Objection Background

A legal objection is raised by an attorney within a trial, with regard to a specific question or a piece of evidence introduced into that trial. Lawyer raises objection
when they want that question or evidence to be disallowed from the trial as a whole. Objections generally have to be made on specific grounds, according to
specific rules for procedure and conduct.
Misleading
One objection which a lawyer might raise is an objection based on the grounds that the question being objected to was ambiguous, misleading, confusing, vague,
or unintelligible. All of these terms mean generally similar things, although they do have some nuance between them. Ultimately, however, an ambiguous,
misleading, confusing, vague, or unintelligible question is a question without a clear, obvious, succinct, factual answer.
Argumentative
A lawyer is not permitted to be argumentative with a witness in any given trial. This means that a lawyer is not permitted to repeatedly as the same question of a
witness, nor is the lawyer allowed to directly dispute what the witness says in the manner of an argument. Any such questions might be objected to on the
grounds that they are argumentative.
Asked and Answered
Once a question has been ased and answered, it is generally not allowed for that question to be ased again. !f the question is ased again, then the opposing
lawyer might object based on the grounds that the question has been ased and answered. "ometimes, lawyers will attempt to repeat questions for the sae of
emphasis, and this is disallowed through ased and answered objections.
Speculation
A speculative question or speculative evidence is normally disallowed from a trial on the grounds that it is not based in fact. "peculation arises when a witness is
ased to answer a question to which he or she does not now the immediate, factual answer, or when a witness provides an answer which is not based on
immediate facts of his or her e#perience. A lawyer can object to speculation to have it disallowed.
Hearsay
$hen a lawyer objects to evidence based on hearsay, the lawyer is objecting to a type of evidence which is related secondhand, from questions ased or answers
given outside of the court. !f, for e#ample, an individual is relating evidence based on what he or she was told by another person outside of court, then that would
be hearsay evidence, and could be objected to.
Incompetent
An attorney might raise an objection based on grounds of incompetence if a witness were not considered to be competent for providing answers to questions. A
witness might be considered incompetent if he or she were not mentally competent and stable, or if he or she were particularly young, for e#ample.
Inflammatory
An inflammatory statement or question is a question which is designed to produce a reaction within the jury, particularly in terms of inflaming the jury against a
witness or the defendant. An inflammatory statement or question is normally grounds for an objection and for the disallowing of the question or the evidence, as it
is manipulative and irrelevant.
Leading uestions
Leading questions are questions which are designed to suggest an answer within the question. Leading questions are often yes or no questions, though not all yes
or no questions could be accused of leading the witness. Leading the witness is objectionable only if the lawyer asing the leading questions is e#amining his or
her own witness, and is not asing questions of a hostile witness.
!rivilege
Objections based on privilege are objections based on the notion that a witness does not have to give testimony or evidence in certain areas if that witness holds
privilege of particular types. %or e#ample, a doctor witness might not have to provide answers to questions that violate the privilege of doctor patient confidentiality.
Immaterial
!mmaterial questions, or irrelevant questions, can be objected to by the opposing counsel within a trial on the grounds that they are not important to the matter at
stae in the trial. !mmaterial questions are often designed for another, manipulative purpose, which is why they are made objectionable.
"arrative
An objection to questions which might result in narration on the part of the witness is allowed because narrative answers do not give opposing counsel the
opportunity to object to questions or evidence prior to the introduction of those questions or evidence.
& "ee more at' http'((trial.laws.com(objection)sthash.*L+,#-.a.dpuf
/0ead the 112A monograph, #ross$ %&amination in #riminal #ases' 3
(H) #*OSS %+AMI"%,
$hy cross&e#amine a witness4 5y view is that it6s done with the principal purpose of giving you a basis for the arguments you will
mae in summation at the end of the case.
There are at least two different types of cross&e#amination'
7+8 Supportive (Concession Based) Cross-Examination' This type of cross is employed when you want to as questions
and get answers that support and advance your case. !n a supportive cross, you won6t use your questions to attac, pillage, and
plunder the witness. !nstead, you use cross to obtain favorable information, e.g., admissions, fill&in&the&gaps in the story facts, etc.,
from the witness. Thin about it. !f you can develop favorable evidence from the opposition6s witness, you can then argue, 9Their
own witness said 7insert the testimony favorable to your position8.9 !t adds credibility to your evidence if it comes from an opposing
witness. !f you are going to rely on the evidence from an opposition witness, it may not mae sense to attac the credibility of that
witness. Occasionally, the testimony on direct may be so helpful to your theory of the case that you simply have the witness repeat it
on cross and pass the witness. !n most instances, the favorable evidence that you will accrue from opposition witnesses will come in
small increments. "eldom will you receive a single blocbuster answer that obliterates or sews the opposition6s theory of the case:
however, it does happen.
7;8 Discrediting Cross-Examination' A discrediting cross&e#amination occurs when you attempt to discredit the believability
of a witness6 factual testimony by showing that it doesn6t jibe with common sense and(or with what others say. -ou may want to use
cross to show what the witness does not now or what the witness did not do in investigation. -ou may want to employ cross to
impeach the witness. <videntiary procedure and rules provide a number of traditional modes of impeachment. %or e#ample, a
witness may be impeached by proof of inability to understand the nature and obligation of an oath to tell the truth, 0ule =>+7a8
T0< 7children and the insane8 and 0ule =>? T0<: proof of difficulty in perception, 0ule =>; T0<: proof of faulty memory, 0ule =>;
T0<: proof of inability to communicate, 0ule =>@ T0<: proof of bias, 0ule =+?7b8 T0<: proof of interest in the outcome: proof of
motive to falsify: proof of corruption, as when a witness has been offered an incentive, reward, sentencing concession, or bribe for
her testimony: proof of the witnesses admissible prior criminal convictions, 0ule =>A T0<: proof of the witness6 prior inconsistent
statement 7B!"8, 0ule =+? 7a8 T0<. "ometimes you can discredit an opposition witness by something in addition to or other than
cross&e#amination, e.g., where you use another witness to prove the target witness6 bad reputation for telling the truth per 0ule =>C
T0< or where you show under 0ule =+?7a8 T0< through e#trinsic evidence, e,g., another witness, that the target witness, who has
denied or equivocated maing a B!" did in fact mae the B!" that the target witness has denied maing.
#O"-A#-I". -H% (I-"%SS (HO (O"/- -AL0 -O )O1 $ Building )our Impeac2ment
During your pretrial investigation, why should you try to contact an opposing witness who probably won6t tal with you4 %or the
impeachment value as you begin your cross. 5ae it a habit to send a letter of inquiry to each opposition witness. "end the letter by
certified mail, return receipt requested. !n the letter, appeal to the witness to spea with you or your investigator about what the
witness nows about the case. 5ae clear that the witness may pic a date, time, and place that is convenient to the witness. !n the
alternative, have your investigator mae a phone call to the witness asing the witness to discuss the facts. $hen the witness
doesn6t respond or responds negatively you may want to use your cross by showing that the witness is prejudiced against your side
of the case and biased in favor of the other side.
