The Art and Process of Cross-Examination: A Practical Guide

by Jim Crawford

As a seasoned trial lawyer, I’ve spent countless hours observing and participating in the intricate dance of cross-examination. While many consider effective cross-examination an “art,” a label that acknowledges the inherent skill and intuition involved, I firmly believe that it is, more accurately, a meticulously crafted process.

The term “art” often implies an abstract and somewhat elusive quality, suggesting that success in cross-examination hinges on innate talent rather than learnable techniques. However, by viewing cross-examination as a “process,” we emphasize the importance of preparation, strategy, and a systematic approach that can be honed and refined over time.

This process begins long before entering the courtroom, demanding diligent preparation and a lawyer’s keen imagination. There’s simply no substitute for dedicating time before trial to carefully plan your line of attack. At a minimum, you need to meticulously outline specific areas and facts you can address to drive home your key points. And if you have documentary evidence, such as transcripts, reports, or other relevant materials, you must thoroughly analyze how they can be strategically integrated into your cross-examination.

During the heat of trial, maintaining focus and delivering your carefully crafted points in a logical order can be challenging. Therefore, it is important to develop personal techniques and a style that allows you to efficiently navigate the evidence and points you intend to make with the witness.

For example, when utilizing a police report during cross-examination, I’ll often color-code specific language to highlight key details and directly challenge the witness’s credibility. I also create readily accessible notes to help me quickly recover my bearings if I momentarily lose my train of thought.

Here, I’ll share some key elements for building an effective cross-examination. However, remember that thorough preparation alone cannot replace the impact of the examiner’s attitude, body language, voice inflection, courtroom presence, and eye contact. Convincing the trier of fact that you are genuinely seeking the truth can be the deciding factor between victory and defeat.

1. Preparation: The Foundation of Effective Cross-Examination

Thorough preparation is the bedrock of a successful cross-examination. It allows you to anticipate potential challenges, identify weaknesses in the witness’s testimony, and craft a compelling narrative that supports your case. Consider these key aspects during your preparation:

• Plan Ways to Impeach Credibility: Identify inconsistencies, contradictions, and biases that can undermine the witness’s believability.
• Determine Your Attack Strategy: Decide whether an aggressive or more subtle approach is appropriate based on the witness’s demeanor, the nature of the testimony, and the overall case strategy.
• Extract Favorable Facts: Identify any facts or statements that support your case, even if they are buried within unfavorable testimony.
• Identify Key Issues and Facts: Define the specific issues and facts you need to elicit from the witness to bolster your case.
• Master the “5 Ws and H”: Thoroughly investigate and understand the who, what, when, where, why, and how of the events in question.
• Scrutinize Discovery Materials: Review all relevant documents, depositions, and interrogatories to uncover inconsistencies and potential areas for cross-examination.
• Investigate Social Media: Explore the witness’s online presence for potential biases, contradictory statements, or information relevant to their credibility.
• Define Your Overall Goals: Determine what you want to achieve through the cross-examination.
• Choose Between Constructive and Deconstructive Cross: Will you build your own narrative, or tear down the witness’s?
• Uncover Bias: Identify any potential biases or prejudices that may influence the witness’s testimony.
• Highlight Prior Favorable Acts or Statements: Identify any prior actions or statements made by the witness that support your case.
• Create a List of Major Points: Develop a clear and concise outline of the key points you want to cover during the cross-examination.
• Review Prior Testimony and Reports: Thoroughly review any previous testimony or reports given by the witness to identify inconsistencies and potential areas for impeachment.
• Embrace the Theater: Recognize that the courtroom is a stage, and your performance can significantly impact the jury’s perception of the witness and the case.
• Set Specific Goals: Aim to make the trier of fact distrust, dislike, or even harbor animosity toward the witness, if appropriate.
• Elicit Confessions or the Truth: Aim to extract admissions or truthful information from the witness that supports your case.
• Disrupt the Witness: Aim to confuse, irritate, anger, or emotionally unbalance the witness to disrupt their planned narrative.
• Master Non-Verbal Communication: Be mindful of your body language, facial expressions, and tone of voice, as these can significantly impact the jury’s perception of your credibility and the witness’s demeanor.

2. Laying the Foundation for Discrediting a Dishonest Witness

When confronting a witness you believe is being dishonest, it’s vital to carefully construct each question to create a foundation for challenging their credibility.

