Art of Effective Direct Exam

7/23/2019 Art of Effective Direct Exam

1/55

THE ART OF EFFECTIVE DIRECTEXAMINATION AND CROSS-EXAMINATION

A. INTRODUCTION

Our topic is the art of direct examination and cross-examination.

While direct examination and cross-examination may have

diering purposes or objectives, both require for success thorough

preparation, mastery of technique, and an artful execution of the

advocates game plan.

lso, !hether it be direct examination or cross-examination, the

facts !ill aect the extent and quality of the examination. "o matter

ho! brilliant the la!yer is, he has to live !ith the facts of the case. #f

the facts are not on his side, his brilliance may avail him nothing and,

as the saying goes, if he cannot pound on the facts or the la!, he may

have to resort to pounding on the table.

#t may be !orth!hile at this point, for a better understanding of

!hat !e !ill discuss later, to note the dierences bet!een the

purposes and objectives of direct examination and cross-examination.


2/55

s a general rule, on direct examination, the la!yer calling the

!itness !ill try to provide a clear exposition of the relevant facts. $he

objective is to have the !itness testify in such a !ay as to provide the

judge a complete picture and enable him to understand and remember

the !itness testimony. On cross-examination, on the other hand, the

opposing la!yer !ill try to sho! to the court that the !itness

testimony is unclear, inaccurate, or contradictory, or that the !itness is

not a credible person.%

$o be more speci&c, direct examination and cross-examination

dier as follo!s'

(a) On direct examination, the la!yer uses the !itness to

advance and support his theory of the case, !hile on cross-

examination, the la!yer &rst tests the possibility of

con&rming his theory of the case by eliciting from the

!itness admissions in support of the relevant facts and he

may also attempt to destroy and discredit the !itness

testimony by emphasi*ing contradictory facts and

attac+ing the credibility of the !itness.

(b) On direct examination, the la!yer tries to focus the

testimony on facts that !ill enhance his theory of the case1ron, ., uy, ., and osner, /., 0ross-examination of Witnesses, p. 12 (%343 ed.).

2


3/55

!hile on cross-examination, the la!yer tries to surround

the testimony of the !itness !ith clouds of doubt and tests

the possibility of eliciting facts corroborating his theory of

the case. 5ssentially, the cross-examiner is loo+ing for

inconsistencies bet!een the testimony and the opposing

la!yers theory of the case.

(c) On direct examination, the la!yer !ill as+ the !itness

questions concerning his +no!ledge of the facts6 any

question not prepared in advance could confuse and

entangle the !itness at this stage. On the other hand, on

cross-examination, the la!yers purpose is to move the

!itness from the security of prepared and rehearsed

questions to a dierent &eld, generally unexpected by the

!itness.

(d) On direct examination, the la!yers purpose is to connect

the testimony to credible and veri&able facts, !hile on

cross-examination, the la!yers purpose is to point out and

prove improbabilities and inaccuracies in the direct

testimony.

3


4/55

(e) On direct examination, the la!yers purpose is to as+

questions dra!ing facts in chronological order since it is

easier for the !itness to remember events in chronological

sequence, !hile on cross-examination, the la!yers

purpose is to brea+ the chronology of events by jumping

from one subject to another and thereby distract the

!itness from his or her line of thought.

(f) On direct examination, the la!yer must examine the

!itness since the testimony is an essential part of the

evidence, !hile on cross-examination the la!yer may

examine the !itness if the questioning could contribute to

his case.7

n appreciation of the dierences in the purposes or objectives

of direct examination and cross-examination should help facilitate an

understanding of !hat is an eective examination and ho! best to do

it. # hope that my discussion !ill help both the ne! practitioners and

the seasoned ones.

B. DIRECT EXAMINATION

2Id, pp. 12-1%.

