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Cross Examination Tips

Preparation

  1. Identify Government witnesses ASAP
    • Check court's file for Government subpoenas
    • Motion to disclose experts
    • Get discovery early
  2. Learn what they will say before they testify
    • Lock them in
    • Get info that helps your case
    • Get told to go you know where? Perfect!
    • Meet with officers/investigators for other undocumented statements - Do not trust that reports/affidavits are complete! Did any witnesses get blown off by the investigator?
  3. Gather evidence to cross with
    • Criminal history
    • Prior statements for impeachment ask your witnesses about letters, phone calls, anything with the Government's witness
  4. Prepare an outline - Do not script!
    • Give yourself time to think - bounce ideas off of other people - knowing what makes sense is easy but explaining it is hard
    • Have goals for each witness -
    • Do not go overboard
    • What MUST this witness agree with - good questions
    • Set up your argument - don't give it
    • Incorporate the witness's testimony to respond to ridiculous answers
    • Organized exhibits/affidavits - have a copy of every exhibit you need with your outline, or get the materials from evidence organized so you are not fumbling - the jury is watching

At Trial

    1. Don't freak out even if you are reeling from a surprise witness.
    2. Get what you can and stop - most damage on cross is self-inflicted
    3. Silent Cross-Examination - There are many instances when the most brilliant cross-examination consists of "Thank you, your Honor, no questions." Recognize those instances and overcome the compulsion to cross-examine every witness.
    4. The Harmless Witness- When a witness has not hurt your case, there is little to win and a lot to lose by cross-examining that witness.
      • The witness who was ineffective during direct testimony may recover during cross-examination and offer testimony that is even more damaging to your case because it comes out on cross-examination.
      • By cross-examining, you give opposing counsel the opportunity to redirect, rehabilitate the witness, and elicit adverse testimony.
    5. The Unimpeachable Witness - Some witnesses are totally unimpeachable. They are giving factual accounts and honest testimony. You can't touch them. If you can elicit no evidence on cross-examination to either bolster your case or hinder the Government's case, do not give the unimpeachable witness the opportunity to reiterate the damaging testimony, either on cross or redirect.
    6. Avoiding traps
      • When an opposing witness fails to testify on direct examination to a known, important fact that is detrimental to your case, you should be alert to the possibility of a trap. A good lawyer may choose not to elicit the evidence on direct examination to allow the testimony to emerge during cross-examination or for re-direct, thereby giving it more impact.
      • You can stop this by either (1) avoiding the subject matter or (2) if otherwise appropriate, choosing not to cross-examine, thereby also denying opposing counsel the opportunity to elicit the evidence on redirect.
    7. Start strong/finish strong - Also, pay attention to breaks, too day, lunch, coffee, etc.- good to finish strong every time you can before breaks - not just the testimony as a whole.
    8. Avoid open-ended questions such as "why" or "please explain." - unless there is no good answer
    9. Don't go back over direct.
    10. Don't ask questions you don't know the answer too - unless there is no good answer
    11. Don't give an argument of your theory of the case. It is irritating and ineffective. Cross is not argument. You are highlighting information that helps your case or hurts the Government.
    12. Don't repeat the witness's answers as a preface to the next question. It breaks the rhythm of the cross.
    13. Don't begin each question with "now, let me ask you this question . . . ." or other filler
    14. Bolster your case at the beginning - get your agreements before you discredit - you can't ask the jury to believe them after you have ripped them.
    15. Don't begin cross-examination of the witness on the last matter covered in direct - have an order that you have established
    16. Highlight circumstances that show reliability of prior statements when impeaching. Don't drag it out, but make sure the jury knows how, where, and when a statement was taken. Whether it was written, under oath and how soon it was given after the offense are important factors.
Be brief. A question that does not advance your case hurts it. The jury will not remember a great deal of the testimony of any witness. Limit cross to those few points or areas that are critical.
  1. Don't hide the key questions by presenting them in the midst of a lengthy cross-examination. Throw in a good pregnant pause if you have to after a zinger.
  2. Always consider quitting while you are ahead if you reach a climactic point - such as impeachment of the witness or the witness's admission of a vital point.
  3. Limit the Talkative or Evasive Witness
    • objection non-responsive/ask to court to instruct, or
    • keep asking the same simple question over and over to make a point
    • However - Avoid the appearance that you will not allow the witness to fully answer the question or that the witness is being treated unfairly. Explain to the witness that his counsel can permit him to fully explain his answer during redirect examination but that it is important on cross-examination to follow the rules and simply affirm or deny your questions.
  4. Listen to the witness's answers and go off the outline - Don't ask a well-planned question and immediately move on to the next point on your outline without listening to the witness's answer. They may open themselves up to a lot more. The ultimate big question they may be ready to answer. The improvised follow-up questions is where you can usually pick up ground.
  5. Control your temper
  6. Avoid Animosity (for the most part) - you get more bees with honey - the most effective cross-examination is usually courteous
  7. Be calm, rational, and unemotional
  8. Save your righteous indignation, even controlled rage, for the right moments. Don't have it on all the time. You can lose a jury.
  9. Don't jump down someone's throat immediately unless the witness is an outright scumbag. The jury starts out sympathizing with the witness (having to get up there and be under fire, etc.).
  10. Do not disappoint jurors with a boring, repetitious, and meaningless cross-examination. They will hate you. Jurors are captives in the jury box. They can't speak or express themselves. They have nothing to do with their time but observe the small details of the trial. They are judging you every minute, so don't waste their time.
By Brian Corrigan
Board Certified Dallas Criminal Defense Attorney
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