The Supreme Court has recognized that cross-examination is “the greatest legal engine ever invented for the discovery of truth.” Cal. v. Green, 399 U.S. 149, 158 (1970). An effective cross-examination is no simple feat, even for the experienced litigator. Preparation is paramount and, when coupled with a deep knowledge of the applicable evidentiary rules, success will come. This article provides a treetop overview of the art of cross-examination for both the young attorney and experienced litigator to keep at the forefront of their mind during cross examination.
A Primer for Cross-Examination
The examination of a witness on cross is designed to evince doubt as to the truthfulness of the witness’s testimony, particularly with respect to issues at the center of the case. Generally, questions posed during cross-examination must be related in some manner to the issues or topics raised during the witness’s direct examination. Open-ended questions are frequently used on a direct examination to allow the witness to fully explain and elaborate on an answer. On the other hand, litigators try to ask leading and straightforward questions during cross designed to elicit, if possible, one or two-word answers or agreement with the questioner’s proposition. See e.g., Fed. R. Evid. 611(c)(“Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony.”). The use of open-ended questions creates risk by permitting the witness to clarify or qualify a response or to reinforce prior favorable testimony. A narrative directed by the attorney through leading questions should be the focus of any cross-examination.
The Rules of Evidence govern the permissible scope and manner of cross examination See, e.g., N.J. R. Evid. 611(b) (cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.); Pa. R. Evid. 611(b) (cross-examination of a witness other than a party in a civil case should be limited to the subject matter of the direct examination and matters affecting credibility, however, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.); Fed. R. Evid. 611(b)(same). Some of the areas to focus on during cross-examination include amplifying inconsistencies in the witness’s testimony, underscoring aspects of testimony that do not add up, and highlighting certain facts that tend to cast doubt on the witness’s credibility.
Preparing for Cross-Examination
There is no substitution for adequate preparation before a cross-examination. Integral to being a well-prepared advocate is having a detailed outline to serve as a roadmap for an effective cross-examination. This involves more than a surface-level review of the pleadings and/or discovery developed in a case. Knowing the facts, a witness’s prior deposition testimony or statements that the witness may have made to others, whether set forth in medical records or other documents, enables an attorney to recognize inconsistencies and confront the witness with them. Preparation must include familiarity with the case file for witness statements, medical records, deposition testimony (if any), and other relevant documents that may be introduced for impeachment purposes. A detailed outline should contain concise and pointed questions with relevant documents cross-referenced so they can be readily available to confront a witness that previously made an inconsistent statement on an issue, gave an otherwise conflicting account, or made an admission. The outline should have a defined theme and follow the pattern and theme of the client’s case in chief.
While a polished outline is undoubtedly helpful, an effective cross-examiner must be prepared to exercise good judgment about whether to continue a line of questioning or abandon it in light of the witness’s responses. Do not hesitate to deviate from an outline or notes if the witness gives an answer that “opens the door” to a topic that is favorable for the examiner’s case, but be careful not to tread in areas to which you cannot anticipate the witness’s response. Likewise, if the line of questioning is not producing the anticipated result, do not argue with the witness nor pursue what has become a fruitless endeavor at the risk of reinforcing the adversary’s case.
While television and movies depict dramatic successes during cross-examination, do not rely on or necessarily expect a “Perry Mason” moment. While a major concession from a witness is possible, it is not a frequent occurrence, particularly with witnesses that have been competently prepared for their testimony. Stick to your theme and be satisfied with making your points, which can be referenced cumulatively in closing or during pre-verdict motions. Witnesses will attempt to explain inconsistencies and will rarely admit to being untruthful. You do not need a witness to concede such points, as long as the inconsistency has been adequately highlighted for the court.
Mastery of the Rules
Knowledge and familiarity of the controlling rules of evidence are part and parcel to a successful cross-examination. A litigator who is well-versed in the rules governing what is fair game and what is off limits will have an easier time navigating an examination than one who is not. For example, a witness’s credibility may be challenged on cross-examination. See, e.g., N.J. R. Evid. 611(b); Pa. R. Evid. 611(b). The questioning of a witness’s credibility does not always need to be based on evidence that is adduced at trial. However, “[i]t is improper under the guise of artful cross-examination, to tell the jury the substance of inadmissible evidence.” United States v. Sanchez, 176 F.3d 1214, 1222 (9th Cir. 1999). The rationale behind this “rule is that the question of the cross-examiner is not evidence and yet suggests the existence of evidence… which is not properly before the jury.” State v. Spencer, 319 N.J. Super. 284, 305 (App. Div. 1999). See also Manata v. Pereira, 436 N.J. Super. 330 (App. Div. 2014) (reversing judgment and ordering new trial where plaintiff's counsel engaged in improper cross-examination by confronting defendant with police report that counsel did not offer in evidence but whose substance he communicated to the jury, constituting an improper attempt to impeach by omission and was capable of producing an unjust result.). Again, preparation is key and the attorney should have a firm grasp on the evidentiary significance of every question or line of questioning if the court requires an explanation to overcome objections. Knowledge of the facts and applicable rules is of paramount importance to this task. Regardless of the jurisdiction where an examination takes place, there is no substitute for knowing the relevant rules of evidence.
The Bottom Line
Cross-examination is the most challenging and important aspect of trial practice. There are no substitutes for preparation and knowledge, all of which combine for a rewarding and optimal experience.
Reprinted with permission from the October 12, 2023 edition of The Legal Intelligencer © 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or firstname.lastname@example.org.