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Common Tacticical Admonitions in Legal Cross-Examination

published January 24, 2013

By Author - LawCrossing
Published By
( 15 votes, average: 3.9 out of 5)
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Questions to Avoid

Of all the questions in the cross-examiner's vocabulary, none is more dangerous than those beginning with the word "why." They may unlock a Pandora's Box of devastating answers and explanations.


The "why" questions generally assume two forms: "Why did you do (or say) so-and-so?" or 'Why didn't you do (or say) such-and-such?" Either one allows the witness to say anything he pleases without limit, even though the explanation may contain otherwise incompetent and inadmissible testimony. If counsel asks such a question calling for a shotgun answer and then objects to portions of the answer, requesting that they be stricken, the court probably will rule against him, stating: "You asked for the witness's reasons and he is now stating them. The weight to be given his testimony is for the jury to decide. Having asked the broad question, you cannot now object because you do not like the answer."

Cross-examiners generally ask these "why" questions through carelessness, through lack of proper preparation, or simply as a stopgap to give them time to think of the next line of questioning they wish to pursue. For example, in an attempt to establish the prejudice of an adverse witness, a cross-examiner asked if the witness disliked his client. The witness answered that he had no use for the attorney's client. The cross- examiner then asked, "Why do you dislike and have no use for my client?" In response, the witness spent about 20 minutes narrating in detail all the things that caused him to dislike the client. The answer produced deadly results. The examiner could have made much of the initial prejudicial answer if he had quit while he was ahead.

What Questions

While it is entirely proper to ask a specific question about what a person did or said in a particular situation, a general question about what happened to a person or what knowledge a witness has about a subject or event is as dangerous as a "why" question. An indefinite "what" question, such as, "What happened after Mr. X left that day," opens the door to all kinds of possibly immaterial or damaging information. What event is the question seeking to examine? Whose actions does it mean to follow? What time period is it considering? The question should be rephrased to ask about a specific activity, e.g., "What did you do immediately after Mr. X left?"

If the knowledge of antecedent facts bears on the conduct of the witness, a general question on what knowledge he had may be warranted. But, if the opinion of a witness is in issue, the general question of what knowledge the witness had should be avoided, as the following example demonstrates:

In a case raising a question about the functioning of the human brain, a brain surgeon was called as an expert witness. He gave testimony on the mental condition of the subject and his opinion about the result of this mental condition.

The cross-examining attorney, apparently having exhausted all the specific questions he could think of, asked: ''Doctor, just what do you know about the human brain and its functioning?" The witness began a discourse on the human brain; after he had talked for about an hour, the judge interrupted him and asked, “Doctor, how much longer is it going to take to complete your answer?" The doctor replied, "Your Honor, I am a professor at X Medical School, where I lecture on the human brain. My course consists of 20 lectures, and I have just finished giving the jurors my first lecture." The court and both counsel then agreed that the witness need not give the balance of his lectures. The answer enhanced the standing of the witness and greatly strengthened his opinion testimony.

Compound Questions

Simple questions that are readily understood by both witness and jurors will compel the witness, willingly or unwillingly, to give directly responsive answers. If the answer is not responsive, the cross-examiner may move to have it stricken from the record. Many attorneys adopt the tactic of asking compound questions in the hope of confusing the witness. Counsel in one case (Godfrey v Miller (1889) 80 C 420, 423, 22 P 290, 291) asked:

Did you know, or did you have any cause to believe, that the transfer of this horse and buggy by Mr. Gilbert to yourself was made with a view to prevent the same from coming to his assignee in insolvency, or to prevent the same from being distributed ratably among his creditors, or to defeat the object of, or in any way to hinder, impede, or delay the operation of, or to evade my of the provisions of the insolvency act?

No witness could give an intelligent answer to such a question. The question, like all compound questions, should have been broken down into its components, each asked separately. A compound question that con fuses the witness will probably confuse the jurors or judge and may even confuse the attorney who asked it. It is the judge's duty to control the questioning so as to avoid this confusion.

Compound questions are subject to objection by opposing counsel. If the cross-examiner persists in asking them, the constant rulings against him will be detrimental to his case.

Broad Questions

Successful cross-examination requires counsel to keep the witness under control. Long, general questions permit the witness to dominate and control the examination. The best way a cross-examiner can keep a witness in line is to ask simple questions that call for definite and specific answers. If the witness seeks to avoid a direct answer and injects his personal opinion or immaterial matter, the examiner can call him to account, even enlisting the aid of the judge. Counsel may direct the witness to confine his answer to the specific question asked, or may move to strike out an unresponsive answer, or may ask the court to admonish the witness to listen to the questions and confine his answers to them.

A question stated in simple language and confined to a particular incident not only induces the witness to answer responsively, but also allows the jurors to understand what the examiner is attempting to establish.

Questions on Unimportant Matters

If counsel cross-examines solely to demonstrate his questioning ability or his erudition in the subject, he will introduce unimportant, irrelevant, or incidental matters that will bore the triers of fact and not help his case. No two people see or remember the same occurrence in exactly the same way, and no honest witness can repeat a prior narration in exactly the same words, without deviation. It is therefore futile, and may result in an adverse ruling, for the attorney to try to convince the jury that a witness is unworthy of belief merely because counsel has developed some contradictions in his testimony on unimportant and incidental matters.

