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Cross-Examination Fundamentals

 
   
Cross-Examination Skills
Cross-Examination: Fundamentals
Controlling the Witness on Cross

Resources

Four major uses of cross-examination
• Establish areas of agreement that support
your case theory

• Set up your closing

• Credentialize your witnesses

• Discredit opposing witnesses

Do's and don'ts in conducting a cross-examination
• Be prepared

• Be brief

• Use simple language for your questions

• Don't argue with the witness

• Ask only leading questions

• Know the answer to the question you ask

• Listen to the answer

• Don't allow the witness to explain if you can
prevent it

Nine modes of impeachment
• Able to take the oath?

• Observed something?

• Remembers it?

• Relates it?

• Prior conviction?

• Prior bad acts?

• Interest, bias, motive in case?

• Prior inconsistent statements?

• Reputation for lack of truth?

Control methods
Pace and rhythm

• Form of question

• Position and body language

Preparing Cross
Determine goals

Select topics

Sequence topics

Write out questions

Anticipate objections

Use preparation forms in Trial &
Hearing Notebook

• Determine goals
Decide what you want to establish from the witness on cross-examination. Do you want to gain additional evidence for your case, discredit the witness or both? Your goals must be consistent with your overall case theory and strategy.

• Select topics
Your topics must be consistent with your goals. If your goal is to discredit the witness, choose one or two impeachment modes. If you want to establish favorable evidence for your case, what points do you want to establish?

• Sequence topics
Put the topics in the order you will pursue them with the witness. You must walk the line between making your points clear enough for the decision maker to follow and telegraphing your goal to the witness. At this stage you should also decide if and when you will use documents.

• Write out questions
In a destructive cross, all of your questions should be leading questions. Your questions should be short and plain with one new fact per question.

• Anticipate objections
Anticipate any objections the judge or the opposition may make. Develop responses to them.

• Use preparation forms in Trial & Hearing Notebook