Cross-examination almost always ventures into dangerous territory. The reason for this is that the witness is usually adverse or hostile to your client’s position.
Therefore, you must control the witness and, more particularly, the witness’ testimony. This can be accomplished by following certain guidelines during the cross-examination.
1. Do not ask a question unless you are reasonably certain that you already know the answer. (Some would say do not ask the question unless you are certain you know the answer). Cross-examination is not the time to discover new facts. It is not the time to be curious. Remember, curiosity killed the cat. It may likewise kill your case.
2. Treat the witness fairly. You should not be hostile, especially if you want to gain concessions from the witness, including that he/she may have been mistaken in his/her testimony on direct examination.
3. Use leading questions. A leading question suggests the answer, which is usually “yes” or “no.”
4. Never ask open-ended questions—questions that ask “how” or “why” or that require the witness to explain. These types of questions can lead to disaster. Never allow a witness to explain anything on cross-examination.
5. Listen to the answers. Do not mechanically ask one question after another without listening to the witness’ answers. The answers may contain the favorable testimony that you are seeking to obtain in the crossexamination. When this happens, you have accomplished your task and you should consider ending your cross-examination. On the other hand, if you do not listen to the answers you may not hear damaging testimony that should be addressed.
6. Do not allow the witness to repeat (and therefore reinforce in the mind of the judge) the testimony given on direct examination. There is no reason to ask a question that allows the witness to repeat his testimony. The odds are very small that the witness will testify differently on cross examination. You know the testimony given on direct examination, the witness knows the testimony, the judge knows the testimony. So just dive into your cross-examination.
7. Keep your questions “short and sweet” and in plain English. Your goal is to obtain one fact with each question. Ideally, each question should be posed as a declaratory statement of a single fact calling for affirmation by the witness. This will make the cross-examination much more manageable for you, prevent objections from your adversary (for example,that you are asking compound questions), and allow the judge to more easily follow and understand your cross-examination.
8. Ask the important questions at the beginning and end of your cross-examination. People, including jurors, remember best what they hear first and last. Conclude your cross-examination on a high note—your strongest point.
9. Your cross-examination should be brief. Remember, you are trying to “score points” to be used in your closing argument. In a lengthy cross examination, your strongest points will be lost and the less significant points will be forgotten by the judge.
10. Control the witness’ answers. The best way to control the witness’ answers is to ask simple and clear questions. By doing so, you will not give the witness an opportunity to provide harmful testimony. If your question calls for a “yes” or “no” answer and the witness provides additional testimony that is harmful to your case, you should ask the court to strike the testimony as being non responsive to your question. Although you cannot “unring a bell,” the judge eventually will understand that the witness’ conduct is improper. If the witness answers a question other than the one you asked, ask it again, and yet again if necessary.
11. Do not ask one question too many. Remember the purpose of cross examination — you are trying to obtain favorable testimony so it can be used in your closing argument. You need not ask the ultimate question that will drive your point home