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Cross-Examination. Eveyone Knows About It, But How Is It Done ?

In today's blog post, I discuss the art of cross examination, what it is, the purpose it serves and how it is done. Cross examination is not always designed to be an attack on a witness and, often times, the witness that has testified for the other side can provide information that will help you. So us attorneys do not always need to malign the credibility of every witness that takes the stand against our clients.

In general, cross-examination serves two purposes (1) to test and attack the credibility of a witness, and (2) to elicit additional information relating to matters about which the witness testified on direct. Cross examination is considered to be a fundamental part of the trial process and it has developed into the status of a right of any party in a case.

As a general rule, the scope of cross examination (the topics that can be covered) is limited to the areas covers on direct examination. One exception to this general rule is that if a topic addresses credibility and it has some relevance to the case before the Court, the Court will generally permit the topic to be addressed on cross examination. Cross-examination may sometimes cross over into entirely new matters, however, if there is no objection made by the other party or the attorney conducting cross examination asks the Court for permission to proceed into a particular area and is granted permission.

Judges do have discretion to curtail or restrict the scope of cross examination as well. Normally, a judge will restrict cross-examination if the topic is repetitive, cumulative, overly collateral irrelevant or abusive. Parties do have the constitutional due process and confrontation rights afforded to them.

The manner in which we attorneys cross examine witnesses varies too. Many attorneys attack witness' credibility right away. I prefer to elicit testimony from a witness at the beginning of my questioning that may help my client's case and then begin to attack their credibility. Attorneys normally use leading questions during cross examination as well which provides us with a significant advantage. What is a leading questions you may ask ? Well, one easy example is if you are discussing the weather. A non-leading questions would be "What is the weather like today ?" where a leading questions would be "Dear Ms. Smith, is it 75 degrees and sunny outside today ?" The second question in this example is your leading question and they are generally defined as a question that suggests and answer.

One other method for cross examination is impeachment. I discussed this topic in a recent blog post here and I will just touch on a few brief methods. You can impeach a witness by prior inconsistent statements, prior omissions or current omissions in their testimony, you can attack the witness for having a bias, you can attack a witness' perceptions or lack or memory and you can impeach a witness through the use of prior acts and prior criminal convictions as well.

As most of you know, cross examination occurs after the witness has testified on direct examination. Occasionally, you will see a situation where an adverse party will call the other party to the witness stand and start cross examination right away, but this can be risky as you do not have the benefit of that party's direct testimony in the case.

There are other types of questioning that may occur on cross examination as well like voir dire. Basically voir dire is a line of questioning that is used to challenge the foundational information for a piece of evidence. Attorneys are also permitted to question a witness on redirect and recross. However, each time there is redirect or recross the scope of the topics that may be covered is limited to the scope of the prior questioning so each segment should become shorter and shorter until questioning is complete.

With all of this said, I hope that our readers, if they have questions about how cross examination works, will feel free to reach out to us. I am always happy to field questions from clients, other attorneys and prospective clients by e-mail. If you are in need of our services, please also feel free to call and schedule a consultation with us at your convenience.