Trial Advocacy

Cross-Examination

Cross-examination is the questioning of a witness called by the opposing party.

Cross-examination happens after direct examination.

Leading questions are permitted on cross, and you will want to take advantage of them. You want to control the narrative and not let the witness talk too much, so try to just ask yes-or-no questions that you already know the answer to.

Leading Question

A leading question is one that suggests a certain answer.

Examples:

  • "You're wearing a purple shirt, right?"
  • "Wasn't the light green?"
  • "You were at the bank, weren't you?"

Leading questions are usually formed by adding a tagline to statement.

Tagline

A tagline is a phrase added to the end of an otherwise declaratory statement to turn it into a leading question.

Common taglines include "...correct?", "...isn't that right?", "is that correct?", "weren't you?"

Mix up taglines; don't just repeat the same phrase over and over again.

An otherwise declarative sentence can be turned into a leading question by tone and context. (Just saying a sentence is not a question though, despite what Prof. Rost says.)

Leading questions not permitted on direct examination, only cross-examination.

You can have three, usually contradictory, goals during cross-examination:

  • Destroy the witness
  • Confirm your own preexisting facts
  • [Draw out new facts]

Adverse witnesses are never going to give you the case. Just ask questions that support your theory and let the jury make the inferences.

  • Don't ask "You were speeding?". Ask when work starts and what time it was.
  • Don't ask "Was the sun in your eyes?". Ask the time and the direction heading.

Once you get all you think you can get, stop.

The main ways students lose points on cross-examination are open-ended questions, compound questions, questions that contain too many facts, questions that state the conclusion that you want the jury to reach ("one question too many"), failure to use signposts, reiterating facts from the direct, ending on an objection.

You don't want to just bring out bad facts, you need to make a complete point to lead the jury where you want to go.