Don’t Do This on Cross Examination

cross examining a witness

Many attorneys work through their nervousness by beginning their cross examination with taking the witness step by step through previous direct examination testimony. Then they turn to the hard job of true cross-examination. Here’s why you shouldn’t do this.

The jury will be more likely to believe (and remember) statements they hear two, three, or four times. Don’t give the witness the chance to give direct testimony twice to the jury by starting your cross with it. You’ll be helping your opponent.

But there are exceptions to this general rule. You may need to start with the direct examination testimony if the witness:

  • Has a bad memory. If the witness has a terrible memory and is likely to vary from prior testimony, you should go over previous material to test the witness’s memory and expose narrative shortcomings.
  • Lied on direct. If the witness has set him or herself up for impeachment by lying in direct examination, you may want to pin down the testimony, and get it repeated, before showing it to be false. This is the safest approach if the witness has testified from notes or some written records that should guarantee that the perjured testimony will be repeated again.
  • Is repeating counsel’s words. If a witness has been force-fed lines by opposing counsel and repeats them in rote fashion, taking the witness through the testimony again on direct examination could emphasize the memorized quality of the testimony to the jury.

Unless one of these exceptions applies, it’s always best to begin your cross examination strong—it’s the time to go for the jugular.

Get expert guidance on crafting your cross in CEB’s Effective Direct and Cross-Examination, chap 5 and in CEB’s program Evidence: Tips for Effective Direct and Cross Examination.

Other CEBblog™ posts on cross examination:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

One thought on “Don’t Do This on Cross Examination

  1. Pingback: How to Control an Expert Witness | CEBblog™

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