Cross Examination
Credibility of the witness always in
It is the opportunity to elicit information
and expose weaknesses in a witness’s
testimony. It can expose a witness’s
opportunity to observe, capacity to
remember, and ability to recount.
It can bring out mistakes, limitations, and
omissions in the testimony. It can
impeach by demonstrating the witness’s
bias, interest, or motive; revealing
background details that attack the
witness’s truthfulness; and raising prior
inconsistent statements.
Lubet defines cross examination as the
examination of a witness who has
already testified in order to check or
discredit the witness's testimony,
knowledge, or credibility. Cross-
examination is the ultimate challenge for
a lawyer. It is frequently dynamic, often
exciting and in many ways it defines our
adversary system of justice.
If direct examination provides for the
opportunity to win the case, cross
examination may provide you with a
chance to lose it. A poor cross
examination can be disastrous1.
On the other hand, Fontham defines
cross examination as a means by which
the adverse party brings out facts that
support his case, limits the impact of
witness’ damaging testimony, or
demonstrates that the witness is not
believable.2
Limitations and Scope
Cross-examination is limited to the scope
of the direct. Since the purpose of the
cross is to allow you to inquire of the
adversary’s witness, the scope of the
inquiry is limited to those subjects that
were raised during the direct
examination.
Exceptions on the Scope of Direct Rule:
1 Lubet, S., & Lore, J. C. (2015). Modern Trial Advocacy:
Analysis and Practice. (5th Edition) National Institute for
Trial Advocacy.
1.
issue
2. You may cross examine beyond the
scope of the direct once the witness
herself has “opened the door” to
additional matters.
- A witness who voluntarily inserts a
topic can be questioned about it
Other restrictions:
 Argumentative Questions: You
may suggest answers. You may
assert propositions. But you may
not argue with the witness.
 Intimidating Behavior: you are
entitled to elicit information in
cross-examination by asking
questions to the witness. You are
not allowed, however, to loom
over the witness, shout, make
threatening gestures, or otherwise
bully, or badger the witness.
 Unfair characterization: your right
to lead the witness does not
include the right to mislead the
witness.
Purposes of Cross Examination
1. To repair or minimize damage
2. To Enhance your case
3. To detract from their case
4. To establish foundation
5. To discredit direct testimony
6. To discredit the witness
7. To reflect on the credibility of
another3
The Law on Cross-Examination
Direct Examinations must comply with
the applicable rules of evidence, which
can be divided into two areas: cross-
examination, and impeachment.
 CROSS EXAMINATION
The information being brought out on
cross-examination must be relevant.
2Fontham, M. R. (2009). Trial technique and evidence
(3rd Edition). LexisNexis.
3 Lubet, S., supra
The information must be generally 3. Judges in practice impose a
relevant under governing rules. Further, materiality requirement for how
the information must not be excluded by significant impeachment be.
other relevancy rules or the privilege rule.
4. Impeachment can be called
Whenever the witness is asked to repeat
collateral matters because the
in court a statement previously made out
collateral/non-collateral distinction
of court, the testimony must survive the
has nothing to do with cross-
scrutiny of the hearsay rules. It must either
examination.
be non-hearsay, or be hearsay that falls
within a recognized hearsay exception.  IMPEACHMENT METHODS
Cross-examination may use leading There are seven categories of
questions. Although the cross-examiner impeachment.
may use leading questions, this does not
mean that anything goes. Under the
ethics rules, a lawyer may not allude to Can be raised Can’t be raised
any matter that will not be supported by during cross- during cross-
admissible evidence. examination of lay examination of
Trial lawyers can’t also intimidate a witness lay witness
witness by shouting, gesturing, or using 1. Bias, Interest, 6. Bad
other means to unfairly badger a witness. and Motive character
Lastly, cross-examination must be within for
the scope of the direct examination. 2. Prior
truthfulness
inconsistent
 IMPEACHMENT statements 7. Treatises
Evidence law in the impeachment area 3. Contradictory
focuses on two topics: impeachment facts
procedures and impeachment
methods. 4. Prior
Convictions
 IMPEACHMENT PROCEDURES
5. Prior bad acts
Impeachment, which is bringing out
matters that attack the witness’s
credibility otherwise proper
impeachment is never objectionable as
being beyond the scope of the direct.  BIAS, INTEREST, AND MOTIVE
Under the rules, any party can impeach
Bias exists when a witness, through some
any witness, even if the party called the
relationship to the parties or attitude
witness.
about the matter in dispute, has a frame
Rules are largely silent on the procedural of mind that might color her testimony.
requirement for impeachment, but most
Interest exists when a witness’s
judges generally follow the established
relationship to a party or the lawsuit is
