THE COMMANDMENTS OF CROSS-EXAMINATION: A BAKER'S DOZEN
INTRODUCTION: SILENT PARTNER is a lawyer-to-lawyer resource for military trial attorneys. It is an attempt to explain broad generalities about trial advocacy. It is, of course, very general in nature since no handout can answer every specific question. Comments, corrections and suggestions regarding this pamphlet should be sent to the address at the end of the last page.
A. View of trial by the average person
B. What happens in reality
1. Need for full and zealous trial preparation
2. Need to know before the first witness takes the stand what you will say about his credibility in summation
3. Keys to effective cross-examination:
a) Do it only as needed to bring out necessary facts about the substance of the case (elements of one side or the other) or the credibility of that witness...
b) Then stop
C. When you do need to cross-examine, how should you go about it? Here are a set of guidelines that will help to make each cross-examination reasonably effective.
II. The 13 Commandments
A. #1 -- When in doubt, DON’T!
1. Some lawyers think there’s a professional duty to cross-examine every witness.
2. There isn’t. There is, however, a duty not to screw up the case -- and that’s what you’ll do if you cross-examine a witness when you don’t have to!
B. #2 -- K.I.S.S. is the rule -- Keep It Short and Simple.
1. Cross-exam is a commando raid, not the invasion of Normandy
2. Don’t overdo it... limit your cross to only what is necessary to bring out the point you want to make.
3. Keep in mind the limited amount of information that the judge or jury can absorb
4. How NOT TO EXAMINE: Take a look at this question that Robert Jackson, the chief U.S. prosecutor, asked Reichsmarschall Hermann Göring in the Nuremberg war crimes trial:
"Now, was the leadership principle supported and adopted by you in Germany because you believed that no people are capable of self-government, or that you believed that some may be, but not the German people: or for that matter whether some of us are capable of using our own system but it should not be used in Germany?"
C. #3 -- Use the English language, NOT legalese, in short questions.
1. “Did you sign a codicil to that will?” vs. “Did you sign a written change...?”
2. “How did you drive your car?” NOT “What did you then do in respect to the operation and control of your motor vehicle?”
D. #4 -- Always ask leading questions.
1. On direct, no leading questions (with lots of exceptions)
2. On cross, the best advocates ask only leading questions
a) What is a leading question? One that suggests the answer, puts words in the mouth of the witness.
b) You tell the whole story; the witness only confirms the accuracy of it.
3. Never ask: “Why did you do that?” or “What happened then?” Exercise control over the witness, testify for him or her.
4. Never let the witness explain his or her answer.
E. #5 -- Ask only questions to which you know the answer.
1. This is not a pretrial interview or a deposition
2. You are not an investigator at the trial -- you’re trying to get information that you can use in summation: either substantive facts to argue or else points about a witness’ credibility
3. If there are damaging points that exist, they’ll come out when you’re fishing for answers
4. Remember the 3S Rule -- cross-exam is a Search for Support for Summation. Elicit information on cross to support your final argument.
a) If you don’t care what the answer is...
b) “Escalating” or “closing doors”
F. #6 -- Never let the witness repeat his direct testimony.
1. Rule for the jury: If they hear it once, it may be true. If they hear it twice, it’s probably true. If they hear it three or more times, it’s unquestionably true!
a) To “set up” the witness (e.g., prior inconsistent statement)
b) When you really know what you’re doing!
3. When it’s “unclear,” don’t clarify!
G. #7 -- Listen to the answer you get.
1. Over and over again, a good lawyer gets a great answer on cross-examination -- and then does nothing with it: doesn’t pursue the witness, doesn’t mention it in summation. Why?
2. He or she didn’t listen to the answer… perhaps didn’t even hear it!!
3. Reason: the turmoil of trial
H. #8 -- Don’t quarrel with the witness.
1. This is not a rule of evidence, but it’s certainly a “commandment” for all good advocates
2. Don’t give in to the temptation to “beat up the witness” -- more than likely, you’ll only generate sympathy for him or her
3. If the answer is contrary to the rules of the universe, don’t argue about it; save it for summation.
4. Don’t signal anything to the witness or he’ll wiggle out of his answer
I. #9 -- Don’t ask one question too many.
1. This is not in the law of evidence... but it’s certainly part of “the lore of the courtroom.”
2. When you’ve made your point, stop and indicate to the judge that you’ve finished.
3. How will you know when you’ve asked “one too many”? Answer: you’ll know it as soon as you ask it!
J. #10 -- Save it for summation.
1. You’ll never have the witness arguing with you when it’s time for final argument.
2. He or she cannot explain or clarify the answer given.
3. You can’t be contradicted by the witness
K. #11 – Do only one “fact” per question.
1. Avoid compound questions: “Did you drive down Romerstrasse and hit two pedestrians?”
2. Using only one fact per question makes it hard for the witness to be evasive. If the witness is asked the above question, he can always give a denial and then you have to go back and break it down into its individual components to confront him with each.
L. #12 – Avoid “value” words or conclusory terms.
1. Don’t ask, “Isn’t it true that you rarely return to the barracks before 2300 hours?” The witness, having seen the Clinton impeachment hearings on TV, will probably respond, “What do you mean by ‘rarely’?”
2. Do you really want to debate this with the witness? Do you think the jury cares? Or can even stay awake while you do?\
3. Be specific – “On only one occasion during the week of June 1 did you return to the barracks before 2300 hours, right?” “And the week before, the same thing occurred, right? – that’s the way to ask this question properly.
4. Also remember that juries like to reach a conclusion themselves – so give them enough facts to let them do just that. They don’t like to be told what to conclude.
M. #13 – Work from the specific to the general.
1. Start with specific questions, then work toward a general conclusion.
2. Don’t say, “Isn’t it true that you dislike SSG Rivera?” Again, you have a wonderful opportunity for an argument here, and that’s not what cross-exam is all about.
3. Instead, try asking about specific instances of conduct: “Didn’t you spill ink on his desk while he was at PT?” “Isn’t it a fact that you and SGT Smith stole his room key last month?” Then let the panel conclude that there was bad blood between them – based on the specific instances you’ve described.
4. At this point, remember the 10th Commandment. Save it for summation. But if you feel a little braver at this point and decide to violate it, you can still ask, “Isn’t it true that you dislike SSG Rivera?” Because, with affirmative answers to the above two specific questions, you will probably get an admission from the witness. And if you still get a denial for this conclusory question, it will show the jury that the witness really is a liar.
Following the above rules won’t make you a brilliant cross-examiner. But then, nothing will do that. You have to be born with the talent, and virtually none of us is. But if you’re not born to be another Cicero, Sir Edward Carson, Max Steuer, Percy Foreman or Lloyd Paul Stryker, it doesn’t mean that you have to give it all up and go to dental school. You can still do a thorough, competent and workmanlike job of cross-examining. And you can do it without embarrassing yourself -- if you simply stick to the above principles and use them every day in the courtroom.
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SILENT PARTNER IS PREPARED BY COL MARK E. SULLIVAN (USAR, RET.). FOR REVISIONS, COMMENTS OR CORRECTIONS, CONTACT HIM AT 2626 GLENWOOD AVENUE, STE. 195, RALEIGH, N.C. 27608 [919-832-8507]; E-MAIL – MARK.SULLIVAN@NCFAMILYLAW.COM.