Cross-examination - The Art of Cross-examination

The Art of Cross-examination

Cross-examination is considered an essential component of a jury trial because of the impact it has on the opinions of the judge and jury. Few lawyers practice trial law or complex litigation and typically refer such cases to those who have the time, resources and experience to handle a complex trial and the commitment involved to complete a trial successfully. Few attorneys get the practice necessary to develop the techniques needed to do an effective job cross-examining a witness.

It is sometimes referred to as an art form, because of the need for an attorney to know precisely how to elicit the testimony from the opposing witness that will help, not hinder, their client's case. Typically a cross-examiner must not only be effective at getting the witness to reveal the truth, but in most cases to reveal confusion as to the facts such as time, dates, people, places, wording etc. More often than not a cross-examiner will also attempt to undermine the credibility of a witness if he will not be perceived to be a bully (such as discrediting a very elderly person or young child).

The cross-examiner often needs to discredit a potentially biased or damaging witness in the eyes of the jury without appearing to be doing so in an unfair way. Typically the cross-examiner must appear friendly, talk softly and sincerely to relax the guarded witness. They typically begin repeating similar basic questions in a variety of different ways to get different responses, which will then be used against the witness as misstatements of fact later when the attorney wants to make their point. If it is too obvious the questions are too clearly repetitive and making the witness nervous, the other attorney may accuse the cross examiner of badgering the witness. There is a fine line between badgering and getting the witness to restate facts differently that is typically pursued.

The less the witness says, and the slower the witness speaks, the more control they can maintain under the pressure of a crafty opponent. The key for a witness is to understand the facts that they believe to be the case and not add additional thoughts to those facts, lest they be used to undermine the testimony. Sticking to the brief known facts is key for the witness, making it difficult for the cross-examiner to make the witness appear confused, biased or deceitful. The cross examiner will assume the witness has been told that and begin asking supporting questions about where the witness was, what time it was, what the witness saw, what they said, and sooner or later upon asking again the witness may use a different word that will give the cross-examiner a chance to ask the question again doubtfully and pointedly implying contradiction. The witness will try typically to explain and clarify, which sometimes reveals weakness in the witness's statements of fact. Other times the witness is just being truthful but undermined for the purpose of casting doubt to the jury and or judge.

There is a measure of drama that cross-examination adds to any trial because of the challenging of the statements made by a witness. In the 1903 book titled The Art of Cross-Examination by Francis L. Wellmann much effort is devoted to highlighting components of cross-examination and the impact on trials of the past century. An example of an inflammatory way a question will be asked by a cross-examiner to a witness he was trying to undermine would be "What is your recollection toDAY?" implying it was stated differently yesterday. Simply the accent of syllables can leave a bewildered jury believing they must put their guard up with a witness–or in some cases the cross-examiner if they are not careful. The book freely uses accenting in its dialogue to give the reader such insight as to how cross-examiners rattle witnesses to obtain their desired effect for the jury.

In most common-law countries, cross-examiners are expected the well-established rule in Browne v. Dunn.