common law requirements;
such that he stands to gain or lose,
1. The cross-examiner must have a usually financially, from a particular
good faith basis. That is, he must have outcome to the case.
a reasonable factual basis to believe
Motive exists when a witness has a
that impeaching matter exists.
particular reason, usually because of a
2. Impeaching matters generally should history with one of the parties, to color
be raised during the cross- her testimony a particular way.
examination of that witness.
 These three are always considered as
non-collateral(important).
 PRIOR INCONSISTENT STATEMENTS
Most commonly used impeachment
method. This can be by commission or
omission.
Example:
When a witness says one thing on the stand,
but has said different at an earlier time, this
adversely affects his credibility.
However, this, as far as collateral/non-
collateral distinction is involved, is taken on
a case-by-case basis. Prior Inconsistent
Statements made under oath at trial,
hearing, or other proceeding are also
admissible for their truth where those that
aren’t made under oath at trial, hearing or
other proceeding are admitted only for their
limited purpose of impeachment, but are
not admissible for truth.
 CONTRADICTORY FACTS
Impeachment by contradiction occurs
when a witness is asked to admit a fact
that is inconsistent with what the witness
has just testified about.
 PRIOR CONVICTION
Whenever, a witness testifies, the
witness’s credibility can be attacked by
showing that he has previously been
convicted of certain crimes.
Four Core Mandates:
1. If the crime involved is dishonesty or
false statements.
2. Any prior conviction that is a felony in
the jurisdiction where the conviction
was entered.
3. Evidence of any conviction is
presumptively inadmissible if the
conviction is more than ten years old,
unless otherwise the judge
determines that the probative effect
of the prior conviction substantially
outweighs its prejudicial effect.
4. Prior felony convictions (except Core
#1) of the accused in a criminal case
are not admissible unless the judge
determines that the probative value
of the conviction outweighs its
prejudicial effect to the accused.
 PRIOR BAD ACTS
Under the governing rules, prior bad acts
to impeach if the acts are “probative of
truthfulness or untruthfulness. However, if
the witness does not admit the prior bad
act, the rule expressly states that such
acts evidence may not be proved with
extrinsic evidence.
 PROVING UP UNADMITTED IMPORTANT
IMPEACHMENT
What happens if a witness is asked about
an impeaching matter but does not
admit it?
Today, judges focus less on the technical
collateral/non-collateral distinction and
more on the importance of the
unadmitted impeachment in
determining whether it must be proven
up. The real issue is judicial efficiency.
ORGANIZING PRINCIPLES ON CROSS
Can be based on the four principles of
primacy, recency, apposition, repetition,
and duration.
Three Concepts of Organizing Principles
on Cross
1. Be in control of the testimony and
witness.
2. Never ask a witness a question simply
because you want to find out the
answer. Rather, cross is used to
establish or enhance the facts that
you have already discovered.
3. It is risky to ask the witness the
“ultimate question”
Guidelines for Organization:
1. Do not worry about starting wrong.
- Take the time necessary to
establish predicate facts through
indirection.
2. Use Topical Organization
 - it is essential in cross. The goal is to
not retell the witness’s story but
rather to establish a small number
of additional or discrediting
points. A topical format will be the
most effective in allowing you tom
move from area to area.
- A topical organization allows you
to make maximum advantage of
apposition, indirection, and
misdirection.
3. Give the details first.
- To compare, on direct
examination, a witness will always
be able to tell the gist of the story;
details are used in a secondary
manner to add strength and
veracity to the basic testimony.
However, on cross-examination,
the witness will frequently
disagree with the gist of the story
that you want to tell, and details
therefore become the primary
method of making your points.
Cross examination with details allows you
to learn about the witness with a
minimum of risk. We know that cross
examination is not the time to gather
information about the case. You should
only ask questions to which you know the
answer, or where you are least have a
good reason to expect a favorable
answer.
SCATTERING THE CIRCUMSTANTIAL
EVIDENCE
Circumstantial evidence is most
persuasive when a series of facts or
events can be combined in such a way
as to create a logical path to the desired
conclusion. Unfortunately, facts
arranged in this manner on cross will also
be highly transparent to the witness. A
hostile or unfriendly witness will then
become uncooperative, perhaps to the
point of thwarting your cross
examination. Thus, a far safer approach
is to scatter the circumstantial evidence
throughout the examination, drawing it
together only during the final argument.
Save a zinger for the End
A zinger is usually a striking or amusing
remark. Make your last sentence
resonate with the reader while keeping it