Similarly, if counsel contends that a party was not present at an event and a witness testifies that the party was present, it is a waste of everyone's time to cross-examine extensively about the event itself. The issue of the party's presence should be the focus of questioning. Thus, if the defense is an alibi, little benefit is derived from questioning whether the crime was actually committed or the event actually took place. The cross-examiner should concentrate his questions on the alleged presence and identification of the defendant. Extraneous questioning may tire the triers of fact and cause cross-examination on vital matters to be lost in the shuffle.

Attitudes to Avoid

Getting Angry at Witness

One of the greatest errors an attorney can commit is to get angry and display his anger during cross-examination of an adverse witness. The time to display anger, resentment, or even disgust is in the closing argument to judge or jury. Then the attorney may properly indulge in emotional displays or histrionics and verbally demolish the witness whose testimony he is discussing.

To become angry or fight with a witness under cross-examination may fortify the witness's credibility or swing the sympathies of the jurors to the witness and against the examiner. Counsel should conduct his examination in a gentlemanly and dignified manner. He can allow the witness to become angry, abusive, belligerent, or argumentative, and may even foster this conduct or play on it, but he himself should remain calm and appear dispassionate. Once a witness becomes angry he may blurt out matters the examiner can use in argument or favorable testimony the examiner could not otherwise have elicited. The witness's anger or animosity may lead the jurors to feel that he is not giving his testimony fairly or truthfully and that he is unjustly endeavoring to support the side of the case that called him.

The attorney may with propriety, and in fact should, fight for his client's rights. He may argue vehemently, if necessary, for rulings of the court in his favor and object strenuously to rulings against him. He may also object to the conduct of opposing counsel. But he must not cross the line between legitimate forceful argument, or protest on points of law and indulgence in diatribes with the court, opposing counsel, or witnesses.

Relying on Judge for Supporting Law

While it is of the utmost importance to be prepared for the conduct of cross-examinations, it is equally important to be fully prepared on the law regulating both direct examination and cross-examination. For instance, counsel must have at his fingertips the legal authority for objections to damaging testimony sought to be introduced on direct examination. If he wishes to invoke an exception to the hearsay rule, he should be pre pared with authorities justifying his position. He must not rely on the judge to know all the law or even the particular body of law governing the objection, offer of proof, or motion to be ruled on. The judge may be fully conversant with the law on that matter; the lawyer must be well armed with citations to sustain his position. From researching the law, counsel will learn not only the bounds of his own actions in trial, but also what limits he can insist be put on the opposition. Defense counsel, knowing the issues to be litigated, should determine how the law allows opposing counsel to prove the facts of his case. He may be surprised at the number of ways that are improper and thus subject to objection. With this knowledge, he can keep the opposition within legal bounds on the method of proof. The attorney for the plaintiff or prosecution should be well versed on the latitude the law allows opposing counsel in cross- examination and on the manner in which the opposition can legally present its defense, as well as knowing the legal authorities sustaining the method he adopts for proving the material facts of his own case.

Confusion of Witness

The ordinary witness reacts with confusion when he is confronted with a chart or diagram and asked to point out or mark where certain objects or persons were at a stated time. Diagrams are generally confusing to those not familiar with their use. To elicit valid testimony, counsel must take pains to make the witness comprehend the chart or diagram.

Importance of Scale Drawing

Diagrams used to illustrate distances, locations of objects or persons, or routes taken by vehicles or persons should be drawn to scale. Otherwise the judge and jury cannot form a correct impression of the facts being demonstrated.

Sometimes opposing counsel calls a witness and merely sketches a diagram on the blackboard, explaining that, of course, it is not drawn to scale. The lawyer confronted with this tactic by the opposition can counter it in several ways if he has a chart or diagram drawn to scale. He may offer the use of his scale drawing to opposing counsel. If he does not make the offer or if it is refused, he may use the scale diagram on his own cross-examination of the witness.

A scale diagram is also of great assistance to the attorney in preparing his own witnesses for direct and cross-examination.
Diagrams drawn to full scale are usually impossible to prepare and use and sometimes prohibitively expensive. However, there are cases in which they are war ranted or even essential. For example, if the question is whether a certain activity was performed in a small, circumscribed space, counsel should not rely on a small- scale diagram.

Danger of Single Copy

If only one diagram is used throughout the case, the second and subsequent witnesses asked to mark routes or positions on it will almost invariably mark the same spots indicated by the first witness. To avoid this agreement of opinion among opposition witnesses, counsel should use a separate copy of the diagram for each witness. Several charts may show marked disagreements about where events occurred. In place of a blackboard, counsel should offer a roll of drawing paper and ask the court to direct that all diagrammatic illustrations by the witnesses be made on sheets of this paper. Each sheet can be marked and admitted in evidence.

If a scale drawing is needed, blueprints may be the solution. They are far less expensive than a series of hand-drawn diagrams. The diagram must be drawn to scale on architect's tracing paper; then as many blue prints as are necessary for the trial can be made.

published January 24, 2013

By Author - LawCrossing
( 15 votes, average: 3.9 out of 5)
What do you think about this article? Rate it using the stars above and let us know what you think in the comments below.