The Cross-Examination

The cross-examination of witnesses is one of the most crucial and distinctive parts of a trial.  Witnesses can make a variety of claims during directs that courts will not take seriously if they do not stand the test of cross-examination.

Preparation
The key to good cross-examination, like the key to much else in mock trial, is extensive preparation.
Attorneys should know the witnesses’ witness-statement as well as, or better than, the witnesses themselves.  Because attorneys have prior access to the witnesses’ statements, they know the main points to elicit from them even before they take the stand.  

Control
On cross-examination, an attorney must control the witness.  The primary way of doing this is through the use of lightly-worded leading questions that highlight the attorney rather than the witness – whereas the directing attorney wants to fade into the background, the crossing attorney wants to take center stage.
Rules restrict the use of leading questions during direct examination where the witnesses tell their own stories.  On cross-examination, by contrast, the leading question is the good attorney’s trademark.   Attorneys often preface such questions with, “Isn’t it true that?” or “Wouldn’t you agree that?”  Or he may end questions with “Isn’t that true?”  Or “Wouldn’t you agree?”
Crossing attorneys typically increase their pace during cross-examination over that of directs, further establishing their control over the witness.
Repetition
During cross-examination, mock-trial attorneys frequently spend too much time covering material that opposing attorneys already covered on direct.  Occasionally, attorneys ask witnesses to repeat testimony just prior to an impeachment, but generally, attorneys gain little from having witnesses repeat what they have already said.  All a crossing attorney is likely to do by asking witnesses to repeat this testimony is to reinforce its veracity.  
Repetition can be a convincing rhetorical tool, and there is little value in giving the opposition a chance to reiterate testimony that it already has on the record.  
Because of time constraints, poor planning, or simple mistakes, directing attorneys sometimes fail to get a key point from one or more of their witnesses.  Crossing attorneys should not provide this evidence for their opponents by covering it in their crosses. After the initial cross, the attorneys on redirect are limited to material that was relevant on cross.  If attorneys do not raise a point on direct, and there is no cross on this point, then for all practical purposes, it should be dead.  It is foolish for one side to give ammunition to its opponents.

The Golden Rule
Attorneys should never ask a question to which they do not already know the answer, unless the answer doesn’t really matter.
Generally, it is far better to ask a witness, “Isn’t it true that you were almost 500 feet away from the crime you say you witnessed?” and then stop after getting an affirmative response and leave the jurors to their own conclusions, perhaps being reminded of the answer during the closing.  An attorney who is tempted to ask for an explanation may find that the witness claims he was peering through binoculars.  
Oops.
One classic legal tale is of an attorney defending a man alleged to have bitten off another man’s ear.   “Did you actually see my client bite the ear?” he asked one witness.  “No,” was the reply.  Not satisfied with this “No” response, the attorney went on to ask one too many questions:  “Then, how can you be so sure?”  The witness responded: “I saw him spit it out.”
Oops.

Adversaries
The witness being cross-examined is a member of the opponent’s team.
I have seen many student attorneys who were sure they knew what a witness would have to say to a hypothetical question, only to find that the witness did not cooperate as expected.  Attorneys foolish enough to open the door to unexpected answers (answers not in the witness statement) deserve whatever responses they elicit! 
Witnesses cannot contradict their affidavits during cross-examination, but they may make up testimony that is not inconsistent with these affidavits.  An attorney should never accept an invitation by an opposing witness to act out what the witness claims to have seen.  
Leading questions generally call for “yes” and “no” answers.  Especially in a mock trial where time is so limited, attorneys do not want a witness from the other side monopolizing their time.  A wise crossing attorney will never ask “what do you think about X” or “Do you have an opinion about the cause of the accident?” or “How would you characterize the defendant?” Under certain circumstances, attorneys might appropriately ask, “Didn’t you state in your affidavit that you believed the accident was caused by wind-shear?” or “Didn’t you testify that you thought the defendant failed to brake properly?” or “You’ve characterized the defendant as a sweet little old lady, haven’t you?”

Evasive Witnesses 
No matter how tightly attorneys word their questions, many witnesses will prove evasive on cross-examination.  At the end of an evasive response, attorneys often find it helpful to ask, “May I take that as a ‘yes’?” or “May I take that as a ‘No’?”  Similarly, attorneys might say “Perhaps you didn’t understand the question, what I asked was …” or “I appreciate your answer, but what I really wanted to know what …” Such questions generally steer the witness back on course and let the judge know that the attorney has not lost sight of the original query.

