Know When to Cross-examine and Know When to Pass

Posted on January 4, 2016 by Julie Brook, Esq.

witness_158992082Theres a time-honored rule that, if a witness hasnt hurt your clients case, dont cross-examine the witness, just stay seated. But whether this injunction makes sense depends on the strength of your case and the possibility that the witness can actually help it. Here are some situations in which youll want to get up and cross!

Start off with the understanding that competent opposing counsel will rarely call a witness to testify without believing that the witness will help some part of their case. This means that most witnesses called by the opponent will hurt your case, even if only slightly.

If the witness doesnt seem to have caused much damage to your case, you may be tempted to pass on cross-examination. This makes sense if the risk of examining the witness outweighs the potential gain. In that situation, you should definitely stay seated.

But there are times when its wise to examine a witness, even though your case hasnt been hurt during direct. Here are some examples to keep in mind:

Know-nothing witness. The witness has been called to discredit one of your clients co-parties but knows nothing implicating your client. This situation sometimes occurs in civil cases and often comes up in criminal trials. Heres a typical low-risk examination of such a witness:

Q: Mr. Smith, isnt it true that you met with the Green brothers over ten times, and each time you discussed the sale of heroin?

A: Yes.

Q: Isnt it a fact that Charlie Green paid you each time you delivered uncut heroin to 312 Orchard Street?

A: Thats true.

Q: Would you please look over toward the table where I have been sitting during your examination. Do you recognize the man in the brown suit?

A. No.

Q: Never saw him before in your life?

A: Not until this trial.

Q: Isnt it also true that neither of the Green brothers ever mentioned the name of my client, Charles Rogers, during any of your meetings with them?

A: Thats true.

Certainly helpful witness. In a civil case (with a deposition transcript), you may be certain that the witness will provide helpful testimony on cross-examination. If youre certain, you should cross-examine. A jury will be impressed by testimony favorable to your clients case coming from the mouth of a witness called by the opponent.Rogue witness. If you have a sound intuition that cross-examination might be beneficial, risk it. Experienced attorneys will sense when an opponents witness isnt running true to plan. But dont be overconfident or take foolish risks on a hunch. For example, if a victim bank teller has been unable to identify your client (a jail-garbed defendant) as the stick-up man, dont try to drive home the point through further cross-examination.

Learn about many more time-honored rules on cross-examinationand when to break themin CEBs Effective Direct and Cross-Examination, chap 4.

Other CEBblog posts on cross-examination:

The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blogs author and/or owner is strictly prohibited.

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Filed under: Civil Litigation, Criminal Law, Legal Topics, Litigation Strategy, Trial Strategy Tagged: | attorneys, cross-examination, litigation tactics, trial skills, witness examination