Eere6s an e#ample of the dialog a cross&e#aminer might employ to demonstrate the prejudice and(or bias of an opposition
witness who has refused to discuss the during the investigative phase ' F' !6m 7your name8, and !6m here to spea for (name the
defendant8. F' Do you recall receiving a letter from me 7indicate the date8 asing if ! might discuss 7name the defendant8 case with
you4 F' And would it be fair to say that you didn6t respond to my letter asing if you would discuss what you now about the case
with me4 or F' Do you recall an investigator from my office by the name of (state the investigator's name8 contacting you by
telephone on 7state the date8 and asing if you would discuss what you now about this case with us4 F' And you told (name the
investigator8 that you wouldn6t discuss the case with him(her, didn6t you4 F' "o this is the first time that our side has had the
opportunity to tal about what you now about the accusation against 7name the defendant8. F' ,y the way, did you tal to the
lawyers or investigators for the other side4 F' 7!f 9yes9 to the previous question, consider asing some of the following.8 $hen4
$here4 Eow long4 $ho was present4 Did you give them a written statement4 Did they tae notes4 $ere you subpoenaed to come
to court or did you come on your own4
-*IAL 3IS#O4%*) 31*I". )O1* #*OSS 5(it2 %mp2asis on t2e -e&as !ractice6
!n Te#as criminal cases, advocates have two lethal weapons in your advocacy arsenal that you must learn to employ during cross&
e#amination in criminal cases.
#ourtroom !roduction of Any (riting 1sed by a (itness to *efres2 Memory & The first courtroom discovery weapon is 0ule
=+; T0< 7 %0< =+; is similar.8 that allows you, at the outset of your cross, to obtain trial discovery from the witness or the opposing
lawyer of any writing used by the witness, either before testifying or hile testifying, to refresh the witness6 recollection for the
purpose of testifying. !f you can show that such a writing was used by the witness, this writing must be produced if you request it. !f
it is not produced, the remedy is any order that the trial judge believes that justice requires, except, that if you are the defense
attorney and the prosecution refuses to produce the writing, the required remedy is one striing the testimony of the witness, or if the
trial court in its discretion determines that the interests of justice so require, a mistrial. Under 0ule =+;, you are entitled to discover
the writing, e#amine it, use if for cross&e#amination and introduce in evidence those parts which relate to the testimony of the
witness. !f there is a dispute concerning the relevance of certain parts of the writing to the witness6 testimony on direct and the trial
court rules in camera that certain portions of the writing are not subject to trial discovery, any portion withheld over ob!ection 75ae
sure you object to the court6s refusal to allow the trial discovery of the precluded portion of the writingG8 must be preserved for the
appellate record.
Eere6s an e#ample of the dialog a cross&e#aminer might employ to gain access to writings used by the witness to refresh
memory before testifying' F' .ow, you were involved in this case bac on 7state the relevant dates84 F' At any time before you too
the stand to testify here today did you read over any ritten material to refresh your memory about what happened bac on 7state
the prior dates84 /,y 9any,9 ! mean anything in writing, whether you wrote or someone else wrote it. Do you understand what ! mean
by the word 9any943
Eere6s an e#ample of the dialog a cross&e#aminer might employ to gain access to writings used by the witness hile
testifying ' F' -ou have some written notes in front of you 7in your pocet8 right now, don6t you4 F' -ou6ve referred to those notes
just a little while ago while answering questions on direct e#amination, correct4 F' And are those notes to help you remember while
you are testifying4 F' 5ay ! see those notes4
#ourtroom !roduction of Statement5s6 of -estifying (itness for 1se in #ross$%&amination & The secondarrow in your
courtroom discovery quiver is Te#as 0ule of <vidence =+H T0< and %ederal 0ule ;=.; %ed. 0. 1rim. B. : see also, the so&called the
federal 2encs Act, ;C U"1 "ection ?H>>, providing for disclosure of prosecution witness statements8 that allows each side in a
criminal case, at the outset of cross, to have trial discovery from the opposing party of any witness statement7s8 with regard to
statements that relate to the subject matter concerning which the witness has testified on direct. There can be a claim by the
proponent of the witness that certain portions of the statement do not relate to the subject matter of the direct. !f so, the trial judge
conducts an in camera e#amination of the statement. Any portion of the witness6 statement withheld over ob!ection is included in the
appellate record. As the cross&e#aminer, you are entitled to have a reasonable amount of time to e#amine the witness statement
that is disclosed. !f you as, the court must recess the proceedings to give you reasonable time to e#amine the witness6 statement.
A 9witness statement 9 is a written statement made by the witness that is signed or otherwise adopted or approved by the
witness or a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the
maing of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or transcription
thereof or a statement, however taen or recorded, or a transcription thereof made by the witness to a grand jury. $hat happens if
the other party refuses to deliver the statement to the moving party4 The trial court must order the testimony stricen from the
record, except, if it is the prosecutor who refuses to comply with the order to deliver the witness statement to the defense, the trial
judge must declare a mistrial if required by the interests of justice.
Eere6s an e#ample of the dialog a cross&e#aminer might employ to obtain a copy of the witness6 7here a case agent8
statement for inspection before proceeding with cross&e#amination' F' -ou were the primary case agent in the investigation of this
case. F' And you certainly made periodic written reports that chronicled and described important things that you did in your
investigation, right4 F' 5ay ! have a copy of all your written case reports made in connection with your investigation of this case4

MO3%L A!!*OA#H -O #*OSS
& )ou 2ave t2e power to be t2e witness during your cross$e&amination' This is one of several times during the trial
when you get to testify. The others are jury selection 7in jurisdictions lie Te#as where counsel puts questions during voir dire8,
opening statement, and final argument. "ince you will be in the jurors6 spotlight, you want to appear trustworthy, credible, competent,
sillful, honorable, and nowledgeable about the case. !n short, you want to loo goodG
& )ou typically cross to tell t2e rest of t2e story in supportive cross and to cast doubt on t2e witness/ credibility in a
discrediting cross' !n both instances, you typically leverage the witness into agreeing with what you say. That means you are
generally looing for 9yes9 answers 7concessions8 to you leading questions.
& )ou 2ave to spend some time mastering t2e unusual tec2ni7ue of putting words in a witness/ mout2 by leading
7uestions' Try it in your daily life with a friend who nows what you are doing. -ou would not use this method of discourse in polite
company, unless you were questioning a child or a drunen significant other who arrived home at @ a.m. Of course, effective leading
requires mastery of the facts about which you will question the witness.
