Cross Examination

Edgar M. Elliott, IV
CHRISTIAN & SMALL
505 - 20th Street North
Suite 1800
Birmingham, AL 35203
Cross examination requires the greatest ingenuity; a habit of logical thought;
clearness of perception, in general; infinite patience and self-control; power
to read mens minds intuitively, to judge their character by their faces, to
appreciate their motives; ability to act with force and precision; a masterful
knowledge of the subject matter itself; an extreme caution and, above all, the
instinct to discover the weak point in a witness under examination.
Francis Wellman
The Art of Cross Examination
I.

Introduction
Cross examination is the hallmark of the Anglo-American justice system. It is

protected as a constitutional right in criminal cases and is understood as a fundamental

aspect of due process in civil cases. The scope of cross examination varies by jurisdiction.
Alabama has adopted the English rule of cross examination which allows wide-open
cross examination concerning any issue relevant to the case. Perry v. Brakefield, 534
So.2d 602 (Ala. 1988). Federal courts, however, limit cross examination to those subjects
covered on direct examination.
The term cross-examination strikes fear in even the most seasoned litigators. No
other area of trial work generates as much uncertainty or creates greater potential for
disaster. While repetition may allow trial lawyers to become more comfortable in their
cross-examinations, the unique nature of each individual witness and case makes mastery
virtually impossible.

II.

Purpose and Goals of Cross-Examination

Effective cross-examination eludes even the finest advocates until they
understand its real purpose. The point of cross-examination is not to get
information from the witness, to fix what happened on direct, or to try to get
the witness to recant his testimony. The purpose of cross-examination is to
let you tell your side of the witnesss story - your way.
Litigation
James W. McElhaney
While the truest aim of cross examination is to argue your case to the jury, this goal

may be accomplished in a number of ways. Just as each individual case and witness are
unique, the objectives and goals of a particular cross-examination are not a one size fits
all proposition. The various goals that may be achieved through cross-examination
include:
1.

Impeaching the witness. Destroy his credibility as a witness or destroy the

substance of his or her testimony.

2.

Pinning the witness down to a solidified position to narrow the filed of

dispute.

3.

Obtaining favorable testimony or concessions.

4.

Demonstrating errors or mistakes made on direct.

5.

Developing new and advantageous information or facts.

6.

Neutralizing the witness so that this testimony is not particularly harmful to

your theory of the case.

7.

Showing that this witness does not conform with or fit within the theory of
your opponent.

III.

Guidelines
Professor Irving Youngers Ten Commandments of Cross Examination provide an

excellent guide to cross examination.

1.

Be brief.

2.

Ask short questions with plain words.

3.

Ask only leading questions

4.

Never ask a question to which you do not already know the answer or do not
care what the answer is.

5.

Listen to the answer.

6.

Do not quarrel with the witness

7.

Do not permit the witness to explain.

8.

Do not ask the witness to repeat the testimony he gave on direct

examination.

9.

Avoid asking one question too many.

10.

Save the explanations until closing arguments.

While these are certainly good general guidelines, especially for those lacking
experience, they are not carved in stone. There may be times when violations of these
rules are more effective than their observance. Your good sense, intuition, preparation and
tactics will tell you when to abandon the guidelines. When you deviate from the guidelines,
however, make sure you understand why you are breaking them and why.

IV.

The Importance of Control

Professor Youngers Ten Commandments as well as most treatises written on cross

examination can be reduced to a single concept: stay in control of the witness. The object

of cross-examination must be to score as many useful points as possible, but equally

important, not to let the witness score any points against you. In order to accomplish this
dual goal, control of the witness is critical in order to maximize the amount of favorable
testimony elicited from the witness, while simultaneously limiting the witnesss ability to
insert unfavorable testimony.
1.

Achieving Control through the Form of the Question

Both Federal and State Rules of Evidence permit leading questions on crossexamination, a right almost wholly denied the direct examiner. This critical advantage must
always be pressed. Although leading questions are often defined as questions that suggest
the answer. True leading questions do not merely suggest the answer, they declare the
answer.
One must be careful, however, not to give the impression of fearing the testimony
by over-controlling the witness responses. Whenever a lawyer repeatedly tries to force
a witness to answer in just one word , the lawyer sends the unmistakable message to the
entire courtroom that he is afraid of the witness and what the witness has to say about the
case. It gives the impression that there is more to the story than you are willing to allow
the witness to tell. In short, it gives the impression that you are hiding something.
2.

Achieving Control through Preparation

Preparation is the key to cross-examination. Control is best accomplished by topics

and selection of subject matter.

In order to determine the scope of each cross-

examination, preparation is vital. Preparation should begin before trial and continue
through direct examination of the witness. Proper preparation includes:

3.

1.

Reviewing everything you can get your hands on regarding each witness

2.

Learning everything you can about each witness personality

3.

