Important Legal Technicques: Cross-Examining a Lay Witness

Although counsel has no more deadly weapon than cross-examination, if his objectives are not carefully thought out, the course of the interrogation not properly planned, his strategy vis-a-vis the particular witness not determined, and his supporting propositions not well researched, the entire examination may miss its mark. If the lawyer has followed them, he is ready to put his preparation, knowledge, and objectives to the test and cross-examine his first witness.

Order and Duration of Questioning


Most witnesses, whether coached or uncoached, recall events and conversations in chronological order and give their testimony in that sequence. They expect cross- examination to follow the same line. It is an extremely poor tactic to cross-examine in this order, allowing the witness to correlate each event or conversation with the one just before it and simply reiterate the facts testified to on direct examination. Even starting the cross-examination with the last matter covered on direct gives the witness this advantage of continuity and should be avoided.

Cross-examination usually produces the best results when it jumps from one subject to another in complete disregard of chronological order. Counsel may start the examination somewhere in the middle of the sequence of events, proceed to events and conversations occurring earlier, and then jump to later periods of time. This method may well throw the witness's line of thought out of kilter. He may become hesitant in his answers, thus casting doubt on his recollection. His answers may even be different from his testimony on direct examination. If he is confused, he may become annoyed and belligerent. Each of these results benefits the cross- examiner. Perhaps none of these responses will be elicited by jumping around, but it is fairly certain that they will not be brought forth by a chronological cross- examination. Thus, no harm and much good can come from jumbling the order.

When Lengthy Examination Warranted

As a general rule lengthy, meticulous cross-examination on every subject testified to by the witness is not profitable and should be avoided. Exceptional occasions arise, however, when the cross-examiner must go into each incident and event with particularity.

When Client Denies Event Occurred

When the client claims that a particular event or conversation never took place, the cross-examiner must pinpoint the exact day and time of the occurrence alleged by the witness, so that he can produce witnesses or evidence to disprove the adverse testimony. For example, a lawyer probating an estate was accused of stealing $5000. The plaintiff and her sister each testified that, after the death of the plaintiff's husband, they found $5000 in currency secreted in the home; that they went on a certain morning to the lawyers office and turned the money over to him without getting a receipt; and that the lawyer never accounted for the money and denied that he had ever received it.

The cross-examination of each woman was long and minute, covering not only when and how long the women remained in the lawyer's office, but also what had been done, whom they had seen, where they had been both before and after going to the lawyers office, and what each had done the day before and the day after the claimed visit. By insisting on specific answers, defense counsel was able to fix the exact time of the claimed visit as between 11:00 and 11:30 in the morning of a particular day. He was able to establish, by court records, that on that particular morning the accused lawyer had been actively engaged in the trial of a case from 9:30 until well after noon.

Witness Rehearsed

A witness may correctly repeat the substance of a lengthy conversation; however, it is practically impossible to reiterate the exact words claimed to have been used by either party. Nor can a witness describe a complicated incident in the same words used on a prior occasion. This accurate repetition can only result if the witness has memorized his testimony much as an actor learns a part.

If the examiner believes that the testimony given on direct is false and that the witness has been coached to the point where he has learned his testimony by heart, the cross-examiner should call for repetition of each phase of the testimony. In this way he can demonstrate to the jury that the witness's story is rehearsed. In one case, a woman related on direct examination a fairly long conversation with the defendant that included many damaging facts. Defense counsel was convinced that the testimony was fabricated and that the witness had learned it by heart. The cross-examination was conducted two days after the direct, a weekend having intervened. Counsel went over the entire conversation again, though this repeated the damaging testimony to the jurors. In his argument to the jury, counsel maintained that no one could relate such a long conversation and then reiterate it word for word, unless it had been memorized. He contended that the conversation was fabricated, and he read to the jury a lengthy comparison of the testimony given on direct examination and on cross-examination.