& )ou are generally not trying to clear anyt2ing up or develop new information wit2 your cross8 but in some instances you
may be' 0emember that 0ule =++7b8 T0< allows 9wide open cross&e#amination.9 This means you may cross&e#amine a witness
on any matter relevant to any issue in the case, including credibility. /.ote' 1ross in some jurisdictions, e.g., federal court, is limited
to the the scope of direct and to matters affecting credibility. "ee 0ule =++ %0<.3
& (it2 muc2 of your cross you want to tell certain aspects of your side of t2e story and 2ave t2e witness agree wit2 you
or concede t2e accuracy of your points9 2owever8 you do t2is wit2out getting into an argument wit2 t2e witness you are
crossing' 0ecall the old adage & don6t argue with a fool, the jury may not be able to tell the difference.
& )ou cross$e&amine for t2e purpose of developing useful material for your jury argument' This means you cross with a
predesigned purpose, covering what you need to cover, sometimes more than one point, to provide content or the matri# for your
summation. .aturally, you have to now where you are going so you6ll now when you get there. This means you have to prepare
your cross in advanceG
& Since a single cross may occasionally be bot2 constructive 5supportive6 as well as destructive8 you typically seek
2elpful concessions from t2e witness before you initiate an attack' The opposition6s witness will normally be more forthcoming
in conceding facts, particularly those that are beyond dispute, before you cross swords. 75ore on this below in 9Breparing -our
1ross.98
!*%!A*I". )O1* #*OSS
: Ten ,asic 0ules of 1ross &<#amination & Eere is a one&paragraph thumbnail summary of what every e#perienced cross&e#aminer
would agree are the very basic rules of form'
+. Blan your attac, determining what your purpose is and centering it on the jury arguments 7+8 that you e#pect to mae
based on the cross&e#amination. To put cross of witnesses in the metaphoric language of a fisherman' "ou hoo# 'em and land 'em
in cross and clean 'em and fry 'em in !ury argument$
;. Try to predict which witnesses will be called by the opposition and and anticipate what questions your opponent will as
each witness on direct e#amination. /!t6s easier to prepare than to predict, but the latter is antecedent to the former.3
?. Decide if your cross will be supportive, concession&based and(or destructive, discrediting in nature, and, if both, decide
which will come first. /1onstructive, concession&based cross should typically go before destructive, discrediting cross: constructive
cross typically first sees favorable concessions from the witness of facts that are beyond dispute: constructive cross would utiliIe
the opposition6s witness to authenticate and establish the predicate for introduction of the cross&e#aminer6s evidence.
@. 1onsider what limitations the rules of evidence and procedure place on the scope and nature of your questions.
H. Determine whether some potential legitimate cross would blunt the force of other potential legitimate cross. 0emember,
on cross you get to pic your fights. -ou do not have to respond to everything that was said on direct. -our purpose with destructive
cross is to neutraliIe otherwise harmful testimony and to cast doubt upon the credibility of the testifier.
=. 1onsider whether some available cross would be viewed as nit&picing, quibbling, petty, and or stale. /Eere the ey to
me would be whether the available cross would support my jury argument.3
J. 1raft your questions. Learn the legal foundation for each relevant mode of impeachment. 1raft the predicate questions.
1raft the other questions with emphasis on those answers that will support the jury argument you e#pect to mae. Key questions
should be phrased to prevent the witness from wiggling off the hoo. <ach ey questions in a lawyer controlled cross&e#amination
should be short, leading, as about only one new fact per inquiry, and be posed with a rising inflection at the end of the question to
ensure that it cannot be interpreted as a declarative statement.
C. 1ross&e#amination questions should be planned and organiIed in units 7segments(blocs8 by subject matter rather than
in the chronological order often used with direct e#amination.
A. Fuestioning within each specific subject unit should be from general to specific, i.e., funneling.
+>. The cross&e#aminer should mae a dedicated effort to be aware of the relative safety or ris of posing each question.
Avoid amiaIe cross.
: Thin about the sequencing of your subject units. Don6t start your cross coincident to the same subject that the direct ended upon.
The witness6 brain will be geared and ready on that subject. Bic a different subject, always a pretty strong one, e.g., a concession,
so the witness6 thining will be starting in paring gear. Thin about the sequencing of questions within each subject unit. As one
means of inquiring about details on cross, you need to master the technique of pinning the witness down by funneling your
questions. The so&called T&funnel form of question, often used in pretrial interviewing of witnesses and clients, sees first to clarify
the area of inquiry for the jury with open&ended questions before focusing on narrow specifics with leading questions.
: To gain the jury6s attention, you should try to mae the cross&e#amination of each witness interesting and persuasive. Thin about
the persuasive influence of your cross. !f you don6t dispute it, don6t cross on it. %or e#ample, you might be able to cross on a
particular subject, but, if you are going to admit the fact because it is beyond dispute, you will lose persuasive power with the jury by
crossing on it.
: 1oncerning the attitude you will display, now before you begin whether you are going to be friendly, neutral, or hostile to the
witness. 1ertainly, not every cross&e#amination will be confrontational. -ou may want to display more than one attitude. !f you plan
to elicit supportive facts and gain concessions from the witness, you should do this first and do it with a friendly or neutral attitude
that will promote witness cooperation. !f you begin your cross with a nasty attitude, your witness will display the attitude of a
hedgehog at bay, and you will appear disingenuous if you then try to be friendly or neutral.
: Decide in advance what point7s8 you are going to try to mae with your cross of the witness. $hat do you want to be able to argue
to the jury about the witness4 These re probably the points you want to mae.
: -ou may need to gather and study certain tangible items for use in cross&e#amination. %or e#ample, if you are cross&e#amining a
confidential informant or a cooperating co&conspirator, you will typically have a game plan that will require you to read documents in
preparation for cross. !n the former case of the so&called confidential government informant, you may want to show that the control
agent, e.g., %,!, D<A, did not eep the informant on a tight leash as required by written department guidelines or regulations. -ou
will want to obtain copies of the agency6s policy on 9informants.9 "ee Bretrial Breparation for information regarding obtaining federal
law enforcement agency operational manuals. !n the latter case of the cooperating co&conspirator witness, you may want to show
the concessions that the prosecutor has agreed to confer on the witness if the witness performs as desired. -ou will want to obtain a
copy of any written or recorded agreement7s8 between the prosecution, the cooperating witness, and the witness6 lawyer.
: Brepare and bloc out your topics and anticipated questions as part of your pretrial preparation. 1onstruct each point you wish to
mae into a unit or bloc. Live the point a descriptive name, i.e., the point you will argue to the jury. Eighlight the ey words in each
question of the unit, bloc, or segment. -ou will then barrage the witness with each of the separate units of cross. !n argument, you
will stac all of these units, blocs or segments of your cross onto the witness with the goal of crushing his credibility.
: ,ring out omissions. Use cross to underscore things that were not done. %or e#ample, defenders may want to highlight the
deficiencies of the crime scene investigation. !t6s easy to find boos that describe proper crime scene investigations and scientific
tests that could or should have been done and weren6t. .otice that when you are asing about things that were not done, you6ll
often be shooting for a string of 9no9 answers: whereas, in most other instances you6ll be asing questions that call for 9yes9
answers.