short and sweet.
Also, ask these questions:
 Were you able to help your client?
 Did you do what you set out to
do?
 Were you able to finish on a high
note, or did you just simply give
up?
It is therefore imperative that you plan
carefully the very last point that you
intend to make on cross examination.
HOW TO IDENTIFY YOUR FAIL-SAFE
ZINGER:
1. It must be absolutely admissible
- Nothing smacks more of defeat
than ending a cross on a
sustained objection. If you suspect
even for a moment that your
zinger might not be allowed, then
abandon it and choose another.
- Why is the point relevant?
- Why isn’t it hearsay?
- How has the foundation been
established?
- Why isn’t it speculation?
2. It should be central to your theory
- Since your closing point is likely to
be the most memorable, you
would be best served to make it
one of the cornerstones of your
theory.
- To ensure admissibility you must
keep your zinger well within the
scope of the direct.
3. It should evoke your theme
- The very purpose of a trial theme
is to create a memorable phrase
or invocation capturing the moral
basis of your case.
- Closing moments is the perfect
time to evoke your theme.
 4. It must be undeniable.
- The end of your cross is not the
time to argue or quibble with the
witness.
Choose a fact that you can document.
o Look for something that can
be proven from a prior
statement of the witness or
some other tangible exhibit or
writing.
 Phrase your question in terms of
bedrock fact, making sure that it
contains nothing that approaches a
characterization.
- The more factual your question,
the less possible it is for the witness
to deny you a simple answer.
5. It must be stated with conviction.
Language of Cross Examination
No matter what is your closing question, you
must be able to deliver with an attitude of
satisfied completion4.
Cross-examination is also about control, and
to control the witness’s answers you need to
control your questions. A good test is the 90%
Rule.
 90 PERCENT RULE
The trial lawyer should be doing all the
talking (90%).
1. You have to control the witnesses by
asking leading questions.
Example:
Q: The light was red when the two cars
collided, right?
A: Yes.
Q: It was dark at the time?
A: Yes.
Q: No street lights on that corner?
A: Right
2. Make it factual and avoid confusing
negatives. Use simple nouns and
verbs. Avoid adverbs and adjectives.
Example:
4
Mauet
Q: At the time of the collision, the light for
Main was yellow, isn’t that right?
A: Yes.
This is a factual question. It doesn’t ask the
witness to agree that the car was going “too
fast”, or made an “illegal turn”, or best
known as “quibble words” that witnesses
rarely agree with.
3. Make it simple.
4. Make your points bit by bit.
Example:
Q: You’ve driven on Main Street many
times?
A: Yes, that’s the way I drive to and from
work.
Q: You’ve been driving that route for several
years?
A: Yes.
5. Avoid Why Questions because you’ll
likely lose control.
6. Avoid asking what the witness
“testified on direct examination”. This
would invite witness to disagree with
your understanding.
7. Avoid responding to witnesses who
respond to your question with
another question just simply repeat
your question.
8. Finally, stop. Stop before you go too
far.
PLANNING FOR CONTROL
1. Avoid written questions
 Avoid reading from a script
because it robs the examination
of its spontaneity.
2. Using An Outline
 The purpose of your outline should
be to remind yourself of the points
that you intend to make on cross
examination and to ensure that
you do not inadvertently omit
anything.
3. Referencing your Outline
 Referencing allows you to refresh
the recollection of forgetful
witnesses and to impeach or
contradict witnesses who give you
 evasive, unexpected, or false and will assume that the event on which the
answers. trial is based happened the same way. You
 Across from every important can use this to your advantage during the
subtopic and crucial detail, make examination. A common situation in which
a note that records the source for this technique is useful is when a witness to
the point that you intend to make. an event wasn’t expecting the event, and
wasn’t paying particular attention to it.
At a minimum, you must reference
Q: The block where the collision happened,
every point that you consider
you walk on that block to and from work
essential to your case, as well as
every day, right?
those that you expect to be
A: Yes.
controverted by or challenging to
Q: And you didn’t expect a collision
the witness.
between the two cars to happen that day,
 Example: You know about the
did you
defendant’s meeting plans
A: No.
because he testified to them at his
deposition. Make a note of the
WHAT THE WITNESS SHOULD ADMIT
page and line in his deposition
When the witnesses, have been interviewed,
where he testified that he had an
there is usually a paper record containing
8:30 a.m. meeting with an
their prior statements. Asking them to admit
important client.
in court facts that they have already stated
Reference sources can be letters, reports,
in that is fertile source of additional
memoranda, notes, and even photographs.
favorable facts.
The best sources, of course, are the witness’
own prior words5. Example:

A witness gave a statement to an

Topics for Cross Examination investigator that he wasn’t sure he could
identify the person who robbed him
FAVORABLE FACTS FROM DIRECT
because it happened very quickly and it
Having the witness repeat those for the
was pretty dark. This statement is recorded in
judge, who will remember the facts better
the report. During cross-examination you
because you repeated them. Focus on
can simply ask the witness to admit those
specific facts that the witness stated during
facts, knowing that you can impeach the
the direct examination that help you and
witness with his prior statement if he now
not the entire examination.
testifies differently.
FAVORABLE FACTS NOT YET MENTIONED
ATTACKS ON THE WITNESS’S PERCEPTION
Frequently the direct examiner doesn’t go
into details that the witness can testify Cross-examination can expose weaknesses
about, usually because those details don’t and flaws in the witness’s ability to perceive
help. an event accurately.
Example: Example:
If the witness was not wearing her
On direct examination, the witness didn’t go
prescription glasses, or has a condition that
into actual conversations made about the
affects her vision, this should be brought out.
meeting. The cross-examiner can bring out
Q: Ms. Abraham, you wear prescription
the actual conversations of the employees
glasses, right?
in the meeting, and can use the witness to
A: Yes.
qualify any business records created.
Q: But you didn’t have them on at the time
WHAT WITNESS MUST ADMIT you saw the crash, did you?
Remember that judges have attitudes A: Yes.
about how common events usually happen,