Aggressiveness
Like witnesses, attorneys need to watch the tone of their voices.  Attorneys should keep witnesses on course without appearing rude or condescending. An attorney who claims to appreciate a non-responsive answer but who says so in a condescending tone will send a confusing message to the judge and jury.
Judges will vary in how much they allow witnesses to say during cross-examination.  Some will expect simple yes or no answers; others will allow witnesses to provide some explanations for their answers, especially if they have first answered with a yes or no.
Some attorneys handle every cross-examination as though it were an inquisition.  Indeed, some become hostile as soon as they ask the first question. This is almost always a mistake. Some witnesses certainly deserve “gloves off” treatment, but an attorney who aims a withering barrage of questions at a generally sympathetic witness, especially one who has sustained a loss or has been crying, is likely to bring more ire on the attorney than on the witness.  For their part, witnesses can sometimes deflect what would otherwise be withering cross-examinations by answering pleasantly and helpfully and highlighting the crossing attorney’s aggressiveness.

Expert Witnesses
Especially when dealing with expert witnesses, good crossing attorneys often use the expertise of the witness to elicit points of agreement before attempting to impeach or undermine credentials.  The attorney may thus begin with something like, “Doctor, I would like to begin by exploring some areas on which I think we agree.”  “You do agree that the defendant sustained a serious injury, don’t you?”  “Wouldn’t you further agree that the bills for this type of injury ran into thousands of dollars?” “And symptoms of this injury might appear throughout the defendant’s life?” 
Only after eliciting such facts should an attorney then question the doctor’s expertise or experience.  
In every case, the attorney should tailor the cross examination to the specific witness. The most effective part of a good cross-examination is often the impeachment.  Because of its importance, it is treated in a separate section.

Time Management
Crossing attorneys sometimes forget that their team only has a certain amount of time designated for cross-examination.  Such attorneys should know before they get up to do their cross how much time their team has allocated for this activity, and the attorneys need to work within these limits. There is little value in allowing one attorney to get a perfect score on cross if the attorney does so by squeezing time that should be available to colleagues.
Crossing attorneys, like attorneys giving openings and closings, should recognize that they probably will not be able to make every point that they would like to make.  Generally, attorneys do far better to concentrate on three or four points than to use a scatter-gun approach that suggests that the witness is not credible but really lacks adequate focus.

Listening
Crossing attorneys are sometimes so certain of what they expect a witness to say that they really do not listen to their response.  This can result in lost opportunities!  An attorney should be prepared to alter questions to deal with unanticipated responses.  This is one advantage of coming to the podium with a general outline in ones head rather than with a long series of written questions that may or may not prove responsive to the actual answers that an attorney receives.
Generally, a crossing attorney, like a directing attorney, should end on an important point.  Usually, this means that an attorney should not sit down immediately after being overruled.  A crossing attorney who has a question that he or she knows will likely elicit an objection will probably not end with it and sit down after a negative ruling. 

IMPEACHMENT
Attorneys use impeachment to attack the credibility of a witness. In an impeachment, an attorney shows how something the witness said during the direct examination or during cross-examination itself, contradicts, or substantially adds to, something else that this same witness said in an affidavit.  Assuming they are not petty, such contradictions substantially undermine a witness’s credibility.
Typically, an attorney gets the witness to repeat testimony. “Now, didn’t you just testify on direct examination that…?”
The attorney is then likely to ask, “Do you remember giving a sworn affidavit before coming to court today?” If the [point is particularly important, and the lie is blatant, the attorney may ask some additional questions: “Didn’t you testify to tell the truth, the whole truth, and nothing but the truth in this deposition?”  “Didn’t you promise to correct or update your affidavit that …” and repeat the testimony that contradicts what the witness just said.
If the witness continues to deny a contradiction, the attorney will then ask permission to approach opposing counsel.  After a judge grants permission, the attorney will approach opposing counsel, hand the attorney a copy of the affidavit, and say “Let the record reflect that I am now showing opposing counsel a copy of the witness’s sworn affidavit.  After subsequently asking to approach the witness, the attorney will present the affidavit to the witness and ask, “Do you recognize this document?” The attorney will now say something like “Please read along silently with me as I read x and y of your affidavit.”  Never let the witness read this passage aloud – they will eat up your time.  
The attorney will then read the passage that appears to conflict with the witness’s statement.  Make certain there is nothing in the witness’s affidavit that would allow the witness to qualify his statement.