: There is a natural temptation to use indirection in your questions when you don6t want the witness to now the purpose of your
question. 2ust don6t be so fo#y that no one, e#cept yourself, ever gets the point.
: Use headlines and transitional phrases as a communicative tool for the jury. Eeadlines introduce a new topic, e.g., 9! want to as
you some questions about 7state the topic8.9 Transitions are the lins between different topics. %or e#ample, when you move from
one related topic to another,you might guide the jury by saying to the witness, 9.ow that we have established where you were on
5onday afternoon, ! want to as you what you saw. Do you understand49 !f the topics are unrelated, you can indicate it by saying,
9"witching gears, ! want to move from 7indicate the topic8 to 7indicate the topic8. Are you with me49
: Defenders should avoid using the phrase 9my client9 or 9the accused9 when cross&e#amining. .ever, never, never refer to your
client as 9my defendant.9 $hen you refer to your client on cross, it usually sounds better to use his proper name 7surname8, e.g.,
5r. ,utternutt, not by his given name e.g., 0amrod.
: Leading is the way you direct the jury6s focus to you rather than the witness. As to form, the most leading form of a leading
question is a declarative statement, e..g., 9The car was red.9 ased with an interrogative inflection of voice. $hen you start a
question with a personal pronoun, e.g., you, she, he, or a noun, e.g., 9the car9, you usually are on your way to a leading question.
As a general rule, you will see agreement, a concession, from the witness. 5uch of your cross&e#amination can be prepared by
forming a set of leading questions that will elicit a string of 9yes9 answers from the opposition witness. Blanning your core leading
questions in advance of trial will help train you to form e#temporaneous leading questions when the need arises. There is an old
proverb, 9Live him enough rope and he will hang himself.9 Living the witness rope doesn6t wor in most cross&e#aminations. !f it did,
the cross&e#aminer would let the witness do all of the taling and then try to trip him up. !nstead, structure your cross so that you
braid the rope with your leading questions. Eang the opposing witness with it in argument.
: As short questions. !t6s not easy for a lawyer to as a short question. $e are paid to jabber. -ou6ll have to train yourself by
practice. As yourself, 9Eow few words can ! use for my leading question49
: As unambiguous questions that are not subject to a vagueness objection.
: %ocus on objective facts or impeaching facts. Don6t as the witness to give opinions or draw conclusions. One way of avoiding
questions that invite the witness to quibble with you is to leave out descriptive adverbs and adjectives of you own design. Lo with
nouns and verbs.
: 0estrict the scope of your question to only one ne fact per inquiry. The purpose of this rule is to avoid giving the witness wiggle
room. !t will also prevent the jury from being confused. This means that you will brea your questions into small parts.
: As a general rule, you don6t want to invite the witness to e#plain. This means that you generally don6t as the witness 9$hy49 or
9Eow49 or 91an you e#plain that49 or 9Tell me more.9or 9$ould you describe ...49 These open&ended questions give the witness free
rein. !f you want to let the opposition6s witness wiggle off the hoo, just as him to 9e#plain.9 The witness6 e#planation will usually
hurt your case. Thus, you as leading questions. /Caveat' "uppose you are certain that the witness is cornered with no avenue of
escape and you want to see him squirm. -ou might consider a question that forces him to e#plain a position that is une#plainable,
e.g., 9Eelp us understand this. 7State the inconsistent or illogical position that the itness has une%uivocally committed himself to
and for hich he can give no explanation that ill seem reasonable to the !ury.83
: !f you have a well&planned cross with lots of leading questions, you can get so caught up in testifying for the witness that the
witness6 9yes9 or 9no9 answer becomes almost inconsequential to you. After all, don6t the e#perts say that in cross the spotlight
should be on the cross&e#aminer rather than the witness. 1ontrolling the witness6 answers by leading on ey questions is fine. 2ust
be sure that the jurors hear the itness6 anser affirming your leading version of the story. That way, you have truly put words in the
opposition witness6 mouth.
: .ormally, you don6t want to repeat what the witness said on direct e#amination. 0epetition reinforces and persuades. Eowever, on
occasion, e.g., during the commitment stage of impeachment with a prior inconsistent statement, you will need to repeat what the
witness said on direct e#amination. $hen you do so, don6t say, 9-outestified on direct ...9 The word 9testify9 dignifies the testimony.
!nstead, say, 9$hen the prosecutor was questioning you, you said (or told this !ury) ...9
: 2u#tapose or stac units 7or blocs or segments8 of cross&e#amination that support one another. ,y 9ju#tapose or stacing9 !
mean, present the units 7segments or blocs8 of evidence in an interlocing sequence that will synergistically bolster your point or
prove your fact. %or e#ample, you might want to group several of the witness6 prior inconsistent statements together to bolster your
argument that the witness is a 9person who changes his version of what happened from day to day,9 9stitchmouth,9 9good e#ample
of what the American !ndians called a man who speas with a fored tongue,9 or 9the type of unreliable witness who tals out of both
sides of his mouth.9 Eere6s an e#ample of stacing. "uppose your inferred fact, the conclusion that you want to argue, is that a cop
planted an item of evidence: you might consider stacing each of these units of cross&e#amination, one serially after the other ' 7+8
the cop had a history of planting evidence, 7;8 the cop was the first person on the scene where the item was found, 7?8 the cop had
a history of lying under oath, 7@8 the cop had a prejudice against the accused.
: Try to end on a climactic and non&objectionable strong point. -our last question will be the most important one. !t must
be bulletproof. "ome lawyers call this their 9safe harbor9 question. 1all it what you lie, it must be both invulnerable to objection and
so hermetically sealed that the witness cannot squiggle out of it.
-I!S ; -%#H"I1%S <O* .%--I". A"3 0%%!I". #O"-*OL O< -H% O!!OSI". (I-"%SS
: Don6t do anything will give the jury grounds to thin you are wasting their time.This means that you should not play little lawyer
games in front of the jury. %or e#ample, when you impeach with a prior inconsistent statement, mae sure that it is not on a subject
that is so collateral that the jurors will view it as quibbling. "imilarly you don6t want to appear deceitful. This is a ris that you run
when you play lawyer games or act egocentrically or arrogantly in front of the jurors. !f you loo phoney or too cutesy, you are
headed downhill out of control on a slippery slope.