4


5/55

$he aims of direct examination are t!o-fold' (a) to present

evidence legally su8cient to prove each claim or defense, and (b) to

convince the court of the truthfulness and accuracy of all the evidence

supporting the claim or defense1.

lthough eective direct examination is usually less spectacular,

more cases are !on by evidence on direct than by that on cross-

examination.9 ccording to /ustice icardo :rancisco, direct

examination might !ell be described as ;the unsung hero of successful

trial

n ;eective< direct examination is one that presents not only

legally su8cient evidence but also convinces the court about the

truthfulness and accuracy of the !itness testimony. lthough

presenting legally su8cient evidence is an absolute pre-requisite of

3eeton, ., $rial $actics and ?ethods, p. %2 (%3=9 ed.)

4Id.

5## :rancisco, ./., @leadings and $rial @ractice, p. 7A (1 rded., %34>).

6eeton, ., supranote 1. p. %%.

5


6/55

success in a trial, the great majority of cases are !on or lost upon the

persuasion of the court.A

1. Witness selection an !"e!a"ation

$he &rst step to ensuring a good direct examination is the

selection of !itnesses !ho can ma+e the most eective presentation

and corroborate critical information. Bou should consider !hich

!itnesses !ill be most persuasive.

Cefore a !itness is presented, you should study and evaluate the

!itness strengths and !ea+nesses in order to ma+e the !itness as

eective as possible. ll !itnesses cannot be handled the same !ay.

?any types !ould have to be specially coached, for example, an

illiterate !itness, the poor tal+er, or one from !hom you have to

literally dra! out the information.4

$he need to intervie! the !itnesses and to go over the case

thoroughly !ith them cannot be overemphasi*ed. Cy doing so, you not

only obtain a +no!ledge of the facts but you learn !hat each !ill

testify to, the manner in !hich they !ill testify, and the +ind of

!itnesses they !ill ma+e.3

7eeton, ., supranote 1, p. %%.

8Weiss, D., Eo! $o try 0ase, pp. ==-=> (%392 ed.).

9Id.

6


7/55

Foing over all details !ith the !itnesses beforehand !ill help

them remember the facts better in court6 they !ill also have more self-

con&dence, !ill +no! !hat is required of them, and !ill ma+e better

and more intelligent !itnesses in every !ay.%2

Cefore a !itness is called to the stand, he must be given the

proper guidelines or instructions for testifying, !hich should include'

(a) the need to maintain eye contact !ith the judge6

(b) the need to maintain eye contact !ith the examining

counsel6

(c) the dangers of becoming angry or losing control6

(d) the importance of telling the truth and not exaggerating6

(e) the importance of ma+ing his ans!ers concise, accurate,

complete and responsive6

(f) the bene&ts of appearing honest and sincere6

(g) the necessity of not ans!ering a question that is not

understood6

(h) the avoidance of speculation or inappropriate opinions

!hen ans!ering questions6

(i) to decline to ans!er a question if the !itness does not

+no!6

10Id.

7


8/55

(j) the problems created by being non-responsive or

volunteering information6 and

(+) ho! to properly address the judge and the examining

counsel.%%

$he preparation of the !itness requires that you must sit do!n

!ith the !itness and go over very carefully !ith him !hat he !ill

testify in court. #n other !ords, you must prepare the !itness to testify

by revie!ing !ith him the questions you are going to as+ and his

proposed ans!ers. $here should be no ;surprise questions< during the

trial. s long as you tell the !itness to stic+ to the truth, there is

nothing unethical about coaching or rehearsing the !itness. s stated

by one author' ;"o serious ethical question is raised by the la!yers

organi*ing the testimony into a logical, comprehensible sequence6 no

conceivable purpose could be served by having an inarticulate,

disorgani*ed !itness, left to his o!n devices, stumble through his

testimony


9/55

questions and seen ho! the !itness actually ans!ers

them. $he !itness ans!ers may be much dierent from

!hat your earlier ;discussion< had led you to believe.

Eence, practice the actual direct examination !ith the

!itness so that the !itness feels comfortable !ith your

questions and you feel comfortable !ith the !ay the

!itness expresses con&dence and certainty. emind the

!itness that it is perfectly proper to prepare the !itness for

testifying in courtG.).

14?ogill, /. ?., supranote %% p. 79.