5
Lubet
Q: The glasses are particularly important
when it’s dark out, isn’t that true?
A: Yes.
Q: And this collision happened at 9:00 in the
evening?
A: Yes.
ATTACKS ON THE WITNESS’S MEMORY
If there are reasons why witness’s memories
are questionable, it should be brought out.
A common approach is to demonstrate that
the event is a common event that should
not particularly stand out in the witness’s
mind.
Example:
Q: Officer, as part of the drug unit, you make
arrests frequently, don’t you?
A: Yes.
Q: You’ve arrested other persons during the
past year?
A: Of course.
Q: How many?
A: Probably about three a week.
Q: Over the past year that adds up to
around 150 arrests?
A: Yes.
If the witness has been interviewed by
investors or met other witnesses in whatever
circumstances, you can sometimes
demonstrate the witness’s memory and
recall has been influenced by outside
sources.
Q: Since that time, you’ve talked to other
parents about what happened that
afternoon, right?
A: Well, we sometimes talk about it.
Q: How many times have you talked with
other parents about what you saw that day?
A: Probably several times.
ATTACKS ON THE WITNESS’S ABILITY TO
COMMUNICATE
Expose weaknesses and inconsistencies in
the witness’s communication abilities. Some
witnesses have trouble communicating
what they experienced and describing it
accurately.
ATTACKS ON THE WITNESS’S CONDUCT
Sometimes witnesses say one thing, but act
inconsistently.
Example:
Q: You claim the sex with Ms. Williams was
with her consent right?
A: Yes.
Q: But you heard the next day the police
were looking for you, isn’t that true?
A: I heard they wanted to talk to me.
Q: And you didn’t go home for three days,
did you?
A: No.
THE “NO AMMUNITION” CROSS
If you have no effective ammunition the
safe course is simply to stand up and say “No
cross-examination, your honor.”
FORMULATING QUESTIONS FOR CROSS
EXAMINATION
Purpose of formulating
 Gain the assent of the facts of the
witness
What to employ?
 Generally, employ leading questions
 The best form in a statement of fact,
followed by the inquiring phrase: “is
that right”
 You should frame and establish and
state the question so that they
establish the key facts in the story as
assent is gained from the witness
Avoid negatives in framing questions:
 State it in a positive manner and
call for a “yes” answer
 A negative answer may cause
confusion
o Ex. “isn’t that correct?”
“Can’t Lose” Questions: Motherhood and
Apple Pie
 “Apple Pie” Propositions are
statements that are generally
accepted tenets of morality, duty,
responsibility, love of family
 Witnesses generally concede these
questions even if they don’t
necessarily practice them, otherwise
 they lose the appearance of examination in a way that multiplies the
credibility impact of two otherwise unconnected
facts.
Breaking Down Points and Painting Pictures
on Cross-Examination: the “Mountain Out of C. Use Sequenced Questions for
Molehill” Approach Indirection

 Characterized by taking any good What is clear to the judge will also be clear
overall factual point, breaking it into to the witness.
as many subpoints, or facts, as
You may therefore decide simply to
possible, and gain assent to each
abandon apposition and instead to
little point
“scatter” the information.
 Each accurate, specific question
D. Use Sequenced Questions for
makes it difficult for the witness to
Commitment
equivocate and thus usually
produces concessions Using sequenced questions in combination
with incremental questions may
 May start with more precise versions
occasionally allow you to compel an
of fact then proceeding to more
unwilling witness to make important
conclusory questions
concessions.

Sequencing was used to commit the witness

QUESTIONS THAT ACHIEVE CONTROL to several premises that were later
expanded in a way that she would be
A. Use Incremental Questions
unable to deny.
Cross-examination should proceed in a
E. Create a “Conceptual Corral”
series of small, steady steps.
The purpose of cross-examination is to “box-
The larger the scope of your question, the
in” a witness so that crucial facts cannot be
more likely you are to give the witness room
averted or denied.
to disagree. It is therefore preferable to
divide areas of questioning into their smallest After building the first three sides of the
component parts. corral, you may then close the gate with
your final proposition. Each side of the
This technique allows you to:
conceptual corral is formed by a different
 Cut off the escape route for a sort of question:
witness who is inclined to argue or
First Side: witness’ own admissions, gathered
prevaricate. The incremental
from his deposition, documents in the case,
questions provide small targets for
or earlier testimony on direct examination.
a witness’ inventiveness.
Second Side: Undeniable facts that have
 Know early in the sequence
already been established or what can
whether the witness is likely to
readily be proved by other witnesses.
disagree with you.
Third Side: Plausibility.
 Test the witness for cooperation
and to determine whether your F. Avoid Ultimate Questions
own factual assumptions are
It will often be tempting to confront an
correct before you reach an
adverse witness with one last conclusory
embarrassing point of no return.
question, but you need to resist this
B. Use Sequenced Questions for Impact temptation.