Evidence Suppressed

In a few instances the adverse party and his attorney deliberately suppress physical evidence that favors counsel's case. Discovery and revelation of the suppression on cross-examination will go far to discredit the witness who knowingly made no mention of the evidence on direct examination. This requires lengthy and meticulous cross-examination about how long the witness knew of the evidence, why he had not mentioned it, who had instructed him not to refer to it, and so forth. With any luck, such a cross-examination will destroy the opponent's case.

Questioning Habits to Avoid

Many attorneys fall into the habit of repeating the last answer given by the witness as a prelude to asking the next question. This prolongs the cross-examination, is boring, and tends to emphasize a damaging answer. The lawyer should try not to lapse into this repetition. Other attorneys seem to preface each question with the word, "Now." This, too, should be avoided. Often lawyers resort to these habits merely to gain time to think of the next question. It is much better simply to pause or ask the court's indulgence for a minute or two.

Handling Various Types of Witnesses

Slight Differences in Treatment

Although the attorney should maintain a courteous and dignified attitude throughout his examinations, wit nesses differ and he can adopt some nuances of difference in his treatment of them. He must decide what category each witness falls into and what approach he should take, bearing in mind that too marked a difference in attitude may affect the jury adversely.

Fair and Truthful Witnesses

Certain witnesses, men and women, young and old, give forth an aura of honesty and sincerity. They impress the jury as trying to give correct and truthful testimony. Such a witness must be handled with kid gloves on cross-examination. Questioning the honesty of such a witness will only produce an unfavorable view of the examiner in the minds of the jurors.

Know-It-All Witnesses

In a case involving many incidents and conversations, one witness may claim to know everything about the case, to have been present at every occurrence, and to have participated in or overheard every conversation. This person can be most dangerous. To cross-examine him on the details of what he allegedly saw, heard, or said will just allow him to repeat for the benefit of the jury the damaging testimony given on direct examination. Instead, counsel should try to develop, for purposes of argument, the improbability of the witness having been present on every occasion.

Without asking what the witness saw or heard, the examiner can question him on exactly when and where each incident took place and what if anything he was doing there. The questions should mix up the chronology of events out of their proper order. The bias and interest of the witness may also be investigated. An exception to the rule that this witness should not be cross-examined on what he saw or heard arises if another witness on the same side of the case has given testimony directly or inferentially contrary to this witness's story.

Taciturn Witnesses

The antithesis of the garrulous witness is the taciturn witness who answers only in monosyllables, if possible. He may give the impression that he is seeking not to reveal anything injurious to his case. Unless he can be contradicted by his own previous statements or the testimony of other witnesses, counsel may as well ask merely enough questions to demonstrate the witness's reluctance to talk, so that he can justify a contention that the witness may be concealing facts detrimental to the side calling him.

Belligerent Witnesses

If possible he should needle the witness in a quiet manner. The more vociferous and belligerent the witness becomes, the more striking will be the contrast to the quiet and gentlemanly lawyer. The witness's anger itself may convince the jury that he is prejudiced against the examiner and his client.

Vacillating Witnesses

Sometimes counsel is confronted with a witness who is not too sure of the facts about which he is testifying. He thinks he knows but is not certain. The examiner should treat him kindly and lead him along. He can suggest the answer in his favor, asking whether it is possible that the incident occurred in such-and-such a way, rather than the way the witness had testified. The uncertain witness may admit that events happened in a manner favorable to counsel's side.

Flippant Witnesses

An occasional witness gives the impression he thinks that the whole matter is a big joke. He makes wise cracks, smirks, and treats the situation lightly. Counsel can allow him to do so for a short period of time and then bring him to account by a few questions.

Evasive Witnesses

A witness may resort to subterfuges such as stating that he does not remember, that he is not sure, or that even though he was present at an occurrence he did not see or hear anything. He may also attempt to answer a question by asking another question. Counsel should impress on him that he is there to answer questions, not to ask them. The examiner can insist that the witness give definite answers to the questions, and if he persists in his evasions, he should be asked the same question over and over until he is forced to answer it directly.