9


10/55

#. $"esentation an eli%e"&

#n conducting the direct examination, you must assume that the

judge +no!s nothing about the case. Bour direct examination must

therefore start at the beginning and tell everything.%=

#t is not, ho!ever, a simple matter of getting the story or the

facts out. $he direct examination should tend to portray a clear and

dramatic picture of the main events. s a trial la!yer, you should vie!

a trial, particularly a direct examination, as a creative art, one !hich

allo!s you to tell a story to the court in a !ay that is most

advantageous to your client.%> Bou must consider the courtroom as a

theater and the trial li+e a play or a movie6 the !itnesses are the

characters. $he lines must be persuasive, interesting, compelling and

clear.%AHi+e a director, you must decide ho! to portray a certain event

or scene to achieve the desired result. s one author puts it'

;Inimportant matters are avoided or glossed over. #mportant ones are

stressed, details are *oomed in on, and action is slo!ed do!n. 0ritical

matters can be sho!n in stop-action sequences


11/55

$o ma+e your direct examination a highly eective one, the

follo!ing suggestions should prove helpful'

(a) ' H()ani*e+ &o(" ,itness. J Bour initial questioning

should include bac+ground questions to personali*e the

!itness. $he credibility of the !itness is al!ays in issue.

judge is more li+ely to believe the !itness if he vie!s the

!itness as a li+eable, decent and nice person.%3

(b) ee! it si)!le. - Dince attention span drops

signi&cantly after %= to 72 minutes, ma+e your

examination short and focused6 ma+e the

examination !hat the name implies J ;direct.

20?auet, $., supranote %7 pp. A9-A4.

11


12/55

!ords and phrases for your questions and training

your !itnesses to use simple !ords and phrases in

ans!ering your questions. Dhort, simple and easily

understood questions can be ans!ered by short,

simple statements. Duch a direct examination ma+es

the !itness feel at his ease and helps him to tell all

he +no!s in the best !ay he is capable of doing.

$his manner of examination also brings out the facts

in the most eective !ay.7%

(d) Use senso"& lan0(a0e. :rame your questions in

simple form, using simple and sensory language that

!ill help the judge visuali*e !hat the !itness is

saying. Densory !ords !ill give the judge a better,

more vivid picture of !hat really happened.77

(e) Elicit %is(al esc"i!tions. Bour direct examination

should elicit visual and other sensory images. $he

!itness testimony should paint a picture that the

judge can actually visuali*e. Eo!ever, avoid

excessive detail !hich may just clutter up your direct

examination.71

21Weiss, D., supranote A, pp. =7-=1.

22?auet, $., supranote %7, pp. 47-41.

23Id., pp. A3-42.

12


13/55

(f) A%oi leain0 (estions. J While the prohibition

against the use of leading questions in direct

examination is a rule of evidence, it is also a rule of

persuasion. Cy suggesting the ans!er to your

question, you diminish the impact of having the

!itness volunteer the facts himself6 it prevents the

!itness from appearing credible. lso, because a

leading question !ill often dra! an objection from

opposing counsel, the use of leading questions !ill

interrupt the Ko! in the testimony of the !itness and

slo! it do!n.79

(g) $"esent te testi)on& o2 te ,itness in te

)ost lo0ical an e3ecti%e )anne". - Bou must

organi*e the +ey elements of the direct examination

in a logical order. Isually, but not al!ays, this !ill

result in a chronological presentation of the

testimony. $his is not, ho!ever, an invariable rule.

@resenting the most dramatic or important testimony

early in the direct examination !hen the judge is

most alert can sometimes be the better approach.

Bou must exercise your best judgment and decide,24Dongsteng, /., supranote %2, p. 7%A.

13


14/55

!ith each !itness, the order that !ill most eectively

present his testimony.7=

(h) Vol(ntee" ,ea4nesses. - Bou should carefully

consider !hether you should oer harmful evidence

on direct examination to avoid the more damaging

eect of its being revealed dramatically on cross-

examination. #f the harmful evidence is directly

related to the issues in the case and is a matter that

in all probability your opponent !ill inquire about on

cross-examination, it is preferable to produce it on

direct examination. #t can be oered at a time and

manner in the course of the examination that tends

to minimi*e it rather than dramati*ing it7>. #t is

usually best to bury it in the middle of the direct

examination and ma+e it part of the story.