• Establish a Logical Sequence: Organize your questions in a clear and logical manner to guide the witness toward key admissions.
• Start with a Conversational Tone: Begin by engaging the witness in a normal, non-confrontational tone to put them at ease.
• Thoroughly Review Written Statements: Carefully cross-examine the witness regarding any written statements they have made, such as police reports.
• Explore Prior Testimony: Scrutinize any prior testimony given by the witness, looking for inconsistencies and contradictions.
• Secure Agreement on Factual Points: Gently lead the witness toward agreeing on key facts to establish a baseline for comparison.
• Have the Witness Read the Report: Have the witness read aloud relevant portions of the report to emphasize key details.
• Emphasize the Signed Oath: If the report is signed under oath, highlight this fact to underscore the seriousness of the witness’s statements.
• Confront Contradictions: When you catch the witness in a contradiction, directly ask, “Did you intend to deceive?”
• Consider an Immediate Attack: In some cases, it may be strategically advantageous to immediately confront the witness with inconsistencies or lies.
• Find Weakness and Contradictions: Carefully review the facts as you cross-examine, looking for weaknesses and contradictions in the testimony.
• Preview Your Closing Argument: Frame your questions in a way that subtly previews the arguments you will make during closing arguments.
• Find the “Hook”: Find the strongest argument to support your case.
• Use Silence Strategically: Use periods of silence to create tension, unsettle the witness, and allow the jury to reflect on the witness’s answers.

3. The Power of Eye Contact

Maintaining appropriate eye contact is a crucial element of effective cross-examination.

• Engage the Jury: Make eye contact with members of the jury to build rapport and convey sincerity.
• Respect the Judge: Acknowledge the judge with respectful eye contact.
• Confront the Witness: Use direct eye contact with the witness to convey confidence and challenge their credibility.
• Project Sincerity: Use eye contact to project an image of honesty and a genuine desire to uncover the truth.

4. Ask Leading Questions—”Not Really”, but Kinda!

To maintain control over the witness and guide their testimony, use leading questions that suggest the desired answer.

5. Establish Uncontestable Facts

Begin by establishing a fact or issue that the witness cannot reasonably dispute. This creates a foundation for building your line of questioning and weakens the witness’s credibility if they later contradict themselves.

6. Don’t Always Attack

While it’s important to challenge the witness’s testimony, avoid attacking them unnecessarily. A relentless attack can alienate the jury and make you appear aggressive or unfair.

7. Reveal Bias, Prejudice, and Motive

Your primary objective is to reveal any biases, prejudices, or ulterior motives that may explain why the witness is either lying or mistaken.

• Consider Potential Mistakes: Explore the possibility that the witness is simply mistaken due to faulty memory, perception, or observation.
• Assess Intentional Deception: Determine whether the witness is intentionally lying to protect themselves or someone else.
• Uncover Hidden Biases: Identify any biases that may be influencing the witness’s testimony, such as personal relationships, financial interests, or political beliefs.
• Acknowledge Prior Statements: Acknowledge that the witness spoke to the police and believes what they are saying is true even if it is not.
• Question Perfected Facts: Question the witness on if they went over the testimony with authorities and now they have perfected their facts.

8. Lay the Groundwork in Your Opening Statement

In some cases, it can be strategically advantageous to foreshadow your cross-examination strategy in your opening statement. This prepares the jury for the challenges you will make to the witness’s credibility.

9. Techniques for Effective Cross-Examination

Employ a variety of techniques to maintain control over the witness, engage the jury, and effectively present your case.

• Maintain Control: Keep the witness focused on your questions and prevent them from rambling or offering unsolicited information.
• Engage in Conversation: Create a conversational tone to build rapport with the witness and make them more receptive to your questions.
• Start from the Beginning: Begin by revisiting the witness’s initial statements or actions to establish a foundation for your cross-examination.
• Repeat Key Statements: Repeat some of the statements made during direct examination to highlight inconsistencies or contradictions.
• Utilize Body Language and Voice Inflection: Use nonverbal cues to emphasize key points, convey skepticism, or challenge the witness’s credibility.
• Vary Your Tone: Raise or lower your voice to create emphasis, convey emotion, or draw attention to specific points.
• Use Dramatic Gestures: Employ dramatic gestures, such as pounding the table, pushing a chair, or holding up a piece of paper, to create impact and emphasize your points.
• Change Cadence: Change cadence by asking a question.
• Use Diagrams: Draw diagrams when possible.
• When Possible, Highlight Evidence: Pick up evidence when possible.
• Ask Witnesses to Refer to Evidence: Ask witnesses to use the evidence to show how it occurred.
• Testifying and Getting the Witness to Agree: You are basically testifying and getting the witness to agree
• Be a Friend, Change and Attack: Be a friend, be nice, change and attack, go back and be a friend, attack again, etc.

10. Expert Witnesses vs. Lay Witnesses

Cross-examining expert witnesses requires a different approach than cross-examining lay witnesses.

• Master the Subject Matter: Thoroughly understand the expert’s field of expertise and the specific opinions they are offering.
• Look for Other Material to Cross: Look for other information to cross the witness.
• Challenge the Hypothesis: Use a hypothesis to make your point.
• Challenge Relevance: Find reasons why their opinion does not matter or apply here.
• Use Other Experts: Consult with other experts in the field to identify weaknesses in the witness’s methodology or conclusions.

Conclusion

Becoming proficient in cross-examination requires dedicated practice and real-world experience. The more opportunities you have to stand on your feet, ask questions, and adapt to unexpected responses, the more confident and effective you will become in the courtroom.