You may use sequencing (or apposition) to The classic approach to cross-examination
clarify your story or enhance in its impact on calls for the lawyer to elicit all of the facts
the trier of facts. You may be able to control that led to the ultimate conclusion, and then
the witness, however, by sequencing your stop. The final proposition is saved for final
argument. By saving the ultimate point for
final argument, you ensure that the witness
will not be able to change or add to the
testimony.
The safest route is generally to be satisfied
with establishing a chain of incremental
facts and to reserve the capstone for
arguments.
G. Listen to the witness and Insist on an
Answer
Make sure that you have gotten the correct
answers. In any event, you must always
recall that it is the witness’ answer that
constitutes evidence, not your question, and
you must listen carefully to ensure that the
evidence is what you expected.
Questions That Lose Control
The pitfalls of cross-examination are well
known: refusals to answer, unexpected
answers, argumentative witnesses, evasive
and slippery witnesses. In short, these are
failure to control the testimony.
Control of testimony on cross-examination
means ensuring that:
1. All of your questions are answered
with the information that you
want, and
2. No information is produced other
than what you have requested.
In other words, the witness must answer your
questions and only your questions6.
Questions to be avoided
A. Nonleading Questions
The cardinal rule on cross-examination is to
use leading questions.
Solution: Preparation. Be sure of the facts.
Read his deposition, scour the police report,
measure the skid marks, and talk to other
witnesses.
66
Lubet
Because your leading question is based on
verifiable facts, the great likelihood is that
the witness will agree with you.
There are two legitimate reasons to suspend
temporarily the use of leading questions:
1. You will occasionally need to
learn a bit of information from a
witness to continue a cross-
examination. You must truly be
certain that you need to ask an
informational question and that
you have prepared alternate
examination to meet whichever
answer you are given.
2. You may believe that an answer
will have more impact if it comes
in the witness’ words instead of
yours.
This technique is most likely to work when the
information you are after is well-
documented, factual, and short.
B. “Why” or Explanation Questions
If you already know the explanation, then
use leading questions to tell it to the witness.
Do not ask a witness to explain.
C. “Fishing” Questions
Fishing questions – the ones that you ask in
the hope that you might catch something.
Do not ask questions to which you do not
know the answers.
D. Long Questions
Long questions have an almost limitless
capacity to deprive a cross-examiner of
witness control. The more words you use, the
more chance there is that a witness will
refuse to adopt them all.
Long questions are easily forgotten or
misunderstood. Even a witness with every
reasonable intention to honestly and
forthrightly answer can be misled or baffled
by a lengthy question. These questions
diminish your ability to enlist the judge in your
efforts to control a witness.
 E. “Gap” Questions
Gap questions constitute an especially
enticing subset of explanation questions.
Allow the omission to remain unexplained
and then to point it out during final
argument.
Remember that it is your opponent’s burden
to prove their case. Everything that they
leave out of their case works in your favor.
Do not cross-examine on omissions in
testimony. Do cross-examine on the
absence of facts.
F. “You Testified” Questions
Another common method of surrendering
control to a witness is by asking questions
that seem to challenge the witness to recall
the content of her earlier direct testimony.
The problem with “you testified” question is
that they invite the witness to quibble over
the precise wording used on direct
examination. The closer you can stay to
“real life,” the less likely you are to lose
control of the witness.
G. Characterizations and Conclusions
The characterization could then be saved
for final argument. Recognizing the
impossibility of stating an absolute rule, the
wisest course is to examine your questions for
their potential to be taken as
characterizations.
PREPARING FOR CROSS-EXAMINATION
Listeners wants an informative, direct, and
an organized cross-examination. A trial
lawyer should follow a methodology.
A sound method a trial lawyer should ask are
these progressive questions:
1. What is the theory?
2. What are the themes?
3.What are the proper closing arguments?
4. What facts exist to support those points?
5. What questioning style should I use?
Follow this approach to have an effective
cross-examination.