:or example, in a vehicular collision case, if

your client before the collision stopped in a bar and

had t!o bottles of beer, and it is highly probable that

the fact is +no!n to the opposing party, the better

part of prudence may call for disclosing it in your

25?auet, $., supra note %7 p. A=.

26eeton, ., supranote 1, pp. =9-==.

14


15/55

direct examination. Bou may minimi*e its

signi&cance if your client testi&es that the t!o

bottles of beer did not at all aect his faculties.

(i) Use e5i6its to i0li0t an s())a"i*e 2acts.

5xhibits should be used during the direct

examination to highlight the central facts of your

case and explain important details to the court. $he

preferable time to use exhibits is after the !itness

has substantially completed his oral testimony. #n

this !ay, the exhibits !ill not interrupt or detract

from the oral testimony.7A

(j) 7isten to te ans,e"s o2 te ,itness. - Bou

should appear interested in the !itness ans!ers,

al!ays maintaining eye contact !ith him. ppearing

interested carries over and infects the !itness. #t

eliminates any suggestion that the direct

examination has been choreographed and rehearsed.

#t also helps you avoid mista+es and ma+es you alert

to unexpected ans!ers of the !itness.74

27?auet, $., supranote %7, p. 4A.

28Id., pp. 4A-44.

15


16/55

(+) Va"& te !ace o" te)!o o2 te e5a)ination. -

$he danger of the trials degeneration into stultifying

monotony is ever-present.73 $o avoid monotony, you

have to vary the pace, tempo or rhythm of your

examination. s suggested by one textboo+'

;Hi+e music, a feeling can be developed

through rhythm, tempo, and modulation, short or

long questions, fast or slo! questions, pauses

bet!een questions, or raised or lo!ered voices.

sense of +inetic energy through the tone of the

questions, the pace, and the number as+ed !ill set

and continue a mood for action sequences. $he

speed of !ords may also indicate intensity.

Fenerally, eective direct examinations move quic+ly

through general information and more slo!ly through

the speci&cs of critical action.


17/55

#n a more concrete sense, a good or eective cross-examination

is one that highlights the facts that are favorable, diminishes the

credibility of the facts to be dra!n from those that are unfavorable,

and introduces facts favorable to the theory of the case.1%

$he object of cross-examination must be to score as many useful

points as possible and, equally important, not to allo! the !itness to

score any points against the cross-examiners case.17 #n other !ords,

in scoring points, the cross-examiner must not become bloodied in the

process.

5ven a cross-examination !hich scores only a relatively fe!

points but permits no points to be scored against the cross-examiners

case may be considered a good or eective cross-examination.

1. Te Nee 2o" $"e!a"ation

$he decision to cross-examine cannot be intelligently made and

an eective cross-examination cannot successfully be carried out

unless the cross-examiner has prepared the cross-examination in

advance and has a realistic understanding of !hat he can expect to

achieve during the cross-examination of any given !itness. $he +ey, it

31 @o*ner, H. L odd, ., 0ross-examination' Dcience and $echniques, p. 73A (%331

ed.)32Id.

17


18/55

has been said a thousand times before, is thorough preparation before

trial.11

@reparation involves a complete mastery of the facts of the case.

$his can only come from intervie!s of all the !itnesses, veri&cation of

their stories (including the clients), use of all the modes of discovery, a

study of all the relevant records and documents, consultations !ith

expert, investigation of the bac+ground of each !itness, an analysis of

the pleadings, and all the preliminary !or+ needed to have a thorough

+no!ledge of all the facts of the case. s stated by Houis "i*er,

;@reparation is the be-all and the end-all of the trial la!yer


19/55

must +no! exactly !hat facts you !ant to elicit during the cross-

examination of each !itness.

#t is especially important in preparing the plan of cross-

examination of a !itness that you note all prior inconsistent

statements ta+en by the !itness as !ell as those that are inconsistent

!ith other !itnesses. ll fact sho!ing bias or prejudice on the part of

the !itness must li+e!ise be noted. #n sum, all points to be covered on

cross-examination must be prepared in a coherent !ay to facilitate the

courts understanding of the thrust of the cross-examination.1=

#. Te "is4s in%ol%e

famous trial la!yer in the I.D., 5d!ard Cennet Williams, has

!arned' ;Bou must thin+ of Mthe !itness to be cross-examinedN as a

man !ith a +nife in his hand !ho is out to stab you.

