February 18, 2015
And part of this preparation in regards to live witnesses is crafting just the right questions for each of your witnesses. After all, your questions guide the witnesses on just what to say and how to say it – which can often have a pivotal impact on the outcome of your case.
Given the significance of a properly prepared witness, it’s no surprise that many attorneys will rigorously prepare their witnesses well before the trial so that they say exactly what they are supposed to say.
But after the direct examination of every witness comes the cross-examination – when opposing counsel has his or her own crack at your witness, and will use this opportunity to ruin your witness’s credibility as much as possible. Fortunately, it’s possible to prepare your witnesses for this to a certain extent by anticipating the possible weaknesses in the story and the points which the opposing counsel is most likely to attack.
On the other hand, it’s very difficult to prepare ahead of time for your own cross-examination of the opposition’s witnesses; despite the fact that you’ll know who those witnesses will be at some point before the trial actually begins, you don’t know exactly what they are going to say until you are listening to them say it in the courtroom.
And unfortunately, you can’t question these witnesses on any subjects that they didn’t testify about on direct examination (with the exception of impeachment, which we’ll get into in more detail later), leaving you only with as long as the witness is speaking during direct examination to prepare an effective cross-examination. And sadly, the narrowness of this window doesn’t diminish the importance of having a fully developed cross-examination strategy ready and waiting.
As such, it’s important to make full use of the limited time you have.
First, pay very close attention to what the witness on the stand is saying. How does his or her version of the events compare to the version that you’re trying to present? Why is it different? These points of inconsistency should be the areas of your focus on during cross-examination so that your version of the events appears as the most reliable.
Also identify any inconsistencies or weaknesses in the witness’s narrative. If something doesn’t make sense to you, it probably doesn’t make sense to the judge or the jury either, so make sure to focus on these points in your cross so that the witness’s story appears less credible.
Naturally, though, most witnesses won’t willingly say something to contradict themselves or the story that he or she just told. And this is why you don’t ask open-ended questions during cross-examination; put another way, you, rather than the witness, are leading the narrative during cross-examination.
This is accomplished by phrasing all of your dialogue with the witness in the form of “yes” or “no” questions – questions that you will already know how the witness will answer. These “questions” are basically argumentative statements turned into questions with the addition of a word or phrase (e.g., “Isn’t it true that…” and “…correct?”).
In sum, when you’re preparing your cross-examination, first structure it as a rebuttal-type argument, and then rephrase your main points as closed questions. This will ensure that the witness deviates as little as possible from what you what him or her to say. And in case the witness finds some other way to start talking about things that you don’t want the rest of the courtroom to hear, interject another question to get him or her back on your point.
On a final note, there is one area of cross-examination for which you can prepare ahead of time: impeachment. As mentioned earlier, this is one area that you don’t have to feel limited to only the topics discussed on direct examination. Instead, you can come up with any subject for which the witness can be impeached. For example, if the witness was caught cheating on an exam in college, you can ask about that. The same applies for a commission of a crime of dishonesty (fraud, theft by swindle, etc) or any other act that would raise questions about the witness’s trustworthiness.
The major caveat here is that you will need to have some kind of corroborating evidence to support any claims of dishonest behavior in case the witness flatly denies them. It’s also important to observe for any inconsistencies in the witness’s testimony on direct examination that may be the result of mental or physical impairment (poor eyesight, hearing, etc).
In addition, be fully aware of any statements made by the witness about the facts of the case prior to his or her taking the stand. If something the witness says conflicts with a prior statement in, say, a police report, bring that up. And if it benefits your case, point out the fact that his or her memory was probably fresher about the incident immediately after it occurred rather than months later under the scrutiny of the courtroom.
Considering that trials are often decided on witness testimony, the effectiveness of your cross-examination technique can literally win the case for you – which is why it is important to make the most of the little preparation time that you have.