Main Objectives and Legal Bounds of Cross-Examination

Main Objectives

Cross-examination should always be conducted with a specific objective in view. The Supreme Court in The Ottawa V Stewart (1865) 70 US (3 Wall.) 269, 271, gave the following comprehensive statement on the purposes of cross-examination:

Cross-examination is the right of the party against whom the witness is called, and the right is a valuable one as a means of separating hearsay from knowledge, error from truth, opinion from fact, and inference from recollection, and as a means of ascertaining the order of the events as narrated by the witness in his examination in chief, and the time and place when and where they occurred, and the attending circumstances, and of testing the intelligence, memory, impartiality, truthfulness, and integrity of the witness ....

Counsel should pursue one or more of the following objectives:

1. To develop favorable matters that has been left unsaid on direct examination;
2. To introduce all of a conversation or document, if the witness has testified to only a part out of context;
3. To demonstrate that the witness is lying;
4. To establish that the witness could not have seen or heard what he claimed;
5. To test the witness's ability to hear, see, remember, and relate with accuracy what he testified to;
6. To establish the witness's bias or prejudice;
7. To establish any interest, pecuniary or otherwise, the witness may have in the outcome of the trial;
8. To impair the credibility of the witness, e.g., by inducing him to admit that he made statements on a prior occasion contrary to his testimony on direct examination, or by laying the foundation for proof of contradictory statements;
9. To impeach the witness by proof that he has been convicted of a felony;
10. To bring to the attention of the jury that the witness testifies evasively, hesitantly, belligerently, or so slowly that he seems to be struggling to support his testimony in chief;
11. To establish that the witness has been coached and has memorized his testimony; and
12. To impeach the witness in any other way permitted by law.

Limit on Number of Cross-Examiners

Generally only one attorney may cross-examine a witness. However, if there is more than one party to a side and each is represented by separate counsel, each counsel must be allowed to cross-examine the witness. If there are two parties on one side, each represented by separate counsel, and one of them takes the stand, the attorney for the other can "cross-examine" him (even though he is a co-party, not an adverse witness). This cross-examination of a friendly co-party is restricted, how ever, in that it must be "as if under redirect examination", which means that leading questions are prohibited. If two parties are represented by the same counsel, however, they have no right to cross-examine each other.

Limits on Scope

General Rule and Exceptions

Although cross-examination is a matter of right, not of privilege, it is regulated by the court within legal bounds. The examination must relate to the testimony given on direct examination. This does not mean that the cross-examiner is confined to the particular and restricted answers given on direct, but rather to the general subjects mentioned. Great latitude is allowed in determining whether he is within or beyond the scope of the direct examination. Questions are permissible if they are relevant to matters brought up in the testimony in chief.

There are many exceptions to this general rule. The principal exception allows free scope for impeachment, i.e., for "any matter that has any tendency in reason to prove or disprove the truthfulness" of testimony. Therefore, the cross-examiner may delve into the motives, bias, interest, and background of the witness; he may test the ability of the witness to have seen or heard what he has testified to; he may point up contradictions in the witness's testimony by establishing that the witness had made prior inconsistent statements; and he may, under certain circumstances, explore whether the witness was ever convicted of a felony.

Embarrassing or Degrading Questions

Court's Duty to Protect Witness

Counsel may not ask questions merely to embarrass or degrade the witness. It is the court's duty to protect the witness from such an attack. Whether a question is relevant to the issues in the case or tends to impeach the witness, or is asked solely to embarrass or degrade him, is for the court to determine. The court need not shield the witness from every embarrassing question. For example, a woman testifying on behalf of a man may be asked, to investigate her possible bias, whether she and the man are living together. In a paternity suit the woman may be asked whether during the period immediately before her pregnancy she was having sexual intercourse with any other men.