35ron, ., supranote %, p. 4=.

36@almer, C., 0ourtroom Dtrategies, pp. 32-3% (%3=3 ed.).

19


20/55

Bou must understand that cross-examination is a ;true art< that

can only be mastered through study, training and experience. Bou

cannot just read a boo+ on trial and then step out and try cases.1A

$o underta+e an eective cross-examination, you must have a

clear understanding of your objectives and ho! it !ill further the

theory of your case.

8. $("!oses o2 c"oss-e5a)ination

(a) @urposes of cross-examination

0ross-examination has t!o basic purposes'

i. 5liciting favorable testimony. J $his involves

getting the !itness to agree !ith those facts

that support your case in chief and are

consistent !ith your theory of the case.

ii. 0onducting a destructive cross-

examination. $his involves as+ing the +inds

37Foldstein, #., $he 0ardinal @rinciples of 0ross-examination, published in the %3=3

annual $he $rial Ha!yers Fuide, pp. 11%-117.

20


21/55

of questions that !ill discredit the !itness or

his testimony so that the court !ill minimi*e

or even disregard them.14 $o assail the

credibility of the !itness, an attorney tries

to sho! Ka!s in the !itness, as by sho!ing

his conviction for a crime, or that he is

biased by reason of a close relationship to a

principal party, or that he has made prior

inconsistent statements. #n attac+ing the

testimony of the !itness, an attorney tries

to sho! Ka!s in the testimony of the

!itness, as by sho!ing the lac+ of

opportunity for observation, or exposing

errors in the !itness recollection.

0ontrary to popular perception, the more important objective of

cross-examination is to elicit admissions favorable to the theory of the

cross-examiner or !hich !ill corroborate aspects of the cross-

examiners o!n case.

Bou should al!ays consider eliciting favorable testimony from the

!itness before you attempt a destructive cross-examination.

38?auet, $., supranote %7, p. 7%4.

21


22/55

t the end of the direct examination, most !itnesses !ill have

testi&ed in a plausible fashion and their credibility !ill be high. $his is

the time to extract favorable admissions and information from the

!itness, since the !itnesss credibility !ill enhance the impact of the

admissions. Duch admissions !ill have less impact, and be less li+ely

to occur, if you have previously attac+ed the !itness.13

$hus, you should not al!ays underta+e a destructive cross-

examination. emember that a destructive cross-examination is one

that attempts to discredit a !itness or his testimony so that the court

!ill minimi*e or even disregard !hat the !itness has stated. #f you

have been successful in obtaining signi&cant admissions, you may !ell

decide to omit any destructive cross-examination at all. Bou cannot

have your ca+e and eat it too. #t !ould not ma+e sense to argue to the

court that a !itness favorable testimony should be believed !hile the

part of the testimony you attempted to discredit should be disbelieved.

ccordingly, !here the !itness admissions have been helpful,

thereafter conducting a destructive cross-examination !ill only

undermine the admissions.92

9. Wen to C"oss-E5a)ine

39Id.

40Id.

