Building effective Cross Examination questions
Opposing counsel has just finished examining his witness. The jurors swing their attentive heads towards you. From the high table, the judge leans towards you with a piercing glare while announcing in a voice loaded with sympathy, “Counsel, cross.”
If you always get nervous at this point, you need to know that there is a long line of lawyers in front of you. Myself included. When I first started out as a criminal prosecutor in Chicago, the one thing I disliked the most was cross examination. But, I wasn’t alone. The exercise of cross-examining a witness also made the more experienced attorneys nervous.
But you can’t blame most lawyers. The fact is simple: law school does not and cannot teach anyone how to cross examine. It is only through constant practice with live witnesses that anyone can ask effective cross examination questions.
Below, I have attached an article that I wrote for the Cook County Bar Association (of course with their permission). The article builds on the premise that cross-examination is more of a science than an art. Hence, there are basic principles which most trial lawyers can adopt for a series of effective cross examination questions. No doubt, for the experienced trial lawyer, this article might serve as an obvious reminder, but, for the new trial lawyer, this article attempts to add some guidance to one of the toughest parts of trial: The cross-examination of a witness.
Even now, as a Chicago criminal attorney, I still get a little chill when the judge turns to me and says those dreaded words: “cross.”
Tips on cross-examination
Cross-examination is perhaps the most daunting challenge facing any trial lawyer during a trial. Indeed, cross-examination has the ability to make or break a case. For most attorneys, the fear in conducting a successful cross-examination comes down to not knowing what to ask when under the scrutiny of a jury or a judge. To compound the problem, some attorneys believe that cross-examination is an art that can only be mastered by those with a native talent for it.
But the ability to conduct a successful cross-examination comes with diligent practice. With diligent practice, an advocate builds on the opportunity to learn not only from his or her mistakes, but also from the mistakes of other attorneys. Indeed, the age-long adage that practice makes perfect is particularly applicable to cross-examination.
After conducting over a hundred criminal trials as a criminal prosecutor in Chicagoland, I have learned from my experiences and those of other attorneys that there exist some basic tips, which could be adopted for most successful cross examinations. As a caveat, these tips do not advise on how to style a cross examination; those matters are unique to the personality of both the trial attorney and the case being litigated. Rather, the following tips serve only as building materials that could be helpful in crafting the successful cross-examination of most witnesses.
Preparation is the driving force behind the successful cross-examination of a witness. Knowing the facts of the case is not enough. Through thorough preparation, the trial attorney should become an expert on the subject at issue—no matter how temporary. Becoming an expert on the subject you are cross-examining about does two things: First, it provides you with a wealth of material to build your cross examination on; and second, it forces the witness to respect your questions by giving you straight answers.
I once prosecuted a DUI trial where my key witness, a police officer, testified on direct examination that the defendant had failed all the field sobriety tests. The police officer’s testimony was credible and I was certain of a conviction until the more experienced opposing counsel began his cross-examination:
“I have in my hand a copy of the National Highway Traffic Safety Manual, are you familiar with it officer?”
“Yes I am.”
“As part of your DUI training, you studied this manual correct?”
“Officer I never heard you testify on direct as to asking the defendant if he had any illnesses or physical handicaps before you began the tests.”
“No I never asked him.”
“But officer according to this training manual, you are supposed to ask this critical question, since an illness or physical handicap could adversely affect the defendant’s ability to perform the test.”
“That is correct.”
By the time the experienced attorney was done with his cross examination—which was based largely on things the officer did not do—the judge decided the case did not need to go past the directed verdict stage. Though the facts of the case pointed to the crime of DUI, the cross-examining attorney successfully won an acquittal by mastering the DUI training manual.
As part of trial preparation, the trial attorney should also become familiar with the mannerisms and personality of a witness. I learned this lesson the hard way during my first month as a criminal prosecutor in the misdemeanor courtrooms of Chicago.
