PREPARING TO CROSS EXAMINE A WITNESS :
1 PREPARING TO CROSS EXAMINE A WITNESS
1.Have command of the case.
To
an outsider, a cross examination might seem like a series of random
questions, but the process is actually incredibly well-planned and
requires hours of preparatory work. It’s essential to know the ins and
outs of the case in order to ask just the right questions. Start
conducting research for the cross examination as far in advance of the
trial as possible.
· Learn
all the facts of the case, not just those you need to know before the
trial begins. As you gather information to construct your case,
determine how the cross examination will factor in. For example, if
you’re cross examining a doctor who is serving as an expert witness,
figure out how it will help your defense if you show the person to be in
some way unreliable. An entire defense can hinge on discrediting a
witness.
·Conduct
extensive research on the witness you’re going to cross examine.
Knowing all about the person’s background will help you figure out which
questions to ask to get the answers you need to advance your defense.
Make sure you can back up all of your facts with sources like signed
statements, transcripts and official documents.
2. Make a cross examination plan.
This
is the agenda you’ll follow when it’s time to cross examine the
witness. Every single question you’re going to ask, as well as the
answers you anticipate receiving, should be planned out in advance. The
goal is to ask a series of to-the-point questions that will steer the
witness into giving answers that benefit you by revealing the holes,
biases and weak points in the witness’s testimony.
Write
out the questions in one column and the answers you want to receive in
the other. Write out everything you want to say in detail and try to
fully anticipate what the witness will say. Ask the witness questions
about the specific evidence, whether it is for purposes of explanation,
clarification, or to dispute something else that has been said during
the course of the trial.
·Every
answer should be backed up by research you conducted. For example, if
you ask a witness how long he worked at a certain medical institution,
you should have documented proof from the hospital that he or she worked
there for a certain amount of time. That way, if the person gives an
answer you didn’t anticipate, you’ll have evidence to the contrary.
3. Do not plan to ask questions to which you don’t know the answer.
It’s
essential that you know the case so well that you can predict how the
witness will answer your questions. Otherwise, the outcome might be a
surprise and end up hurting your argument. Each question you ask should
be calculated to drive the witness further toward admitting to a
discrediting fact or weakness.
·If
you know the facts and have research to back them, you should know the
answers. For example, you might ask the expert witness whether he or she
was working on the night of June 19. You should already have
documentation showing that he or she either was or was not working. If
the witness gives a surprise answer that you know to be untrue, you’ll
have the facts you can use to impeach the person.
4. Ask your questions at the deposition.
Have
the entire cross examination plan ready to go by the date of the
deposition, so you can see how the witness will respond. Consider it a
test run to determine whether your plan is going to work. After the
deposition, edit the plan to streamline it for the date of the actual
cross examination.
·If
you don’t like an answer that was given, you can decide to omit that
question at the trial. You should only ask questions with answers that
are favorable to your case.
·If the person answers one way at the deposition and later answers differently, you’ll have grounds to impeach him or her.
When
the witness is asked about the same subject more than once,
inconsistencies are bound to arise, and it’s your job to find them and
use them. At every opportunity, ask the same questions and record the
answers.When you find something you can use, craft questions that will
make the inconsistencies apparent to the jury and judge during the cross
examination.
·Find
biases as well. Starting the cross examination with the witness’s bias
can cast a shadow on the rest of his or her testimony.
·For
example, you could begin by asking the witness how many times he has
performed a certain type of surgery. If he said “8 or 9” during the
deposition, and this time he says “15 or 20,” refer back to the
statement made during the deposition in your second question.
PART: 2 CRAFTING EFFECTIVE QUESTIONS
1.Include just one fact per question.
If
your questions contain too much information, you’re more likely to get
an answer you didn’t expect. Keep your questions simple with just one
important fact each. Take baby steps, having the witness confirm each
fact with a “yes” before moving forward. In this way you can advance
your argument slowly but surely, and you’ll retain control over the
situation.
2. Ask mostly leading questions, not open-ended questions.
Almost
every question should be constructed in such a way that the witness has
to answer with one word: “yes.” Lead the witness by stating a fact in
the form of a question, then moving on to the next fact. This allows you
to stay in control of the cross examination, eliminating opportunities
for surprises to emerge. It will look as though the witness is agreeing
with everything you say.
·For example, instead of saying “What is your relationship to the defendant?” Say, “You met the defendant in January of 2020, ”
·Asking
open-ended questions gives the witness too much leeway to give an
unpredictable, subjective answer instead of a simple confirmation of the
fact you already know to be true.
3. Use non-leading questions strategically
In
some cases, it’s better to ask a question that’s a little more
open-ended than a simple “yes” question. A long series of leading
questions can be tedious for the jury and judge to listen to, and
sometimes you can make your point better by having the witness speak.
·When
you’re cross-examining an expert witness, for example, it can be more
effective to have the information come from that person’s mouth,
especially if you plan to loop back and catch him in an inconsistency.
·However,
even open-ended questions should be carefully controlled. Be relatively
sure of what answer the person will give, and follow up with more
leading questions to keep the cross examination on track.
4. Make sure the questions advance the trial plan.
There’s
no need to bring up inconsistencies unless they advance your case. Do
not ask pointless questions, because with every extra question you ask,
the chance of a surprise coming up increases. Every question should take
you closer to the outcome you want.
·Try
simply stating the fact and using your tone of voice to indicate it’s a
question. For example, you could say “You met with Advocate R on the
morning of August 8.” The witness will answer “yes” even if you don’t
use the word “correct” to indicate it’s a question.
PART: 3 CONDUCTING THE CROSS EXAMINATION
1.Stick to the plan.
Do
not stray from the cross examination outline if at all possible. The
entire examination should be planned out so that you know exactly what
to expect. You might be tempted to ask extra questions in reaction to
something the witness says, but only do so if you’re positive it’s going
to advance your case, and you’re reasonably sure of what the answer
will be.
·If
you get an answer you don’t like, don’t argue with the witness. This
will make you look bad, not the witness. If you have evidence that an
inconsistency took place, you can impeach the witness
2. Tailor the questions to the individual.
Don’t
treat every witness exactly the same; home in on weak spots that will
make the cross examination go your way. After practicing with a variety
of witnesses, you’ll start to understand how to adjust the tone and
style of the cross examination to the visible responses of the jury, the
judge and the witness.
·Ask
easier questions in the beginning to make the witness feel comfortable,
and lead up to the more complicated questions after trust has been
established with the witness.
·Be persistent and aggressive without being a bully.
The
witness’s response to the final question will be the last thing a jury
remembers. Once you’ve effectively run down your list of questions and
made your point, it’s time to stop before you ask one question too many.
If you crafted your outline well, you shouldn’t need to ask additional
questions.
4. Know when ‘’not’’ to cross examine a witness.
If
you don’t think the examination will advance the case, it can be
counterproductive. Avoid cross examining just in case something useful
crops up, since something detrimental could just as easily arise. If you
don’t have enough backup to ask strong leading questions, don’t risk
it. Focus your argument on a weaker point in the prosecution
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