22


23/55

$he decision to cross-examine cannot be intelligently made

unless you have thoroughly prepared your case and you have a

realistic idea as to !hether you can achieve any of the objectives of

cross-examination. s stated by one author' ;$he decision !hether or

not to cross-examine a particular !itness, and to !hat extent and !ith

!hat aims and methods, calls for appraising the advantages and

disadvantages and accepting a calculated ris+


24/55

(c) Was the testimony of the !itness credible #f the

!itness did not ma+e a favorable impression upon

the court and if it is evident that both the !itness

and his testimony are not believable, the better

policy is to leave !ell enough alone. #n this situation,

as one author puts it, ;the damage has been done

before you can do anything


25/55

(e) What are your realistic expectations on cross #f you

cannot realistically score points during your cross-

examination because you dont have any

ammunition, you may consider foregoing cross-

examination.99 :or example, if you +no! that the

testimony given on direct examination is beyond

contradiction and no possible avenue for

impeachment exists, it is un!ise to cross-examine.9=

(f) What ris+s do you need to ta+e #f you have a strong

and solid case, you should +eep your ris+s to a

minimum6 do not cross-examine unless you really

have to. On the other hand, if your case is a

probable loser, you can thro! caution to the !inds

and conduct a ris+y cross, !ith the hope that you

might some!hat get luc+y and turn the case

around.9>

$o repeat, the better part of discretion may be to say ;"o cross-

examination< in such a !ay as to leave the impression that you attach

little importance to the testimony of the !itness. $his course of action

44Id.

45Dch!iet*er, D., 0yclopedia of $rial @ractice, p. >%9 (7nded., %3A2).

46?auet, $., supranote %7, p. 7%A.

25


26/55

is indicated !here the facts in the case, and the testimony rendered,

leave you !ith no targets to aim at, no points to !ea+en or color.9A

:. St&le o2 c"oss-e5a)ination

Bou should be yourself. Ise the style that is natural to you, that

you feel comfortable !ith. o not try to copy someone elses style.

$he style that is natural for you !ill invariably be the one that is the

most eective as !ell.94

s+ your questions in a voice and manner that projects

con&dence. #f you appear con&dent and in control, you !ill be more

eective in eliciting from the !itness the points you !ant to ma+e.

Bou should also be a good actor. 5very cross-examiner, no

matter ho! experienced, careful, and talented, !ill get bad ans!ers to

questions. When this happens, a good po+er face is invaluable. ont

react to a bad ans!er, no matter ho! damaging. Dimply go on as if

nothing happened.93

Eandle the !itness on cross-examination in a +indly, friendly

fashion. fair and courteous manner is more eective than bro!-

beating and ridiculing the !itness. ?a+e the !itness feel that you are

47Dch!eit*er, D., supranote 9%, p. >2>.

48?auet, $., supranote %7, p. 77A.

49Id.

26


27/55

merely trying to elicit further information from his end to ma+e clearer

the testimony he has already given. Hull the !itness into a false sense

of security so that his ans!ers !ill be spontaneous and he !ill not

!ithhold information !hich he !ould other!ise disclose.=2

$he only exception to the rule that your demeanor to!ard the

!itness should be an entirely friendly one is !hen you are cross-

examining a perjurer. s advised by an authority on the subject' ;Ce

mild !ith the mild, shre!d !ith the crafty, con&ding !ith the honest,

merciful to the young, the frail, or the fearful, rough to the ru8an and

a thunderbolt to the liar.


28/55

(c). $he questions must be directed to!ard a speci&c goal.

cross-examiner !ho +eeps in mind these imperatives !ill not only

score points against the !itness but, equally important, !ill avoid

damage to his case. $he objective in every case is to score as many

points as possible !hile simultaneously oering no opportunities for

the !itness to score points.=7

(a) s+ only leading questions.

cross-examiner must exercise the most po!erful tool in his

arsenal' the right to conduct the examination through leading

questions.

s+illful cross-examiner never as+s questions that begin !ith the

follo!ing' ;!ho


29/55

opinions and stories designed to focus Mthe courtN on the issues the

!itness thin+s most important


30/55

narro!ly J questions that practically declare the ans!er J you should

be able to get ;yes< or ;no< ans!ers to each question.=A

$he leading question serves an additional purpose. #t enables

you to characteri*e certain facts more accurately or more dramatically

than the !itness might describe them in his o!n !ords. :or example,

!ithout the use of a leading question, a !itness might describe an

event as follo!s'

;Q. What did you do next-12A.

62?auet, $., supranote %7, p. 77=.

33


34/55

Q. Boure familiar !ith the intersection of "orthand 0lar+

. Bes.

Q. #n fact, youve driven through that intersectionover the past &ve years, havent you

. Bes.

Q. Bou usually go through the intersection on your!ay to and from !or+

. Bes.

Q. Do over the past &ve years, youve driven

through the intersection over a thousandtimes

. @robably.