: The "ee&"aw Brinciple of 1ross&<#amination & & go up' the itness goes don( Aristotle tells us that in persuasive discourse the
most important thing we have to sell is ourselves. 7+8 1ross&e#amination, in the sense that it provides you with an opportunity to
testify through the witness, presents you with the opportunity to sell yourself and your case. One of the nation6s best nown federal
public defenders 7a gentleman nown as Terence 5ac1arthy, now retired after several decades as a federal BD in 1hicago8 used to
travel the country maing a speech about how to conduct a discrediting cross&e#amination. The title of 5ac1arthy6s speech was
9)oo# *ood Cross-Examination.9 Ee didn6t call it the see-sa principle, but his thesis was' $hen the witness loos bad, you loo
goodG Ee went so far as saying, 9!f you have a choice between losing control of a witness or looing good, 6looing good6 is always
best, even if it is at the e#pense of losing some control.9 /.ote' At a recent gathering of lawyers in 1alifornia, ! once again heard
5ac1arthy deliver his famed speech: now a greying oldster, more loquacious and more egocentric 7.ote' !t6s real hard for criminal
defense lawyers to be modest. !t gets worse with age and notoriety. Bercy %oreman, the greatest trial advocate of his century, used
to say he didn6t have anything to be modest about.8 than ! remembered, but with the same pluc, 5ac1arthy can still eep an
audience of young lawyers spellbound for an hour&and&a&half.3 !n ;>>C, while convalescing from an injury, he wrote a boo detailing
his approach to cross. !t carries forward his basic advice that you want to appear successful with the witness in the eyes of the jury.
The ;>> pp. result is titled +acCarthy on Cross-Examination, !",.&+?'AJC+HA>?+CC=J, a pricey MA> at AmaIon or ,arnes N .oble.
/.ote' As a further aside, 5ac1arthy also has a set of tapes available through "tetson law school in which he wa#es eloquently on
numerous topics, including voir dire questioning of jurors & though he admittedly conducted only two such voir dires in his long
career as an advocate.3 !n the same vein as 5ac1arthy, do not unduly embarrass a witness if it maes you loo bad. "o, when can
you bully a witness4 0emember the film *ladiator4 The emperor 1ommodus 7played by 2oaquin Bhoeni# in the movie8 was always
guided in his decision to go 9thumbs up9 or 9thumbs down9 on the fallen contestant based entirely on the audience6s reaction. !n
effect, the emperor only administered the coup de grace if the 9crowd was on his side.9 %ollow the *ladiator ,ule. ,ully 7maybe
even gut and field dress8 the opposition6s witness only when his credibility has been steadily weaened by your questions and you
are reasonably confident that the jury would give you 9thumbs down9 permission to dispatch the witness. This requirement of getting
the jury on your side in a destructive cross is even more applicable to lawyers because we aren6t really the emperor. The jurors areG

: Ditch the pencil, pen, or laser pointer as a wand. Eaving an object in hand is a distracting impediment to communication. Eave
nothing in your hand when you are cross&e#amining, unless you need it. During cross&e#amination, if you must write, consider
writing the witness6 ey answers, e.g., concessions or prior inconsistent statements, along with the date and time of the answer, Do
your writing with a magic marer on a flip chart located near the point where you are positioned for questioning /1aution' Don6t do
this with chal on a chalboard or dry erase marer on a whiteboard. The writing probably won6t survive for argument. -our
opponent will figure out a way to erase it, e.g., to mae room for her writing.3 !f you use a flip chart and a permanent marer to
record those ey answers, you6ll have something graphic that you can use during your !ury argument when you remind the jurors of
the witness6 ey answers. 2ust mae sure that what you write is exactly what the witness said. Don6t paraphrase the witness6
answer: if you do, the other side will have a good objection. !f you write the date and time of the answer bedside or directly
underneath the quoted answer, this will help you in argument to remind the jurors of the witness6 earlier answer, e.g., 9-ou
remember bac 7state the recorded date and-or time8 when ! ased 7name the itness8 7indicate the %uestion you as#ed8 and 7name
the itness8 said 7loo at the recorded flip chart answer and read the witness6 answer word&for&word8.9
: Don6t automatically start your cross with a stoc polite introduction. 5any lawyers start every cross&e#amination greeting the
witness with 9Lood morning, 5r. $itness. 5y name is so&and&so, and !6d lie to as you a few questions. ! don6t believe we6ve had
the pleasure of meeting before, have we49 This may be oay in some instances, e.g., when you plan to conduct a concession&based
cross, but if you are going to argue at the end of the case that the witness is a slac&jawed, bed&wetting, nose&picing, bac&sliding,
four&flushing chamber pot, it appears somewhat disingenuous to begin with a cloying 7e#cessively sweet8 salutation. $ith this latter
type witness you almost want to begin by asing, 9"ir, are your brains as swinish as your manners49
: $itness control is the linchpin of your cross&e#amination, particularly when you are crossing to discredit. %or e#ample, see the
advice below on how to deal with the witness who resists answering your question.
: Keep the cross bris. As a general rule you should cut the time between questions, so the witness won6t have time to put on his
thining cap. -ou don6t want to give the hostile witness time to thin about his last answer and where you are going with your ne#t
question. Of course, when you get a desired answer, the Iinger you want to mention in argument, don6t hesitate to use a five count
moment of silence 7the pregnant pause as an emotional comma8 as you loo over at the jurors. "ilence and the jury loo are the
body language equivalent of 9%ols, did you hear what this witness just said4 !t6s importantG9
: "tretch out the facts that discredit the opposing witness. This is particularly true when you are impeaching a witness with a prior
inconsistent statement. %or e#ample, suppose you want to you confront a witness with prior inconsistencies A, ,, and 1. 0ather
than asing a single question, e.g., 9Did you previously go down to the police station on 2uly @, last year, and give Officer 2ones a
written statement in which you said A, ,, and 149 brea it down into at least three questions each covering one inconsistent
statement. There are many impeaching situations where you can more bang from the impeachment by stretching it out into its
constituent elements. %or e#ample, a defender might stretch out the fact that the complainant in a rape case failed to promptly report
the alleged attac.
: Eow do you deal with an opponent and(or judge who doesn6t view the highly leading declarative question as a true question4 !f
you use a declarative statement with a question mar inflection on it, you should have no problem. ,ut, suppose your opponent
objects 9That6s not a question, -our Eonor. $e object to counsel testifying.9 and the judge sustains the objection. Eow do you deal
with this situation4 "imple. 2ust reas the same declarative question, and add the word 9right9 to the end of it. ,y adding the word
9right,9 you clearly mae it a question. -ou get the benefit of asing your question twice, and you may want to verbally underline the
word 9right9 and glance over at the objecting lawyer to show the pettiness and frivolity of the objection. !f you really want to rub your
opponents face in it, you might even as to have the original question read bac before repeating it with 9right9 tag: that way, the jury
hears it three times.
: Live the jury a heads&up that you are going to be crossing the witness about a different topic. .eadline with topic sentences when
you switch subjects, e.g., 9Let6s turn from what you wrote in your witness statement to the subject of your prior criminal record.9
: Avoid adding tags and introductions to your questions. They weaen your point. 7&f you chose to tag your leading %uestions' use
phrases such as /fair to say'/ /right'/ /correct'/ and /e can agree that/ as tags of choice$8
: !f you want the opposing witness to answer 9yes9 to your question, try nodding your head at him immediately after posing the
question.
: Don6t as the witness for permission. $hen you say, 9Let me as you this,9 you are asing the witness for permission. <liminate
that phrase from your vocabulary.
