Deciding Whether to Cross-Examine and When Not to Object

When opposing counsel states, "You may cross- examine," the lawyer is faced with an important decision: Should he cross-examine the witness at all, and if so how much and about what matters? While the witness is undergoing direct-examination, the attorney must be determining the answers to these questions. He must simultaneously be deciding whether to object to questions on particular matters, since objections have a great bearing on cross-examination.

Can Objectives Be Achieved?


The cross-examiner must bear in mind the two fundamental purposes of cross-examination: to elicit answers favorable to his side of the case and to impair the credibility of the witness. If neither objective will be achieved by cross-examining the witness, counsel should forgo cross-examination. A futile cross-examination will only fortify the witness's original damaging testimony by repeating it to the triers of fact. Moreover, it may bore and antagonize them. If it is possible to gain one or both of the goals of cross-examination, counsel must weigh other factors.

Was Testimony Damaging?

If counsel feels that the witness's testimony has not hurt his case or materially assisted the case for the opposition, he should not cross-examine. Such a cross- examination will bore the triers of fact without producing any benefit to counsel. He should not undertake cross-examination on the chance that it may develop something to his advantage. He must remember that the witness is adverse, and cross-examination is more likely to bring out additional matters that are detrimental to counsel's contentions. It is better to leave the witness alone and in closing argument point out that the testimony added nothing to the issues or in support of the other side. In fact, when counsel says, "No questions," he may produce the impression that he, at least, does not think the testimony was of any importance.

Can Credibility Be Impaired?

If general cross-examination will only emphasize the damaging testimony given by the witness on direct examination, counsel must consider whether a cross- examination solely to impair the witness's credibility can be pursued successfully. The questions would be confined to prior contradictory statements or testimony, the background of the witness, matters showing that the witness's recollection is faulty, or the other impeachment techniques allowed by law. This cross-examination should be under taken only if the examiner is reasonably certain that he can impair the witness's credibility.

When and How To Stop Cross-Examining

When counsel decides to subject a witness to cross- examination, he faces a new series of decisions about when to abandon questioning on each subject. When it becomes apparent that further investigation of a subject will only elicit additional damaging testimony or stress adverse testimony already given, cross- examination on that particular matter should be discontinued. It is difficult for counsel to abandon a detrimental cross-examination without loss of face. Merely to drop a line of inquiry may be as damaging as pursuing the subject further. Counsel should try to exit gracefully. How to do this depends mainly on the situation. If the attorney can think of no pertinent retreat, it may suffice to say: "I assume that any further questions I ask on this point will elicit the same answers from you as you have already given, is that correct?" This may not be the best exit line, but at least it conveys the impression that counsel believes the witness is biased in favor of the side calling him, even to the extent of not telling the truth.

Some situations afford the lawyer a graceful way to drop further cross-examination. For instance, on cross- examination, an elderly man who had recently been ill gave most damaging testimony. It became clear that pursuing the examination would only strengthen his prior testimony. The cross-examiner successfully with drew with the following questions:

Q. I understand that you have been seriously ill, is that correct?

A. Yes.

Q. Are you still suffering greatly from the effects of your illness?

A. I am.

Q. Then I will not subject you to any further cross-examination. You may step down.

Favorable Testimony Elicited

The second instance calling for abandonment of cross-examination arises when the lawyer procures an answer favorable to his side. He will incur no damage and may receive great benefit by not pursuing that particular subject further, but going immediately to some other phase of the testimony. In this situation, the abandonment can be abrupt, and no reason for it need be given.

Trial versus Appeal

In trying a case, many lawyers are concerned solely with procuring a favorable verdict or judgment; they never consider what to do should the decision go against them. While it is admirable to be intent on winning the case, it is imperative that the attorney consider and protect his record, in case he loses the decision or in case, if he wins, the opposing side appeals. Timely objections must be made and cross- examination conducted with one eye on the record. Counsel must decide whether it is best to wager all on the outcome of the trial or to forgo some advantages in the trial in order to preserve a material point for appeal. For example, although questions asking for hearsay evidence are subject to valid objections, if counsel allows them to be answered they may provide testimony useful to him in his argument to the jury, or may allow him to impeach the witness. While hear say is not admissible, unless an exception applies, if counsel does not object it becomes competent evidence in the case and may provide the main ground for affirming or reversing a judgment on appeal.

When Not To Object

Naturally, if a question is proper, objection should not be made. It would promptly be overruled, and a series of unfounded objections and over-rulings can have a very damaging effect on the case. The judge or jurors may conclude that the attorney has no confidence in his own case, is not adequately prepared, or is attempting to exclude proper and material evidence by the other side because his own contentions cannot stand up to it.

Moreover, this conduct may bore the jurors so that they pay no attention to counsel's contentions. If persistent, it may even cause the court to lose interest and miss a sound objection among the mass of ill-founded objections.

Even when a question is properly subject to objection on some ground, this does not necessarily mean that an objection is worthwhile. The answer called for by the question may be innocuous and do no damage to counsel's side of the case. Or counsel may wish to pursue the same line of inquiry himself on cross- examination; if he objects to it on direct and is sustained, he can assume opposing counsel will follow suit on cross-examination. If an objection will foreclose cross-examination on matters vital to counsel's case, he must weigh whether the direct examination will be more damaging than the cross-examination will be beneficial. The same considerations govern the decision to move to strike answers on direct examination, such as answers that are not responsive to the question but that include important matters.

How to Object

Objections to evidence must be specific. A general objection is insufficient and justifies overruling. Merely to say that a matter is incompetent, irrelevant, and immaterial constitutes no legal objection. Nor is it a sufficient objection to the introduction of evidence to state that no foundation has been laid for the evidence. The trial judge is under no duty to guess the particular reasons for an objection or a motion; they must be stated in the objection. For example, counsel must specify the preliminary fact that has not been proved when objecting that the required foundation has not been laid.

Failure to state the grounds constitutes a waiver of any grounds on which counsel could later claim that the court erred in overruling the objection, and an appellate court will rarely, if ever, consider the claimed error. Therefore, counsel should state a timely objection on each ground that he may want to raise in the event of appeal.