Q. Bou never sa! a pedestrian hit by a car therebefore, did you

. "o.

Q. On ecember %1, %33=, the !eather !as clear

and dry

. Bes.

Q. $he tra8c !as pretty much the !ay it al!ays isat that time of day, !asnt it

. Bes, #d say so.

Q. "othing !as going on that made you pay morethan your usual attention to the road

. "o.

Q. #n fact, just before the accident you !erethin+ing about !hat you !ere going to do at!or+ that morning, !erent you

. # might have been.

34


35/55

Q. Do the &rst unusual thing that you noticed thatmorning !as the sound of the crash, !asnt it

. Bes.

Q. nd thats !hen you sa! that someone hadbeen hit by a car, !asnt it

. Bes.>1

"ote that by a series of interrelated, progressive questions

the cross-examiner has demonstrated that the !itness !as not

expecting a crash and really did not notice anything until after

the hearing of the crash. Ee has made his point by indirection.

@lease note that there !as no need to as+ the question' ;Do you

didnt really see the pedestrian before the crash, did you9

nother example' #n an assault case, an eye!itness !as as+ed

by the counsel for the accused !ho !anted to prove self-defense the

follo!ing question' ;Q. Bou sa! the six-foot, &ve-inch 77=-pound guy

!ith the bloody &sts beat do!n on the &ve-foot, %==-pound boy !ith

the bloody face 5ven if the !itness ans!ered ;yes


36/55

Q' Bou sa! the &ght. Bes.Q. /ohn, the big guy, !as &ghting. Bes.

Q. /ohn !as six-feet, &ve-inches tall. Bes.Q. /ohn is a big man. Bes.Q. ave is only &ve-feet, seven-inches. BesQ. ave is a much smaller boy. Bes.Q. /ohn !eighed 77= pounds. Bes.Q. ave is %== pounds

. bout that.Q. /ohn !as a much bigger person.. Bes.Q. /ohn !as a much heavier person.. Bes.Q. nd then /ohn !as hitting ave. Bes.Q. Ee !as hitting ave !ith his &sts. Bes.Q. Ee !as hitting ave in the face. Bes.

Q. /ohn !as hitting ave, and his &sts !ere bloody. Bes.Q. nd as you !atched, you sa! the blood on aves face. Bes.Q. Bou sa! /ohn beating do!n on ave, in the face, !ith his &sts. Bes.>=

(c) $he questions must be directed to!ard a speci&c goal.

ll questions on cross-examination should be directed to!ard an

objective. 5ach of your questions should yield an ans!er !hich is part

of a sequence. t the end of that sequence lies your objective. irect

65@o*ner, H., supranote 7A, pp. 1%7-1%1.

36


37/55

your questions to!ard that objective. "othing can be more futile or

more damaging than cross-examination that proceeds aimlessly !ith

no speci&c objective.

$he cross-examiner !ithout a de&nite objective in mind is li+e

the hunter lost in the !ords !ithout a compass6 he may get

some!here eventually but the chances are that the experience !ill be

unpleasant.>>

5ach speci&c goal or objective of your sequence of questions

must be related to, focused on, and moving in the direction of your

theory of the case.>A

4

66:ric+e, 0., @lanning and $rying 0ases, p. 1A7 (%3=% ed.).

67@o*ner, H., supra note 7A, p. 1%>.

68$he discussion is ta+en from the follo!ing' ?auet, $., supranote %7, pp. 7%4-77>6

Wolf, ., 0ross-examination on $rial, pp. =1->1 (%344 ed.)6 Cailey, :. and othblatt, E.,:undamentals of 0riminal dvocacy, pp. 1%7-17%6 Dch!eit*er, D., supranote 9%, pp.

37


38/55

(a) Dtart and end crisply. Open !ith a Kourish and end

!ith a bang. Dtart !ith a question that grabs the

courts attention. $he same rule applies to your last

question' ma+e it an important point, ma+e it

interesting, and ma+e it crisp. l!ays end on a high

note and never !ith ;your tail bet!een your legs7>.

38


39/55

minimi*e the impact of the direct testimony.

0onsequently, never as+ a question unless you +no!