The case was my fifth trial for the day and even though I knew the facts of the case, the high volume nature of the misdemeanor courtrooms had prevented me from spending more time getting to know my complaining witness. It was a battery case involving an elderly Caucasian complaining witness who had alleged that his much younger African American employee had beaten him up after an argument.
During cross-examination, the defense attorney on numerous occasions suggested and accused the complaining witness of being a racist. What the defense attorney did not know, was that the complaining witness had an African American girlfriend that had accompanied him to court. With what I thought was ace information, I stood up boldly on redirect examination and pointing to the gallery, it went something like this:
“You have a girl friend correct?”
“Yes I do”
“And she is in court today right?”
“Yes she is”
“Could you point her out for her honor?”
“Yes, she is the negro lady sitting over there.”
The whole courtroom erupted into riotous laughter and to say the least I wanted to run and hide under my table. Though this experience occurred during a redirect examination, the lesson of knowing your witness should not be lost on cross-examination.
The reasonable person standard
The most important tool jurors use when reaching a verdict is their common sense and life experiences. For that reason alone, trial attorneys should build a cross examination around one question: would a reasonable person believe this testimony? This reasonable person standard could take the form of highlighting obvious bias to the incredibility of a story.
Take the situation where a close family member of a party takes the stand as a corroborating witness. In many of these scenarios, such corroborating witnesses usually deny ever discussing the case or the manner in which they would testify with the party. However, common sense dictates that when a close family member witnesses a crime involving another family member, such a situation would have been relived over a hundred times at the dinner table prior to trial.
Hence, a cross examiner should consider developing questions that emphasize the strong bond between the witness and the party and the fact that the witness was aware of the pending litigation. I usually end my cross-examination of such witnesses with the rhetorical question: “so you want to tell this jury that even though you are a close family member who lives with the defendant, you have never discussed this case with each other?”
There is absolutely nothing wrong in discussing a case with a family member, but by lying about it or by downplaying it, the witness would have caused any reasonable person to have doubt as to their credibility.
I once had a trial where a bouncer was accused of beating up a patron. In the bouncer’s security report, he admitted that he was the only bouncer who handled the victim, but denied ever using excessive force. However, after showing multiple pictures of a seriously injured victim, the defendant’s story changed. During the defendant’s case in chief, he claimed that another bouncer, called Lou, hit the victim. During the cross- examination of the bouncer, I tried to imply that any reasonable person, facing the loss of his or her freedom, would not wait for the trial to start before announcing the identity of the true offender:
“And nowhere in your security report, even though it indicates names of persons, do you put anything about a Lou striking the complaining witness?”
“The incident was about my altercation with the complaining witness.”
“But today you just told the jury about Lou, correct?’
“This case is about you, not Lou?”
“Yes, I am the one being prosecuted.”
“But you still took the liberty to tell the ladies and gentlemen of the jury about Lou hitting the complaining witness?”
Fleshing out the damage
A common mistake amongst cross-examiners is to seize on a damaging fact and fail to impress that damage on the jury. A very experienced trial attorney once termed this failure as failing to put flesh on the bones. Take the scenario where a police officer has testified to relevant information that is not in the police report. In such a scenario, it is not enough to ask the question: “And you never put it in your report is that correct?” Rather, attorneys should put flesh on the bones by asking a series of questions such as:
“You were trained at a police academy correct?”
“You were trained on how to write reports?”
“You wrote this report to keep a record of the information while it was still fresh in your memory?”
“When you wrote this report, you were aware of the potential need for it in prosecution?”
“And you are required to include only the truthful and relevant facts because this report could be used in a court of law where the oath to be truthful to a jury or judge is administered?”
“And today you have testified to facts you believe are relevant correct?”
”However even though you believe that these facts are relevant, you failed to include them in the police report you wrote on the day this incident happened?”
Such a series of questions would impress upon the fact finder that the witness testimony is not credible.
As trial attorneys, we are always learning. I hope that some of these basic tips that I have learned may serve as a refresher for the experienced trial attorney and add some comfort to the soon to be trial attorney about to step into the courtroom for the first trial.
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