"

7. "Don't allow the witness to repeat his direct testimony"

8. "Don't permit the witness to explain his answers"

When the witness gets out of control, the lawyer starts to feel frustrated and embarrassed. This frustration and embarrassment is most often expressed by quarreling with the witness and asking questions without knowing answers. How does a witness get out of control?

We have seen that a question that contains more than one new fact will enable a witness to justify sliding away from the answer sought. Similarly, a question asked in a non-leading fashion, without benefit of a leading phrase upon which the castor oil may be carried into the witness' mouth, also provides opportunities for escape from the control of the cross-examiner.

But, suppose our questions are short, plain, and leading; do any opportunities still remain? Yes, unless you:
a. Avoid the use of modifiers and generalizations; and

b. Avoid the phrase "you testified on direct examination that ..." or any reasonable facsimile of that phrase.

Avoid the phrase "you testified on direct examination that ..." or any reasonable facsimile of that phrase.

Let's take the number "b" first. Cross-examiners like things neat. They have, therefore, a desire to set the witness up for the devastating inconsistency that will follow by pinning witnesses to their previous testimony. What is forgotten, however, is that what witnesses said or did not say during direct is never relevant. What is relevant is the facts they described when they said what ever it was they said. In my twelve years in the courtroom, almost every time a lawyer has prefaced a cross-examination question with the words, "You testified on direct examination that ...." the response from the witness has invariably been: (a) "That wasn't my testimony"; (b) "I don't recall saying that"; (c) "You're trying to put words in my mouth"; or some such complaint. A "no" answer, whereas "yes" was expected is the other reply most often made. The expected "yes" almost never occurs.

There are other reasons why one should never use those phrases. Every time you do, you ask witnesses to repeat their direct testimony that, in and of itself, violates Commandment number 7. Since witnesses are now focused on the offensive statement they made on direct examination, you are inviting them to explain that statement as in "Oh yes, but what I really meant to say was ....", which violates the eighth Commandment: Don't permit witnesses to explain their answers." Finally, if you're afraid the jury won't recall the statement that the witness made on direct examination, then you probably don't have a basis for a cross on the statement to begin with. If you're sure the jury will recall the statement, then there is surely no need to repeat it.

Now, some of you may be thinking: Well, if a witness says she didn't testify to that statement or claims she can't recall it, I can ask the court to have the reporter read it back to her. That's true. It's also one of the most obnoxious, boring, time-consuming and ineffective approaches to cross-examination one can possibly take.

Every time a witness is able to escape a "yes" answer by claiming he doesn't recall or forcing you, by a "no" answer, to start a time-consuming search for the precise words he used on direct or, worse yet, by explaining away the devastating inconsistency before you even get started, that witness is out of control. By avoiding using the offending phrase, you are avoiding losing witness control.

You also avoid getting into a quarrel with the witness and, typically, her lawyer over what the witness has or has not testified to.

Avoid the use of modifiers and generalizations.

Other quarrels are started when the first of our two rules is violated and the cross-examiner inserts in her otherwise short and leading question a modifier or a generalization.

Consider these questions asked on cross:

1. Q. The radio played loudly, did it not?
2. Q. You saw him very closely, did you not?
3. Q. You always apply your brakes, do you not?
4. Q. You made a careful investigation, isn't that a fact?

In Question 1, the word "loudly" modifies the phrase "the radio played." Assuming for the moment that it is important, in terms of the argument you ultimately want to make to the jury that the radio was playing loudly; have you, by including the modifier, allowed an opportunity for the witness to escape, to go out of control?

Q. The radio played loudly, did it not?
A. Oh, I wouldn't say loudly.
A. What do you mean by loudly?
A. That depends.
A. As a matter of fact, I could barely hear it.

The modifier has become an escape hatch. If instead of using it, the cross-examiner had asked himself: What fact or facts make up the descriptive word "loud"? He might have restructured his cross in this fashion:

Q. The radio was on, was it not?
A. Yes.

Q. Had you turned it on? (Non-leading, because the answer literally doesn't matter)
A. Yes.

Q. You turned it on to listen to it, did you not?
A. I turned it on for background music.

Q. You turned it on to hear it in the background, did you not?
A. Yes.

Q. And you could hear it, could you not?
A. Yes.

Q. It was loud enough to hear, was it not?
A. Yes.

Q. Louder than the street noise, wasn't it?
A. Yes.

Q. Because you could hear it, could you not?
A. Yes.

Q. Above the noise of the traffic, did you not?
A. Yes.

Q. Above the noise of the people on the street, isn't that a fact?
A. Yes.

Q. It was loud enough to hear above the traffic and the people, was it not?

Now, the jury has the impression that the radio was playing loudly and the witness is still under control, where she belongs.

