Certain basic cross-examination strategies apply across the board: ask leading questions; don’t ask if you don’t know the answer; remove physical barriers between you and the witness; repeat helpful facts. Go beyond the basics with these 5 proven cross-examination tips, excerpted from our book Texas Criminal Lawyer’s Handbook:
1. Resist beginning cross with an attack on the witness’s final answers on direct.
Resist the temptation to begin your cross-examination by proving the inaccuracies of the last several points made on direct examination. Sometimes, the closing points are minor or an attempt by your opponent to distract attention from the main issues. Addressing them first lessens the impact of a carefully planned cross-examination. If your opponent closed the direct examination with his strongest points, you may be taking the bait by meeting the witness head-on without softening him up first.
2. Caveat: Begin cross with an attack on the witness’s final answers on direct when you know (and can prove) the witness lied.
In those rare instances when you know (and can prove) that the witnesses lied on direct, consider beginning cross-examination with a series of lock-down questions:
Q: Were you 100% truthful with this jury in everything you told them in response to the questions on direct?
Q: Were you every bit as truthful today with this jury as you were when you appeared at the grand jury and offered testimony concerning these same events?
Q: Did you tell the other lawyers the same thing, during the three times you met with them, that you told this jury today?
Q: So, since you have been 100% truthful in your testimony today, you do not wish to change any answers to the testimony you have provided? Is that correct?
If you feel you must leap right in to demonstrate the witness’s untruthfulness, be certain that you will be successful. Failure at the outset sets the wrong tone for the rest of the cross-examination, leading the jury to sense that you have thrown your best punch and missed. If the witness survives your first volley, he will gain confidence and, even worse, gain control.
3. Use the court reporter to control a difficult witness.
The court reporter can be a valuable tool in controlling a difficult and unresponsive witness. The jury views all court personnel as persons of authority. All members of the judge’s staff are seen as “official” and, more importantly, seen as neutral. Having asked the witness a leading question and having received a rambling non-responsive answer, turn to the court reporter and ask, “May I please have my question read back to the witness?” The courtroom will grind to a chilled silence as the reporter locates the question and slowly reads it back. The jury will listen intently to the question being read back and often will listen with more anticipation for the answer. This technique also can be a subtle method of inviting the judge to get involved by directing the witness to answer.
4. Neutralize “I don’t recall.”
First, neutralize the witness by carefully exploring the scope of the absence of recollection. Demonstrate the witness’s inability to testify on as broad of a range of issues as possible.
Next, demonstrate the implications of the witness’s failure to recollect for the jury:
Q: Who was present at the drug buy of January 1, 1993?
A: I don’t recall.
Q: If you don’t remember who was present at the meeting, then I take it that you can’t contradict Mr. Thompson’s testimony that my client was not present.
Then, demonstrate that the witness’s recall of other contemporaneous events is unimpaired. Set up the witness for this approach during background examination before asking about the key events.
Finally, show that the witness has a selective memory. Refer to his direct testimony or evasive reactions on cross-examination to point out that he has no problem recalling information that is helpful to his side.
5. Turn the tables on the witness who asks for definitions.
You ask the witness a question (e.g., “Have you ever conducted an identification procedure before?”), and he asks you to define your terms (e.g., “That depends on what you mean by an identification procedure”). This type of response disrupts the flow of cross-examination and puts you on the defensive, which is precisely what the witness is trying to do. He is seizing control, while gaining time to formulate a response. Use this simple and effective technique to turn the tables on this type of witness quickly and decisively, and to regain control of the cross-examination: Ask the witness to state his or her definition of the term, and then incorporate it into your question. For example:
Q: How would you define “identification procedure,” Officer Smith?
A: Well… a photospread, a physical lineup or a show up.
Q: Using your definition, have you ever performed an identification procedure?
About the Authors
Robert K. Gill is Deputy Director of the criminal division of the Tarrant County Criminal District Attorney’s Office. He is a graduate of the University of Illinois and Southern Illinois University School of Law. Before taking the bench, Judge Gill served eleven years as an assistant criminal district attorney in Tarrant County. Judge Gill has been Board Certified in Criminal Law since 1988.
Mark G. Daniel practices with the Fort Worth office of Evans, Gandy, Daniel & Moore. A former Assistant District Attorney in Tarrant County, Mr. Daniel has been in private practice since 1983, devoting his practice to criminal defense at the trial court level. In 2009, he was named Lawyer of the Year by the Texas Criminal Defense Lawyers Association.