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Cross-examination has been described by many as the best way to get at the truth but it is also the best way to test reliability and generally the quality of the evidence proffered by the opposition. An ancient legal maxim states that there is never an outcome of a cause contested that is not mainly dependent on the advocate’s skill in cross-examination. Juries offer a unique opportunity to underscore the frailties of an opponent’s case.
The best cross is no cross. There are many instances when the most brilliant cross-examination consists of “Thank you, your Honor, and Ladies and Gentlemen of the Jury but it is not necessary to cross-examine this witness.” There seems to be a compulsion with some counsel to cross every witness and use those carefully prepared questions, where a skilled advocate knows instinctively there is nothing to gain, and everything to lose. The categories you should carefully consider for the silent cross-examination technique include the scope of cross-examination permitted under the rules, the harmless witness, the unimpeachable witness, avoidance of the baited trap, avoidance of unnecessary reiteration, and avoidance of improper motives to cross-examine. This is especially the case with a jury.
In preparation you must be ever mindful of your objective. Pacing and patience are virtues in cross-examination. Delivery of key points is not just an objective; it is a path upon which the jurors should accompany the lawyer. They must understand step-by-step where the cross-examination is headed. The adage that one should ask only leading questions is perhaps the oldest rule of cross-examination. It is an old rule because it is a good one. Leading questions are most effective because they essentially allow the cross-examiner to testify and the witness to verify.
Counsel should be able to adapt their style depending on the type of witness but never insult the jury’s intelligence by trying to be too clever. Knowing when to quit and not beat the witness to death is an imperative. It is distressing to observe looks on juror’s faces indicating “OK, we get it already.”
Be ever mindful of the rules of evidence so to avoid not only objections and interruption from the opposition or, God forbid, the interference or objection from the Judge. If there are areas that may be contentious it is often wise to clarify with opposing counsel or the Judge, in the absence of the jury and so avoid a needless interruption. Consider who your jurors are and oft times you can tailor questions to the interests of the mechanic, or the teacher in the group, always respecting their intelligence.
Treat the witness with respect. Juries often expect aggression and this can work to your advantage when you proceed gently and respectfully. A good rule of thumb is that juries are inherently sympathetic to witnesses.
Do not quibble over minor details. When you argue over minor points, you risk losing credibility with the jury. Analyze your cross-examination and ask, “What are the most important points I need answered?” If the answer doesn’t fall into one of those major points, you probably don’t need to quibble with the witness. Minor discrepancies may be all you have, but be sure it is worth the effort. Pick your battles. When you fight over minor details, you’ll usually lose more than you gain. Don’t lower yourself to his or her level. When that happens, jurors get offended. In a normal conversation, you wouldn’t be limited to “yes” or “no,” you’d be given a chance to explain your answer. When lawyers curtail the answers, jurors sense that the lawyer isn’t playing fair. Of course, there are times when you need a “yes” or “no” answer, and there are several techniques you can use to limit witness’s answers to “yes” or “no” without alienating the jury. But evaluate each witness carefully. Ask yourself if the witness is honestly trying to answer the question, or if they’re trying to be evasive. If they’re honestly trying to answer your question, you’ll appear unfair if you cut them off. Instead, ask shorter questions and phrase them more carefully. You’ll get more single-word responses, and you won’t alienate the jurors.
Many inexperienced lawyers think that for their cross-examinations to be successful, they must crush the witness and expose them as a liar. In truth, most jurors aren’t that willing to believe that a witness is lying. In their experience, most people are good and honest, so when witnesses swear to tell “the truth, the whole truth, and nothing but the truth,” they do. When you organize a cross-examination along the lines that the witness is a disreputable liar you better be able to deliver the goods. If you don’t, you will risk alienating the jury.
One of the dangers of cross-examining witnesses is that jurors almost always identify with the witness, rather than the lawyer. When the jurors walked into the courtroom for jury selection, they, too, were on the receiving end of the process. They’re going to identify with the person who is under scrutiny rather than with the person who asks the questions. That means that they can feel you’re abusing your power simply because you’re aggressively cross-examining a witness.
A better way to organize your cross-examination is to start from the presumption that the witness has an honest but mistaken belief in what they are saying or is relying on bad information. Jurors relate to that concept much more easily.