Theory
This is important to be identified before the
trial to create consistency between the
version as to the point of view of the lawyer
and the questions to throw during cross-
examination.
Themes
A poetic device to summarize the essence
of the theory that the trial lawyer is trying to
convey.
Closing Arguments
Conclusions drawn out from the theory
should be stated in the closing statement to
emphasize the concept of recency.
Facts that support the Closing Arguments
Admitted facts by the witness that support
the theory of the case shall be part of the
closing argument to support the conclusion
of the theory.
Questioning Style
A trial lawyer should practice asking short,
simple, leading questions that bring out one
helpful fact one at a time.
PREPARING YOUR WITNESS FOR CROSS-
EXAMINATION
It's not enough to prepare your witness for
direct examination; you must also prepare
them for cross-examination.
Sufficient Time
Devote sufficient time to prepare for
cross- examinations. Mostly
inexperienced witnesses are usually
nervous and anxious.
Witness's Concerns
Witnesses usually ask what the other
lawyer is like, what questions he/she is
going to answer, how does he/she
respond.
Impressions
Like direct examination, cross-examinations
also involves impressions. This involves
content, tone, demeanor, and the like.
How a witness acts during a direct
examination should also be how he/she
should act during a cross-examination.
I'm here to tell you what I know, regardless of
who's asking the questions.
DO'S and DONT'S
1. Understand the question. If you
don't, say so. Don't guess.
2. If you know the answer, give it. If
you don't know, say so. Don't
guess.
3. Answer only what the questions
call for. Don't volunteer additional
information.
4. Answer questions only with what
you personally saw, heard, or did.
PRACTICE
This means practicing the actual questions
that the cross-examiner is likely to ask, and
hearing the actual answers your client
should give.
DEALING WITH THE DIFFICULT WITNESS ON
CROSS-EXAMINATION
 Using narrow, specific questions that
focus on factual points limit the
witness’s ability to wander from your
points
 Choosing understandable language
in your questions will help make it
obvious that a recalcitrant witness is
avoiding, rather than
misunderstanding, your point
Witness “Explains” to Introduce Counter-
Points
 Make questions specific to make
explanations seem out of place
 Use subtle techniques to remind
listeners that the witness is
unresponsive
 You may ask the witness for help in
answering the questions before
explaining
 Lastly, ask the court to instruct the
witness to answer the questions and
strike unresponsive answers
Witness Answers a Question Different from
the One you Pose
 You may use the same methods as in
dealing with a witness who explains to
introduce counter-points
Witness Tries to Interrogate You
 You may turn the request to define a
term around and ask the witness how
they would define a term
 You must understand the meaning of
the technical terms used in the
question and be ready to offer a
definition that furthers your point
 Be sure to request the agreement to
keep control of the interrogation
 If the witness asks for more
information, rephrase with a more
specific inquiry
Witness Baits or Insults You
 Maintain composure
 Direct the witness back to the
question as you deflect any
commentary
Dealing with Damaging Information
Revealed in Cross-Examination
 Avoid appearing injured by a
damaging answer and move on to a
safe question
 Do not follow up the question unless
you can impeach or contradict the
damaging point
 One method of distracting listeners
from damage inflicted is to suggest
that a question needs rephrasing and
switch to a somewhat different
question
Counsel’s Demeanor and Positioning
 It is better to discredit the testimony
and secure factual concessions
rather than attacking the witness as a
person
Use the witness to prove your points
 Consider the following pointers in
conducting the examination

 Emotion – Showing controlled

emotions help validate your position
in the right circumstances

 Conviction – Speak in a loud,

authoritative voice to give the
impression that you know the facts
and have the material to back them.
This lends to the credibility of your
statements and should make the
witness reluctant to dispute your
statements

 Position – Stand when conducting the

examination. This helps you assume a
dominant role and helps in controlling
the exchange

 Eye Contact – Eye contact with the

witness makes it harder for them to
dispute your assertions. It allows
emotion shown to seem more real.
Looking and listening are essential to
controlling the examination

 Courtesy – The lawyer is not entitled

to admonish and instruct the witness,
only the court may do so