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The Art of Cross-Examination

Every good trial lawyer knows how to effectively cross-examine a witness. Unfortunately, very few law schools teach students how to do it, so lawyers usually learn the basics on the job slugging it out in the trenches. That and watching the masters at work is how I learned the craft.

You have to know your case thoroughly and you have to strategize. Sometimes the most effective cross-examination is to rise and say, “I do not have any questions for this witness, your Honor.”

Let us say, for example, that the witness is a nervous and frightened old lady who did not say anything that hurt your client. You might be able to figuratively smack her around on some minor point, but toward what end? The jury would hate you for showing off at her expense. The last thing in the world that you want to do during a jury trial is piss off the jury.

When you decide to cross-examine a witness, you must know exactly what you want to accomplish before you ask a question, and to the maximum extent possible, you must always ask leading questions that can be answered with a simple “yes” or “no.” Never ask open-ended questions that permit a witness to ramble on retelling their story. The jury is more likely to remember what the witness said, if you provide the witness with an opportunity to retell their story.

You cannot get anywhere arguing with or shouting down a witness and calling him a liar. You must always be polite and respectful. Unless the witness is a child, always address the witness formally as Mr., Ms. or Mrs., Dr., Sergeant, Officer, etc. Never address the witness by their first name and always pronounce the person’s name correctly. Remember that you are an officer of the court and comport yourself correctly.

Never ever ask a question, if you do not know what the answer will be. I recall trying a case with a lawyer friend who shall remain nameless. Our respective clients were L.A. gang members (Bloods) indicted in federal court in Tacoma, WA with participating in a multi-state drug conspiracy distributing massive amounts of crack cocaine. In all there were 10 defendants, including our clients.

The government’s case against his client was very weak. Although federal agents arrested his client in the gang’s drug house in Tacoma at the same time they busted the other defendants, the government did not have a witness who could tie him to the gang or implicate him in any drug dealing. They did have a photograph, however, which they seized during a search of the house, in which my friend’s client was flashing gang signs over a pile of money on a table in a kitchen.

The government’s last witness was an FBI agent whom the government called to testify about serving the search warrant and what they found in the residence after they arrested the defendants and searched it. The photograph was one of the last items in a laundry list of evidence that the agents seized. The agent identified it as a photograph of the defendant that he found in the defendant’s backpack. The Assistant U.S. Attorney moved the photograph into evidence and the judge admitted it.

After the Assistant U.S. Attorney concluded the direct examination of the FBI agent without further reference to my friend’s client, I figured his client was home free because the kitchen depicted in the background of the photograph differed significantly from the kitchen depicted in other photographs of the kitchen in the drug house taken by the agents when they raided and searched it. “Not Guilty,” the two sweetest words in the English language, as we defense attorneys used to say, appeared to be the almost certain outcome for my friend’s client, since notwithstanding the gang signs and the pile of money, the government had not presented any evidence regarding when or where the photograph was taken and no witness had ever seen him in the drug house or associating with the defendants who were arrested there.

But it was not to be.

My friend walked over to the lectern, whereupon the following exchange took place,

“Good afternoon, Special Agent Jones.”

“Good afternoon, Counsel.”

“Madame Clerk, would you please hand the witness Government’s Exhibit 1023 A. Thank you.”

Now, Special Agent Jones. I believe you testified on direct that you seized this photograph from my client’s backpack after you arrested him, is that correct?”

“Yes, Sir. Yes, I did.”

“Now, you spent several hours in the house where my client was arrested searching, seizing, and inventorying the evidence that you seized, didn’t you?”

“Yes, sir. I actually spent 3.3 hours there.”

“So you had plenty of time to familiarize yourself with every room in the house, including the kitchen, is that correct?”

“Yes, Sir.”

“And the kitchen depicted in the background of Government’s Exhibit 1023 A is not the same kitchen, is it?”

“Uhm, you’re right. It isn’t the same kitchen.”

“You’re certain about that, aren’t you?”

“Yes, I am.”

“In fact, you don’t know when or where that photograph was taken, do you?”

“Well, Counselor. As a matter of fact, I do.”

May the record reflect that for the next five minutes the back of my friend’s neck turned an ever intensifying red hue as the smiling Special Agent identified the kitchen as a kitchen in the same gang’s drug house that he had searched pursuant to a search warrant in Los Angeles the day before his client was arrested.

Part 2 tomorrow: Cross-examination by prior inconsistent statement.

Cross posted from my law blog.

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.