EFFECTIVE CROSSEXAMINATION By: Atty. Rogelio A. Vinluan IBP-Davao 9 December 2010
INTRODUCTION Cross-examination in the words of Wigmore, “is beyond any doubt the greatest legal engine ever invented for the discovery of truth.”
The problem is that cross-examination is the most difficult skill for the advocate to master.
Cross-examination is the phase of trial in which the trial advocate is least in control.
The good news is that good or competent cross-examiners are not born; they are made.
The art or science of cross-examination has established guidelines, identifiable techniques, and definable methods which can be learned.
Why cross-examination is difficult: Not rehearsed. Two difficult decisions: (a) whether or not to cross-examine, and (b) when to stop. 3. Requires special ability to communicate with the witness.
Cross-examination requires courtroom improviation based on: Thorough knowledge of the case. Mastery of the rules of evidence. 3. The testimony on direct of the witness.
An outstanding memory for what the witness said during direct examination and how the witness said it. 5. The lawyer’s skills in trial advocacy.
What is effective cross-examination? One that successfully accomplishes the goals of the cross-examiner. The net effect is to further the theory of the cross-examiner’s case.
3. Scores as many useful points as possible. 4. Does not allow the witness to score any points against the cross-examiner’s case.
The need for preparation The key to a successful cross-examination is thorough preparation before trial. Preparation involves a complete mastery of the facts.
3. Preparation of a strategic plan. 4. Note all prior inconsistent statements of the witness.
Why cross-examination is risky More cases are lost through inept cross-examination. It is a two-edged sword. The witness is not friendly.
What are the purpose of cross-examination Elicit favorable testimony. Impeach or discredit the witness or his testimony.
Which is the more important purpose or objective? The more important objective is to elicit admissions favorable to the theory of the cross-examiner. The cross-examiner should always consider eliciting favorable testimony from the witness before attempting a destructive cross-examination.
When to cross-examine? You must appraise the advantages and disadvantages, and weigh the risks. Ask yourself the following questions: a. Has the witness hurt your case?
b. Is the witness important? c. Was the testimony of the witness credible? d. Did the witness leave something out on direct examination that might get in if there is cross-examination?
e. What are your realistic expectations on cross? f. What risks do you need to take?
What is the best style of cross-examination? You should be yourself. Use the style that is natural to you. 3. You should appear confident and in control.
4. You should also be a good actor. 5. A fair and courteous manner is more effective. 6. “Be mild with the wild, shrewd with the crafty, confiding with the honest, merciful to the young, the frail, or the fearful, rough to the ruffian, and a thunderbolt to the liar.”
Cardinal principles of cross-examination The questions must be directed toward a specific goal. Start and end crisply. 3. Know the probable answer to your question before you ask the question.
Listen to the answer of the witness. Don’t argue with witness. 6. Don’t ask one question too many. Have your cross-examination establish as few basic points as possible. 8. Don’t repeat the direct examination.
Control of the Witness Control of the witness is critical. The objective is to require the witness to answer only the question put to him.
3. Control of the witness is achieved through the form and phrasing of the question: a. Use leading questions only. b. Ask only a single new fact per question.
Leading questions only Never use a question that is not strictly leading. The question must declare the answer. 3. Avoid “soft” or open leading questions.
Examples: a) “Was it cold on the night in question?” b)Did you see another man along with the defendant?” c) Were you speeding down Ayala Avenue?”
4. Avoid enemy words that give control to the witness: who, what, when, where, how, why, explain.
What are the advantages of the leading question? It limits the response requested of the witness. It permits the advocate to choose his own words in describing the event or matter with which the witness is confronted.
Examples: Q: What did the police officer do next? A: The police officer subdued the defendant.
Compare to: Q: The police officer smashed Mr. Santos across the mouth with his night stick? A: Yes, sir.
3. It permits the cross-examiner to choose the emotion of the answer and the facts to be stressed. 4. It permits the cross-examiner to control word selection, tone of voice, and word emphasis.
Example: Q: Did you put that in your report? A: No, I didn’t.
Compare to: Q: Nowhere in your report did you ever mention that? A: No, I didn’t.
What is the meaning of “The question must declare the answer? A true leading question does not merely suggest the answer, it declares the answer . The leading question must be a “questment”, i.e., a question that is phrased as a statement. The question is a short declaratory statement with a question mark .
Example: • How do you feel about drinking? b) Do you like to drink? c) You like to drink?
One new fact per question Ask a single new fact per question. The purpose is to isolate the fact in dispute.
Example: • See Spot? b) See Spot run? c) See Spot run home?
Another example: • You hit him? • You hit him with your fists? c) You hit him hard with your fists?
3. If a question contains more than one fact, the cross-examiner who gets a “no” answer cannot be certain to what fact the denial applies.
Example: Q: You saw the red car come around the corner, and sped through the red light? A: No.
Compare to: Q: You did see a car? A: Yes. Q: It was blue? A: Yes. Q: The blue car came around the corner. A: True.
Q: It drove through the red light? A: Yes. Q: As it drove through the red light, it was running at around 60 miles per hour? A: I think so.
4. By establishing one fact at a time, the cross-examiner adds impact to the answer.
Example: Instead of asking the witness the question: “You saw the six-foot, five-inch, 225-pound accused beat the five-foot, four-inch 145 pound victim?”, the following one-fact per question method builds up emotion and creates interest as the individual facts pile up:
Question 1: Q: You saw the fight? A: Yes. Question 2: Q: John, the big guy, was fighting? A: Yes.
Question 3: Q: John was six-feet, five-inches tall? A: Yes. Question 4: Q: John is a big man? A: Yes.
Question 5: Q: Dave is only five-feet, four-inches? A: Yes. Question 6: Q: Dave is a much smaller boy? A: Yes.
Question 7: Q: John weighed 225 pounds? A: Yes. Question 8: Q: Dave is 155 pounds? A: About that.
Question 9: Q: John was a much bigger person. A: Yes. Question 10: Q: John was a much heavier person. A: Yes.