Civil Litigation Criminal Law Legal Topics Litigation Strategy Trial Strategy

Know When to Cross-Examine and Know When to Pass

witness_158992082There’s a time-honored “rule” that, if a witness hasn’t hurt your client’s case, don’t cross-examine the witness, just stay seated. But whether this injunction makes sense depends on the strength of your case and the possibility that the witness can actually help it. Here are some situations in which you’ll want to get up and cross!

Start off with the understanding that competent opposing counsel will rarely call a witness to testify without believing that the witness will help some part of their case. This means that most witnesses called by the opponent will hurt your case, even if only slightly.

If the witness doesn’t seem to have caused much damage to your case, you may be tempted to pass on cross-examination. This makes sense if the risk of examining the witness outweighs the potential gain. In that situation, you should definitely stay seated.

But there are times when it’s wise to examine a witness, even though your case hasn’t been hurt during direct. Here are some examples to keep in mind:

  • Know-nothing witness. The witness has been called to discredit one of your client’s co-parties but knows nothing implicating your client. This situation sometimes occurs in civil cases and often comes up in criminal trials. Here’s a typical low-risk examination of such a witness:

Q: Mr. Smith, isn’t it true that you met with the Green brothers over ten times, and each time you discussed the sale of heroin?

A: Yes.

Q: Isn’t it a fact that Charlie Green paid you each time you delivered uncut heroin to 312 Orchard Street?

A: That’s true.

Q: Would you please look over toward the table where I have been sitting during your examination. Do you recognize the man in the brown suit?

A. No.

Q: Never saw him before in your life?

A: Not until this trial.

Q: Isn’t it also true that neither of the Green brothers ever mentioned the name of my client, Charles Rogers, during any of your meetings with them?

A: That’s true.

  • Certainly helpful witness. In a civil case (with a deposition transcript), you may be certain that the witness will provide helpful testimony on cross-examination. If you’re certain, you should cross-examine. A jury will be impressed by testimony favorable to your client’s case coming from the mouth of a witness called by the opponent.
  • Rogue witness. If you have a sound intuition that cross-examination might be beneficial, risk it. Experienced attorneys will sense when an opponent’s witness isn’t running true to plan. But don’t be overconfident or take foolish risks on a hunch. For example, if a victim bank teller has been unable to identify your client (a jail-garbed defendant) as the stick-up man, don’t try to drive home the point through further cross-examination.

Learn about many more time-honored rules on cross-examination—and when to break them—in CEB’s Effective Direct and Cross-Examination, chap 4.

Other CEBblog™ posts on cross-examination:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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