Keep them involved. Lots of direct eye contact. Logistically stand by them. When the witness responds to you, he or she is then responding to the jury as well. Become the Thirteenth juror. Remind them in your closing that you are there to test the witness and hopefully asked the questions they would ask and thereby set the stage. Intros like “please tell the folks here” or “tell the members of the jury” or even “I’m sure the members of the jury would like to know,” these openers underscore that the question is for their benefit.
It is important to remember that the cross-examiner is communicating both with the witness and with the jury. That means the lawyer must establish eye contact with both. Probably the best time for eye contact with the witness is when asking a question and the best time to establish eye contact with the jury is at some time during the answer and just before asking the next question. Eye contact with the jury should be brief and is best established by looking slightly above their eyes.
Watch the juries’ response to the witness’s answers. It’s beautiful to behold when you see a juror smile, smirk or role their eyes at an answer and can open a new door to enter when a jury is clearly not believing a witness, just don’t go too far. The jury will be judging you as the lawyer during the cross-examination. The jury will watch you closely as to how you produce evidence during cross-examination and whether you are courteous and respectful to the witness. If you can bring out facts without being discourteous to the witness or forceful, the jury will appreciate it; however, do not avoid being forceful if that is what it takes to reveal the truth. The skill is in knowing how to be forceful and not offensive and how to maintain the right impression. The jury believes that the cross-examining lawyer is trained to destroy the credibility and the testimony of the witness. Therefore, they initially indentify with the witness and not with an educated and experienced assailant. Hence, it is important for the lawyer to take the high road, to look good, to use his or her power effectively and with respect, and to tread lightly and carefully, at least at first, and treat the witness humanely. There will be plenty of time to express indignation or to deal with the witness aggressively. Even then, it is important to remember that the primary purpose of cross-examination is to help advance the story of your client and not necessarily to destroy the witness or make them look bad. Jurors have human emotions and responses and are much more likely to accept what they are told by a person for whom they have positive feelings. In simple terms, never gratuitously bully, heckle, belittle or humiliate the witness, no matter how tempting it may be. That sort of behavior is unattractive to most right-thinking people. You’ll need to pick up on the small non-verbal clues that they’re sending you, and you can’t do that if your head is buried in your notes. Are they telling you to speed up? To slow down? Are they confused? Bored? Do they need part of the testimony repeated? If you don’t look at them and read those clues, you’ll never know. Make sure that you’re making eye contact with whom you want to persuade. And since you’re trying to persuade the jurors, rather than your legal pad, try to minimize how much time you spend looking at your notes.
The stuff you take to the podium can affect your questioning. Those notes will become a mental crutch, and your eyes will never leave the page. Avoid excessive use of notes of specific questions and attempt creating a conversation with the witness that you control. Jurors take their clues from you about how they should treat witnesses. If you act like a witness is important, jurors are more likely to think the witness is important. If you act as if the witness’s testimony doesn’t matter, they’re more likely to dismiss what the witness says. You can even hold eye contact with the witness for an additional moment after they finish answering, to show that you’re paying close attention to what they’re saying and encourage the jury to pay more attention, too. Repetition of a good answer can also be effective.
Also, when you get a good response, write it down or even pretend to write it down to underscore its importance. The jurors are watching everything. Your demeanor is all important and sometimes a gesture signifying that the answer is exactly what you expected despite the fact you are totally blown away with the answer, lets the jury think your cross is on track and the witness is not getting the upper hand.
Keep it plain and questions in a form that you are telling the witness, experts for instance, that they should use plain language and not highly technical jargon that sounds like they are talking down to the jury. Always use language that makes it sound like you are trying to assist them not confound or confuse them.
Relax. Counsel will appear more confident, and the jury will sense this confidence.
It seems axiomatic to state that the cross-examiner should listen carefully to the answers from the witness. However, jurists and other observers of courtroom behavior advise that one of the most frequent mistakes of the cross-examiner is asking a well-planned question and immediately moving on to the next question while ignoring the witness’s answer. Being so wrapped up in the questioning as to miss the effect, nuances, innuendos, and manner of delivery of the answer is a self-imposed trap for the nonobservant cross-examiner. The ability to assimilate the questioning to the answers is one of the hallmarks of a master cross-examiner.
– Terry LaLiberté Q.C.