: As a general rule, don6t refer to the adverse witness by given name or nicname.
: Learn to 9loop9 favorable concessions from the witness into your subsequent questions. Eow do you loop4 -ou simply incorporate
the favorable factual concession into into a subsequent question. Eow many times should you loop a favorable concession. !f it6s
important, try looping it three times.
: !f some answers the witness gave on direct helped you, consider have the witness repeat the favorable answers on cross.
: Don6t as the court for help with the evasive witness, e.g., the one who won6t give you 9yes9or 9no9 answers or the one who
answers in a non&responsive manner. !f you as the judge for help, she6s liely to deny the request or even say, 9The witness
seems to the 1ourt to be doing his best to give you straight answers, counsel.9 Depend on yourself when you have an unresponsive
witness. Learn how to get your answer and(or mae the witness loo evasive to the jury. One way of dealing with the witness who
gives you a non&responsive answer is to simply repeat the question with a rising inflection, perhaps using your hands in cadence
with your words. -ou might also politely say to the witness, 9!6m sorry. That last question may have confused you. Let6s try again.9 or
95aybe my last question was unclear to you. Let6s start over.9 -ou may want to be more confrontational, e.g., 9Do you now what my
last question was49 or 9$hat did ! just as you49 or 9$ill you try to answer my question49 or 9Let6s get this straight between us
7Let6s be clear on this8 right now. 5y job here is to as you questions and yours is to answer my questions. "o here6s my question
again: 6-ou shot 2ohn46 And your answer to the jury is49 !n situations where it is obvious to everyone that you are having to pry an
an answer out of the witness, you might want to say, 9Do you want to answer my Fuestion4 -ou don6t have to if you don6t want to.9
"ee the 112A written monograph on 1ross&<#amination for more techniques. Eere are some e#amples of techniques you can
employ to deal with the witness w2o tries to evade answering your 7uestion'
,epeating the 0uestion (1olite 2orm)'
F' -ou shot 2ohn4
A' ,lah & blah & blah.
F' -ou shot 2ohn, right4 7Option' 9"o your answer to my question 9-ou shot 2ohn,9 is 6-es649 Bolite option where you tae the blame
for the non&responsive witness' ,egin with 9Berhaps ! didn6t mae myself clear, the question is 6 -ou shot 2ohn, didn6t you46 And
your answer to that question is what498
,epeating the 0uestion (3ssertive 2orm)
F' -ou shot 2ohn4
A. ,lah & blah & blah.
F' Did you hear the question ! just ased you4 7!f 9.o9' !f ! repeat the question will you be so ind as to listen carefully to it48
,eading the 0uestion - ,epeated 4nresponsive 3nsers'
F' -ou shot 2ohn4
A' ,lah & blah & blah.
F' Berhaps it would be helpful to you if the court reporter would read
bac my last question. 75o court reporter' $ould you read the witness my last question, please48 .ow, will you give us an answer to
that question4
1roviding the 3nser 6hen the 6itness Bal#s '
F' -ou shot 2ohn4
A' ,lah & blah & blah.
F' Did you hear my question4
A' ,lah & blah & blah.
F' Then your answer is 9-es94
%ronting the $itness6 Obvious ,ias and %ocusing on the Fuestion
F' -ou shot 2ohn4
A' ,lah & blah & blah.
F' 5s.(5r. $itness, ! understand that you6ve come here today with some things that you want to tell this jury. And you6re going to
have that opportunity. ,ut, for right now, my question of you is 9-ou shot 2ohn49 Blease answer that question.
Challenging the 6itness'
F' -ou shot 2ohn4
A' ,lah & blah & blah.
F' !s there something about my question that prevents you from answering 9yes9 or 9no94
A' .ot really.
F' Then are you ready to answer the question4
.ighlighting the 6itness' ,efusal to 3nser and 3ccepting &t'
F' -ou shot 2ohn4
A' ,lah & blah & blah.
F' -ou shot 2ohn4
A' ,lah & blah & blah.
F' -ou don6t want to answer my question, do you4
A' !6m not saying that.
F' $ell then, just to be clear about it, here6s the question one last time' 9-ou shot 2ohn, right49 !f you don6t want to answer that
question, ! won6t mae you. /The Adali "tevenson alternative to the previous sentence' 9!6m prepared to wait for an answer until hell
freeIes over.93
)etting the 7on-,esponsive 6itness ,un Before Setting the .oo# in .is *ut8
F' -ou shot 2ohn4
A' ,lah & blah & blah.
F' -ou shot 2ohn4
A' ,lah & blah.
F' Anything else you want to say4
A' ,lah.
F' Anything else4
A' .o.
F' .ow, !6ll as again, 9-ou shot 2ohn, correct49
5he East 5exas 3pproach
F' -ou shot 2ohn4
A' ,lah&blah&blah.
F' Don6t worry about the mule going blind, 2esse, just answer the question & 9-ou shot 2ohn, right49
: Don6t give the opposing witness permission to draw conclusions. $hen you begin a question with the words 9"o,9 9Then,9 or
9Therefore,9 you may be getting ready to as the proverbial one %uestion too many. $ords of this sort are signals to the witness that
s(he is free to draw his(her own personal conclusion from what s(he has previously said. The great ris of the conclusory question is
that the witness may not agree with your conclusion and will use the opportunity to narrate and editorialiIe. $ord choice is very
important in cross. !t is risy to as a hostile witness to agree with descriptive adjectives, e.g., fast, slow, tall, short, beautiful, ugly,
etc. $hy4 ,ecause these ine#act adjectives are sufficiently fluffy, foamy, and frothy to allow the witness to quibble with you. .ouns
and verbs are a lot more concrete than modifiers. The point is simply this & Don6t give the hostile witness the entree6 to venture an
opinion. "ave the conclusion for your jury argument, where you draw it as a logical inference from the witness6 factual testimony.
: Use variations in vocal tempo, volume, tone, and pitch when cross&e#amining. Use a vocal style that is appropriate for the
particular witness. Don6t cross&e#amine every witness with the same voice.
: Don6t get angry, loud, tough, judgmental, or confrontational with the witness, except on purpose. Don6t allow yourself to move from
questioning into quarreling or arguing with the witness. "tay cool. Despite the ca&ca(poo&poo sometimes depicted in courtroom TO
and movie dramas, you don6t have to be aggressive with every witness you cross&e#amine. -ou don6t have to destroy every
opposing witness. .ot every opposing witness is a liar. Don6t try to insinuate it, unless you have an obvious factual or impeaching
basis. Unless you have a purpose, don6t attac the witness. . 0emember what ,uddha said about anger, 9Eolding onto anger is lie
grasping a hot coal with the intent of throwing it at someone else: you are the one getting burned.9
: Don6t be too slic, haughty, or arrogant in sewering and grilling a witness on cross. %ollow the previously mentioned Lladiator
,ule & cross&e#amine the opposing witness into a position where the jurors will vote 9thumbs down9 when sewering time arrives in
the jury deliberation room.