Understand that the witness on cross-examination is a witness primed to resist giving the examiner the answer sought. Accordingly, any opening permitted the witness is one of which the witness will invariably take advantage. Using modifiers and generalizations, before cutting off the paths of retreat, enables witnesses to take issue with the descriptions we attempt by the use of those words. It also telegraphs to the witness what it is we want the witness to say. When resistant witnesses know what it is we want them to say, in order to resist us, they must find a way to say the opposite or less than we require. When witnesses act from that resistance and say the opposite or less than we require, we often find ourselves in a quarrel with them. They are out of control and our carefully planned cross is lost.

Do I mean that you can never get away with using modifiers and generalizations in a cross examination question? No. You may use them, but only where you have first, with short questions and plain words, so committed the witness that a "no" answer to the question: "Isn't it fair to say then that you could see him clearly?" may only be viewed by the jury as an obvious, stubborn refusal to speak the truth.

Having mastered obedience to Commandments 2, 3, 4, 6, 7, and 8, how do we go about saving the ultimate point for summation (Commandment 10), and still make our point to the jury? What motivates us to ask "the one question too many" (Commandment 9). and how do we avoid doing it? How can we train ourselves to "listen to the witness" (Commandment 5) and, once attuned, how do we take advantage of the answers the witness gives?

9."Don't ask the 'one question too many'"

10."Save the ultimate point for summation"

In a sense, we have already covered the territory of the "one question too many." Often, that question begins with the phrase, "You testified on direct that ...." which we no longer use. Sometimes, the "one question too many" involves our use of a modifier or generalization before we have pinned the witness down to the underlying facts. But there are other times, when, almost in spite of ourselves, after controlling the witness handily, we rush headlong into the "one question too many." And, like the twenty game winner who knows, as soon as the pitch leaves his hand that the ball he has just thrown is going to be batted out of the park, we shout to ourselves, "Please let me have that one back!" Why do we do this to ourselves? What's the motivation?

Now, in a sense, isn't a cross-examiner like a baseball pitcher? The cross-examiner tosses a question at the witness. If the witness gives a "yes" or other expected answer, the examiner has pitched a strike. A series of such strikes culminates in a successful cross or a strike-out of the witness. A few bad pitches and the cross fails or, worse yet, the witness bats the ball out of the park.

A witness facing a cross-examiner is like a batter facing a premier pitcher. He is powerless and he knows it. His only hope lies in the chance that the cross-examiner will become over-confident and toss the witness a bad pitch that will enable him to score a run for his side of the case. All the power resides in the cross-examiner until, motivated by his subconscious desire to show the jury just how powerful his is, by letting the power go to his head, the examiner abuses it. As soon as that happens, watch out for a late-inning rally by the witness! So, how do we avoid abusing our power?

The first step is to recognize the problem. Once we admit to ourselves that there is potential for abuse of the power we hold in the dynamics of cross-examination, we can begin to watch for signs of its abuse. Secondly, we can and should plan each of our cross-examinations to evoke a Eureka! response from the jury.

"Eureka! response" is a phrase I coined in an article written for The Houston Legal Advocate in the summer of 1979. The article dealt with application of persuasive techniques to final argument. In it, I defined the Eureka! response as : "That satisfying glow of discovery when we are suddenly able to put all the pieces of the puzzle together." Why do you want such a response from the jury? Would it not be better to tell the jury the solution to the puzzle?

Any conclusion which we draw or arrive at ourselves is one which we are more likely to defend with vigor than not. On the other hand, most conclusions that we are told by others to draw create in us a feeling of resistance to which we respond by disputing the conclusion's accuracy. It is, therefore, both more powerful and less difficult to persuade listeners with their own conclusions than it is to persuade them with ours. If our goal in cross-examination is to lead the jury to a conclusion rather than confront them with one we can avoid asking the "one question too many," which usually contains the conclusion and, thereby, continue to control the witness while obeying the 9th Commandment.

Similarly, the 10th Commandment, which is really the 9th said another way, is also obeyed by always looking to evoke a Eureka! response from the jury. If the ultimate point comes from the mouth of the examiner, then there is nothing for the jury to say Eureka! about.

In summary, we will use the power given us by the dynamics of cross-examination to control the witness at all times. And, we will keep a constant vigil against abuse of that power by planning our cross-examinations to evoke Eureka! responses from the jury.

5. "Listen to the witness"

Listening to a witness may sometimes lead to the evocation of a Eureka! response in a cross-examiner. It happens usually when the witness, in a struggle to avoid being trapped by our cleverly-planned and phrased questions, says something which provides us with better fuel for our fire than even we had hoped for.