Reviewing jury instructions to help formulate phrasing of the questions.

4.

Developing an outline to use with each witness. Avoid writing out you entire
cross in advance - this deprives you the control that comes from eye contact
with the witness and also destroys the natural rhythm of questioning.

5.

Developing a plan to use demonstrative evidence. Blow-ups of prior

testimony or written exhibits that contradict the witnesss testimony can
create powerful impact on both the jury and the witness during cross.

6.

Maintaining a wakeful presence during direct. Often by taking in what is

going on during direct, you will pick up on signs of vulnerability or negative
reactions from the jury. In order to receive these gifts, you should avoid
being a slave to your legal pad during direct - take notes only on what you
intend to come back to or capitalize on.

Achieving/Reasserting Control Through Actions

Despite your best efforts and preparation, some witnesses will wander beyond your

control. Your perfectly reasonable question results in a long solilquy of uncalled for
information. The following techniques can be used to regain control of such a witness:
1.

A stern look.

2.

Verbally cut the witness off. Although interrupting a witness may be

perceived as rude by the jury, at times the jury will find that the witness
deserves it, and you have earned the right to do it.

3.

Raise your hand in the universal stop signal.

4.

Pointed repetition.

5.

Ask the judge for help.

V.

Content
Professor James McElhaney offers several suggestions of organizing the content

and method of cross examination:

1.

Do not cross examine in a vacuum. Make sure it is safe and consistent with
your theory and theme of the case.

2.

Emphasize only a few main points. A short, coherent examination is the

most effective.

3.

Forget trifles. Cull out passing, unconnected inconsistencies.

4.

Do not mount an attack you cannot honestly support or sponsor. The trial
should focus on what you should do, not what the law will allow you to do.
Remember that when you pick a credibility fight with a witness, you wager
your own credibility as well.

5.

Get admissions early.

6.

Start strong and set the tone at the beginning.

7.

Plan your agenda.

8.

Self-control is more important than witness control. Successful attorneys do

not tell the jury that the witness is a liar, they show them.

9.

Use headlines. Announcements of the subject matter of questioning serve

to orient the jury and assist in witness control.

10.

Validate your impeaching material first and then attack.

11.

Stay flexible. Do not be a slave to your outline. Be in a wakeful presence

that allows you to take advantage of gifts.

12.

End on a high point. Always say one or two surefire strong questions so that,
no matter what happens, you can end strong.

VI.

Cross Examination of Experts

An advocates skills are most challenged, both before and at trial, by cross-

examination of expert witnesses. Since an expert witness is offered to assist the trier of
fact to understand issues normally beyond their own experience and expertise, jurors often
fail to scrutinize the experts testimony with the same critical eye with which they may
examine lay testimony.
The objectives of expert cross-examination, in general, are to (1) make the expert
your own witness to the extent possible (e.g., agreeing to the facts important to your cause
or contradicting the testimony of adverse witnesses), (2) undermine the experts credibility
(collateral attack on bias, for example) and/or conclusions (direct assault), or (3) at least
neutralize the experts testimony.
An expert witness can be cross-examined effectively if you use a sound approach
and prepare properly. Since expert witnesses are experienced witnesses who usually
know far more about the subject matter than you know, additional preparation is often
required. Use your own expert to help you understand and attack the experts expected
testimony. The purpose is always the same: an effective cross-examination should be
safe, yet should give the jury enough ammunition to question or reject the experts opinions
and reasons, and should create impressions about the expert that will carry into the jury
room during deliberations.
James McElhaney suggests the following ways to cross-examine an expert witness:
1.

Make the Expert your Witness - use his testimony to prove your case. For
example if the expert disagrees on how the injury occurred, but admits that
damage occurred - his testimony on damages may be useful.

VI.

2.

Attack His Field of Expertise - just because a court allows an expert to testify
does not mean the field is beyond reproach.

3.

Attack His Qualifications.

4.

Expose His Bias - fees, prior testimonial experience and relationship with the
opposing attorney are most common.

5.

Attack His Facts - an explanation is no more reliable than the facts relied on.

6.

Vary the Hypothetical - insert facts that you feel should have been included
on direct or leave out facts which were improperly included.

7.

Impeach with a Treatise.

8.

Attack Him Head-on - attempt to show that he erred in his factual

investigation, logic or computation.

When No Cross Examination is Necessary

Sometimes no cross-examination is the best cross-examination. If a witness has

nothing to offer, or is too sympathetic and credible, you may want to avoid an examination
entirely. You should always ask yourself Has this witness said anything that hurts my
case? If the answer is no, you should not question the witness. There is an art to
avoiding an examination. It may be appropriate to downplay a witness, by saying Your
honor, we have no need to cross-examine this witness. You will send a confident
message to the jury that you find the witness testimony has not hurt your case or that the
testimony was biased.