Chapter 3 – Cross Examination – Yes or No?
Cross-examination is the most anticipated part of most trials, which many writers call an art form. But the first question that needs to be asked, is whether you should cross-examine at all? Examination is not required of every witness and the attorney shows the judge (or jury) a certain amount of confidence, by stating “ we have no questions for this witness”. Ask yourself the following, before rising to commence your cross-examination.
- Has the witness hurt your case? Witnesses who merely establish a foundation or a technical element may not need to be examined further.
- Is the witness important? When the witness has a significant role, some type of cross-examination may be required or it may invite a negative comment in closing argument by opposing counsel.
- Was the witness credible? The witness may have contradicted your opponent’s other witnesses or simply not be believable.
- Did the witness give less than expected on direct examination? Possibly, an important part of his or her testimony was omitted. Why open the door? Possibly, the witness purposely withheld portions of testimony hoping that you would pursue it on cross.
- What are your realistic expectations on cross? Do you have any real ammunition to use during cross? If you can’t score points, avoid a cursory inquiry.
- What risks do you need to take? You must always do a risk/benefit analysis. There are very few perfect cases. Therefore, trials always involve a calculated risk. If you have a winner, you want to keep risks at a minimum. If you have a loser, you may need to go for it during cross.
Remember the purpose of cross-examination is to either elicit favorable testimony or to destroy or discredit the witness. Keep that it mind, in your analysis as to whether to cross at all.