!hat the ans!er !ill be, and that it cannot hurt you.

violation of this principle means gambling !ith the

results.

(c)Histen to the ans!er of the !itness. Bou should !atch

the !itness as he listens and ans!ers, gauge the

!itness reaction to your question and the tone of his

ans!er, and intelligently formulate follo!-up

questions. ?any la!yers do not follo! this obvious

rule6 they bury their faces in their notes, thin+ing

about the next questions !hile the !itness is

ans!ering the last one.

(d)ont argue !ith the !itness. 5ven if the ans!ers of the

!itness are not to your li+ing, resist the temptation

to argue !ith the !itness. rguing !ith the !itness

is legally improper and unprofessional. nd you may

end up being the loser.

(e)ont as+ one question too many. When you have

scored your point, stop6 once you stri+e oil, stop

39


40/55

digging. Bou have made your point6 be content to

leave it alone. @ass on to another subject. o not

continue to press the !itness on that particular point.

#f you do, he may correct or modify his testimony,

and you !ill lose the advantage you gained.

(f) Eave your cross-examination establish as fe! basic

points as possible. o not try to challenge

everything the !itness says6 this !ill detract from the

force of your important points. ttempting too much

on cross-examination !ill invariably create t!o

problems' the impact of your strongest points !ill be

diluted and the less signi&cant points !ill be

forgotten entirely by the judge at the end of the trial.

Do stic+ !ith the strongest ammunition and avoid the

peripheral material.

(g)ont repeat the direct examination. $his may be the

most commonly violated maxim of good cross-

examination. o not as+ the !itness to ;tell it again3 s # have already indicated, if you are able to elicit signi&cant

admissions on cross-examination, you may be better o not

conducting any discrediting cross-examination at all.

nother factor to be considered before you attempt

impeachment is the soundness of your basis for impeachment J

!hether it !ill probably be successful. #n the trial of la!suits,

unsuccessful attempts are often !orse than mere failures. $he eort

to impeach is itself a charge against the !itness. When impeachment

is unsuccessful, the position of the !itness in the eyes of the court !ill

probably be improved, both because of his ability to !ithstand your

eort to impeach him and because of a natural inclination to

symphati*e !ith one against !hom false charges are made.A2

69eeton, ., supra note 1, p. 33.

70eeton, ., supranote %%, pp. 33-%22.

41


42/55

#n the event, ho!ever, that you have strong impeaching material

in the form of prior inconsistent statements, an eective cross-

examination should follo! certain tried-and-tested techniques.A%

(a) $he &rst step must establish the current version of the

testimony to be impeached. $his is to remind the court of

the current version stated by the !itness in his direct

testimony. While establishing the current version to be

impeached, you must signal to the court that you are not

bringing up the subject merely to verify the direct

testimony but you are instead raising the testimony as an

issue to be disputed. Bour question must have a ;set up you !ere intervie!ed by

etective Dable. Bes.Q. Ee questioned you at the urora @olice

epartment. Bes.Q. Ee questioned you about this crime. Bes.Q. With him !as etective 0aplin

44


45/55

. Bes.Q. Bou +ne! !hy you !ere being questioned. Bes.Q. Bou promised them you !ould tell the truth. Bes.

Q. Bou !ere being questioned about the death ofa man. Beah, 0ro!n.Q. $hese detectives had your full attention. Dure did.Q. Do, !hen they as+ed questions, you made sure

to listen. ight.Q. nd then you ans!ered their questions. #f # could.Q. nd you ans!ered truthfully.

. s best # could.Q. $hey as+ed you if you !ere !atching the !hole

time as 0ro!n !as +illed. Bes.Q. Cut !hat you told the etectives Dable and

0aplin that dayis not !hat you s!ore to thisjury today

. "o, it !asnt.Q. What you told the etectives that day is this

(?adam prosecutor, # am at page 7A, line %2 ofthe transcript of the intervie! of ?arch %1,

%34>)' question by etective Dable' ;id yousee your father hit him !ith the hammer

Date post:	19-Feb-2018
Category:	Documents
Upload:	michelle-de-los-santos
View:	217 times
Download:	0 times

Art of Effective Direct Exam

Documents