Cross-examination of a witness is a critical part of trial. An effective cross-examination can strengthen your case by bringing out favorable information, undermining and/or attacking the witness, and getting fresh discovery (particularly in criminal cases).
Master trial attorney James Brosnahan offers these ten tips for acing cross-examination:
- Use short, simple, leading questions with four to six words. “You wrote the letter, didn’t you?”
- Refrain from using open-ended questions such as, “Why?”
- When impeaching a witness with a prior inconsistent statement, consider using the phrase, “Did you give this answer to this question?” You then read the question, the answer and stop. Simplicity is the essence of good impeachment. Breaking the questions to their smallest parts very often will increase chances of success and add to the dramatic flow.
- Before trial, make a thorough personal search of the case files looking for cross-examination material.
- As a general rule, impeach on major points. An exception would be the cross-examination of an accountant, where precise detail work is important.
- Impeach with a prior inconsistent statement only when the chances of success are good. A prior statement in the handwriting of the witness would be a prime example.
- Foreclose all explanations that the witness might give before confronting with the main point or impeaching material.
- Plot out possible responses that may be given during the key areas of the cross-examination and frame questions that can be used depending on the answer.
- Don’t overestimate the impact of a felony conviction because jurors sometimes discount them.
- Once you have impeached the witness and gained a major advantage, stop and sit down.
For more on cross-examination techniques, go to CEB’s ever-popular Effective Direct & Cross-Examination.
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