Too often, however, so involved are we in the conduct of the cross, in thinking our next question, that we miss the opportunity provided by the witness. Then too, many of us don't know how to handle an answer that does not fit our expectations or fall within the parameters of the one which appears underneath the written question in our prepared cross.

Consider the cross-examination conducted by a young lawyer at a recent NITA regional. The witness is Henry Fordyce, a young forest ranger who is suing two other young men for having assaulted him outside a bar. The cross-examiner has in his file Fordyce's arrest record, showing two prior arrests for drunk and disorderly conduct. The line he chooses to pursue is one calculated, he hopes, to show Fordyce was so intoxicated the night of the assault that his identification of the defendants is unworthy of belief. As we will see, shortly after he begins the cross, the witness goes totally out of control.

Q. You were with Ms. Long that night, weren't you?
A. Yes.

Q. Before you picked up Ms. Long, you were at Fenster's bar?
A. Yes.

Q. You were drinking at Fenster's, weren't you?
A. I don't know what you mean by "drinking."

Q. You had some drinks, didn't you?
A. No. I had two drinks.

Q. So you were pretty high, weren't you?
A. High, counselor? No, to the contrary.

Q. You had a lot of drinks, hadn't you?
A. If you consider two a lot.

Obviously, our young friend was not applying some of the control techniques we've discussed. But, perhaps more importantly, he was also not listening to the witness when the witness handed him a golden opportunity.

1.Q. You were drinking at Fenster's weren't you?
A. I don't know what you mean by "drinking."

2. Q. You don't know what I mean by drinking, do you?
A. No.

3.Q. But you know what drinking means, do you not?
A. Yes.

4.Q. And you knew what drinking meant in March of 1978, did you not?
A. Yes.

5. Q. And you were drunk and disorderly in March of 1978, were you not?
A. No.

6. Q. You do know what drunk means, do you not?
A. Yes.

7. Q. And disorderly, you know what that means, do you not?
A. Yes.

8. Q. And you knew the meaning of both those words on January 1, 1979, did you not?
A. Yes.

9. Q. And you were drunk and disorderly on that date, too, were you not?
A. I don't recall.

10.Q.You don't recall, do you?
A. No.

11.Q.But you do recall Fenster's do you not?

12.Q. You recall being there, isn't that right?
A. Yes.

13.Q. And you recall having a drink at Fenster's, do you not?
A. Yes.

14.Q. In fact, you had more than one drink, did you not?
A. Yes.

15.Q. Now, you understand that you were drinking at Fenster's, do you not?
A. Yes.

16.Q. And when a person drinks, he sometimes gets drunk, does he not?
A. Yes.

17. Q. And sometimes disorderly as well as drunk, true?
A. Yes.

18. Q. And sometimes he gets so drunk, he can't recall being drunk and disorderly, isn't that a fact?
A. No. (The answer doesn't really matter, does it?)

I make no pretense that the second cross was, in any way, a masterpiece. However, I do submit that it was one in which the examiner maintained control over the witness through-out and turned the witness' words about not understanding the word "drinking" against him while getting the answer he originally wanted and more.

How was this accomplished? Look at question number 2. Notice that the examiner took the words the witness used in the answer that preceded it and made those words into the next question. By doing so, the examiner forced the witness to answer "yes" and, at the same time, pinned the witness down to an indefensible position. Every time a witness gives an answer other than the expected "yes" or "no," he is giving vent to his need to avoid being trapped. Put another way, if the witness senses what it is you want him to say, he will, in all likelihood, equivocate on this answer. Whenever he does, he hands the examiner a perfect opening for just such an examination as demonstrated above.

How does this technique of using the witness' answer as one's next question help us to honor the 5th Commandment, "Listen to the Witness"? Well, for one it takes away the fear of not knowing how to deal with such an answer. Since in every instance, the witness' answer will become our next question, we no longer have to be overly concerned with the problem of thinking about what our next question will be. Also, if we don't listen to the witness, we won't hear his exact answer and without that, we can't effectively use this technique.

1."Be Brief"
We have now reviewed every commandment but one, the 1st Commandment. Using each as a standard, we have discussed techniques for controlling the witness on cross-examination and, in doing so, honoring those commandments. Professor Younger says that every time a trial lawyer disobeys one of his commandments, that lawyer ends up wishing the courtroom floor would open beneath his feet, swallow him, and hide him forever from further embarrassment. It is my hope that none of you will ever suffer that feeling and that these suggestions help keep you from that fate.

The 1st Commandment is "Be brief." As you can tell from the length of these remarks, I never learned how to honor that one.