: As a relative newcomer, how do you use the notes in your trial noteboo in questioning4 Do not read your %uestions to the witness
from your trial notebooG -ou can certainly refer to your list of questions, but, first, loo at the question, second, loo at the witness,
and, third, as the question. "o, loo at your noteboo, refresh your recollection of the question, loo up, and as the question. Don6t
be looing down at your trial noteboo to determine the ne#t question while the witness is answering the present question. $hy4
,ecause you can6t be listening to the answer if you are busy trying to find you ne#t question, and because any jurors cuing off of you
will see little importance in paying attention to the witness6 answers.
: <ventually, you will learn to question without constant reference to your trial noteboo. Developing the nac of questioning
without referring to your notes involves preparation and practice. -ou can6t e#pect it to happen overnight, but, with dedicated effort
and e#perience, it will happen. !f you immerse yourself in your case, your notes, including your written questions, will become only a
trial aid, a guidepost rather than a hitching post.
: The length of cross depends on the circumstances. 5any lawyers favor the brief , get&in get&out cross. -et the great lawyers are
often the ones who engage in marathon cross&e#aminations. $hatever the length of your questioning, save the best for last. -our
last question should be one that the witness cannot wiggle out of. <nd with an 9armor&piercing,9 question & a bang, not a whimper.
: 1ross is not required of every witness. Assess the probable riss and rewards. Did your opponent erroneously leave out one of
her ey points on direct4 1ross always maes redirect possible. Eas the witness hurt your case4 $hat can be gained and(or lost by
cross4 "hould you cross4 "ometimes, not often, the answer is 9.o.9
#*OSS O< A !OLI#% O<<I#%* (HO HAS OMI--%3 A 4I-AL <A#- <*OM -H% !OLI#% *%!O*-
Bolice officers are taught that a big part of their investigative job is to mae sure that their report is 9thorough, accurate and
professional.9 They now that the report is a permanent record of the incident and has to include all pertinent facts. They now the
report must paint a clear word picture of what happened. They now that the quality of the report can influence their credibility on the
witness stand as well as the effectiveness of the prosecuting attorney6s courtroom effort. They now that the police report will be
used by the prosecutor as the primary source for issuing complaints, informations and indictments, and for crafting and responding
to pretrial motions, and for planning and preparing a case for trial, and for assessing a case for negotiated settlement without resort
to trial. They are taught that from the prosecutor6s standpoint 9&f it isn't in the police report' it didn't happen$9
"uppose that you notice that the police report omits one or more important facts. Eow can you handle this in your questioning4 Eere
are some questions taen from the =th edition of my boo Criminal 5rial 3dvocacy - Simulation Exercises in Criminal )itigation '
F' Officer, do you consider yourself as a professional4
F' -our job involves a lot more than just strapping on a badge and a gun and riding around in a police car 7cruiser, prowler, patrol
car84
F' -our job has certain educational requirements that have to be met4
F' And you also have on&the&job training4
F' !n these days you use computers4
F' "o your job is more than just physically arresting someone4
F' 5odern law enforcement is more about gathering facts than it is about force4
F' -ou have testified here in court that 7state the factual in-court testimony of the officer that are not contained in police report84
F' Does that recollection stand out in your memory when you thin bac to the events of 7state the date of the relevant events84
F' $hen you told us earlier today about that recollection, were you relying solely on your own memory or was it based in any way
on what someone else told you4
F' One of your jobs as a police officer is to write a police 7or offense8 report of the crime4 /.ote' !n some jurisdictions the officer6s
report is referred to as a 9police report.9 !n others, it is nown as an 9offense report.9 0efer to the report hereafter in your questions
as it is labeled in your jurisdiction. ! will use the label 9police9 report here, even though my Te#as brethren refer to it as an 9offense
report.93
F' ,asically that involves describing the facts of your investigation of the event in the form of a written report4
F' This report is then ept as a permanent record4
F' And this police report contains the relevant factual information about what you saw and did in investigating the case4
F' The police report may also contain what witnesses told you4
F' 1ertain information must be put in the police report so others can use it4
F' As part of your police training, you are actually taught how to write police reports4
F' -ou now from your own e#perience that the prosecutor relies on your police report in figuring out what the prosecution6s
evidence will be4
F' -ou now that the prosecutor uses the police report in deciding whether to file an information 7or to see an indictment by the
grand jury4
F' -ou now that the prosecutor uses the police report to develop pretrial motions 7or respond to pretrial motions84
F' Are you also aware that the prosecutor uses the police report for building a case for trial4
F' !f there is to be a negotiated settlement 7plea bargain8, you now that the prosecutor relies on the police report in deciding
whether to plea bargain4
F' The short and long of it is that you now the prosecutor needs to now the 9who, what, when, where, why, and how9 of the
alleged offense4
F' 1an we agree that a big part of your job is arresting people 7or investigating cases84
F' %air to say that you arrest 7or investigate8 quite a few people 7or cases8 each year4
F' !f you have testify in a case where you made an arrest 7or conducted an investigation8, you use the police report to refresh your
memory about the information you developed4
F' !s it important that the police report be accurate4
F' !s it important that the police report be thorough4
F' !s it important that the report be complete4
F' !s it important that the report contain the facts that give a clear picture of what happened4
F' !s it important that it contain facts and not just your opinions4
F' As a professional police officer to you demand accuracy and thoroughness of yourself4
F' Are you familiar with the term 9field notes94
F' %ield notes are notes you mae out in field, on the spot, about specific events to help you remember later what happened4
F' $hen you are out in the field maing an arrest 7or investigating a case8, is it your habit to mae some notes to yourself about
events and circumstances when they are fresh on your mind4
F' %ield notes can help you reduce the ris of inaccuracy in reporting names and dates and events4
F' %ield notes can be used to refresh your memory later on, can6t they4
F' -ou could use them interviewing people4
F' -ou could also use field notes in writing the police report4
F' Did you mae any field notes in this case4 /Bractice .ote' 5ae a trial discovery request for the field notes using the applicable
rules of evidence in your jurisdiction that give you the right to have a copy of the opposing witness6 statement for use in cross&
e#amination. !n Te#as, this is 0ule =+H T0<. !n federal court, it is %ed. 0. 1rim. B. ;=.;.3
F' Did you mae a police report in this case4
F' Eow many reports did you mae in this case4 75ae a trial discovery request for the police report. 5ar the police report and
authenticate it as to time, place, and date.8
F' And is it your habit to mae a written police report in each case where you are the officer in charge of the arrest 7or investigation
of the case84
F' And can we agree that you put all the important facts you developed in this police report4
F' Do you consider your police report thorough, complete and professional4
F' ,ecause this was a case involving 7state the relevant issue' e$g$' search and sei9ure of a pistol8, you new that the
circumstances surrounding the 7state the relevant issue' e$g$' sei9ure of the pistol) ere important:
F' -ou realiIed the issue of whether 7state the relevant issue8 could be crucial to your case4
F' %or the record, ! am handing you a document mared for identification as Defense .o. PP. !s the police report that your prepared
in this case4
F' And it reflects your version of the events and circumstances of 7state the date8.
F' Tae a loo at your police report, and tell us where in the report there is any mention whatsoever of 7state the crucial fact that the
officer itness testified to in-court during direct examination that are not contained in the police report8.
F' Do you need to loo at it again just to be sure4
*%#*OSS
0ecross&e#amination is generally limited to the subject matter of the redirect. This is true even in jurisdictions lie Te#as that adhere
to the wide&open cross&e#amination rule. Don6t do a recross simply as a nee&jer reaction to the fact that the opposing counsel did
a redirect. Avoid recross, unless you have a purpose. Don6t do it simply to have the last word. ,e so ready with your questions on
cross that you don6t have to recross on an afterthought question that should have originally been covered.
*%SO1*#%S
: !f you are cross&e#amining a government informant, 7The government refers to such a person as a 9confidential informant9 or
91!.98 you should consult any publications of the government or state relating to the way authorities deal with their informants. %or
e#ample, if you anticipate cross&e#amining an informant in a federal case, refer to the free, downloadable Department of ;ustice
*uidelines ,egarding the 4se of Confidential &nformants. !f you plan to cross&e#amine a government informant, first tae a loo at
%rontline6s special on 9snitches.9 !t will provide some useful insight into the world of informants. Eere6s the best bibliography of
resources, some hyperlined, on government informants from the popular media, journals, boos, and reports.
: -ou6ll find quite a bit of information about cross&e#amination on the !nternet 7+8. %or e#ample, here are several samples of cross of
an arresting officers, some from DU! 7D$!8 cases 7+8, 7;8, 7?8, 7@8, cross of a cooperating witness or co&conspirator 7+& this paper by
a public defender is worth your time: it contains good analysis of cross&e#amining cooperating witnesses(snitches, plus several
e#amples of cross of a snitch 7+8, 7;8, 7?8 and some sample motions re snitches together with a sample government cooperation
agreement 7+8 7; & =H pages including a transcript of the defender6s F and A of the cooperating witness8, and cross of child
witnesses 7+8, 7;8 , 7? & se#ual assault of a child8: here are suggestions for cross of e#perts 7+8, 7;8, 7?8, 7@8 in general and of a
forensic psychologist 7+8 and a forensic e#pert on computers 7+8. Eere6s a good discussion of the art of cross&e#amination by a civil
lawyer and a prosecutor6s J+&slide BowerBoint e#planation of approach&point cross. The paper on cross&e#amination at this
conference is noteworthy only for the reason that it contains the preliminary hearing cross&# notes of the female lawyer who
defended basetballer Kobe ,ryant on his se#ual assault charges. $ho can forget venerable %. Lee ,ailey6s cross&e#amination of
L.A. Detective 5ar %uhrman, a witness whose insolent answers concerning the so&called 9.&word9 played right into the winning
defense theory of an insidious police frame&up of blac 9celebrity9 football star O. 2. "impson. Lincoln6s famous cross&e#aminationof
a prosecution witness in the murder trial of Duff Armstrong. !t6s not unusual for personal injury lawyers to include articles on cross on
their web sites, e.g., 7+8, 7;8, 7?8, 7@8, 7H8, 7=8, 7J8, 7C8, 7A & traditional do6s N don6ts8, 7+> this one for the e#pert computer e#aminer
witness, not the e#amining lawyer8 or for criminal defense lawyers to tell you how the cow ate the cabbage 7+8, 7;&military8.
Occasionally, a law professor 7+ & H@ pages8 7; & Brofessor <lins6 thoughts re the Lerry "pence mode of cross8 will beneficently
share his thoughts on cross&e#amination.Lerry "pence in a moc cross&e#amination. Eere6s a cross&e#amination blawg that6s worth
a pee: they6ll try to sell you a boo. The DO2 even has a criminal justice site for ids that contains a sample cross 7+8. The theater
guy has a video that echos a couple of the many points that BonIer N Dodd and Brofessor 5c<lhaney have been maing for years.
5ore fascinating, here6s the cross&e#amination of .aIi Albert "peer by 0obert E. 2acson at the .uremberg $ar 1rimes Tribunal.
7A couple of civil lawyers 7+8 have done a brief post&mortem of 2acson6s cross of Eermann Loering at the .aIi $ar Trials.8 %or
other written resources chec the 112A ,ibliography.
: -our Tube Oideo 1lips' 5ovie&goers may find some segments of cross on -ouTube, e.g., Tom 1ruise crosses Kiefer "utherland
in 3 2e *ood +en, "pencer Tracy cross&e#amines %rederic 5arch in &nherit the 6ind$1harles Laughton crosses prosecution
witness 5arlena Dietrich in 6itness for the 1rosecution: 2oe Besci as+y Cousin <inny crosses the grits&cooing eyewitness: the
stuttering public defender in +y Cousin <innystumbles and bumbles his way through cross of an identification witness: Andy Lriffith
as +atloc# displays an over&the&top cross: embattled Due La1rosse DA +i#e 7ifong is crossed during bar proceedings against
him.
: A web site contains the trial transcript of all the witness e#aminations in a well nown child abduction and murder 71eople of
California v$ 6esterfield8. The lawyering on both sides was of high quality.
Q Listen to the podcast of )istening as a 5en 1art S#ill. Test your listening sill at 0andall6s Lab
: The Ten Commandments & The father of modern trial advocacy was a judge&prosecutor&defense attorney&law professor
named !rving -ounger. $hile spending a semester as a visiting scholar at the Earvard Law "chool, ! had the pleasure of seeing the
dynamic -ounger in action. Ee was a man you didn6t forget. "everal speaers on the current 1L< roadshows pattern their speaing
approach after him. !n his early years on the stump and before he developed his own uniquely winning style, Brofessor
5c<!haney was reminiscent of -ounger. %rom my perspective, -ounger was a more fascinating speaer than all his current
copycats put together. 5ore importantly, he got us thining about modern techniques of persuasion in the courtroom. The professor
went to a heavenly reward at an early age, but left his indelible mar on the trial bar and several generations of advocacy students.
-ounger6s simple list of 9Ten 1ommandments of 1ross&<#amination,9 i.e., ,e ,rief & Use "hort Fuestions and Blain $ords & Always
Use Leading Fuestions & Always Know the Answer to the Fuestion & Listen to the Answers Liven &Don6t Fuarrel $ith the $itness &
Don6t Let the $itness 0epeat Eis "tory & Don6t Let the $itness <#plain & Don6t As One Fuestion Too 5any & "ave -our Ultimate
Boint for Argument, were a legend in their time & the late J>6s. Tae a loo at this slightly more contemporary streaming
video analysis of -ounger6s commandments by a young civil lawyer 7pull the collar of that coat down8 from Te#as. "ee also 7+ & a
variation of -ounger6s version8, 7;8 on the commandments.