chap8crossexam

Chap8crossexam - CROSS-EXAMINATION 8.1 Purposes A witness between two lawyers is like a fish between two cats iBeniamin Franklin A lie may live and

Info iconThis preview shows pages 1–10. Sign up to view the full content.

View Full Document Right Arrow Icon
Background image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
Background image of page 2
Background image of page 3

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
Background image of page 4
Background image of page 5

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
Background image of page 6
Background image of page 7

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
Background image of page 8
Background image of page 9

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
Background image of page 10
This is the end of the preview. Sign up to access the rest of the document.

Unformatted text preview: CROSS-EXAMINATION 8.1 Purposes A witness between two lawyers is like a fish between two cats. iBeniamin Franklin A lie may live and even wiggle after it has been spiked. but not beyond the sundown. w{Matthew} Heywood Campbell Broun Crossexamination is the process of questioning an adverse party or witness} Cross-examination questions should be limited to those which reveal information necessary to support statements made in the closing argument. Cross-examination usually consists of narrow. leading questions by the attorney. which call for “yes” or "no" or specific answers. There are exceptions to this generalization which are most likely to occur during supportive cross-examination. How— ever. careful consideration must be given before open—ended ques— tions are asked on cross-examination. See § 8.3. Cross-examination serves two primary purposes: Destructive Cross. Cross-examination can be used to discredit the testifying witness or another witness. This may be accomplished in several ways including attacking the credibility of the witness or testimony. Most of the questions asked on cross-examination will be designed to reduce the credibility or persuasive value of the oppo- sition's evidence, Supportive Cross. Cross-examination can be used to bolster evi- dence that supports the crossexaminer's theory of the case Cross- examination may be used to independently develop favorable aspects of the case not developed on direct examination. Outline CASE LAW—LOCAL PRACTlCE & PROCEDURE—IDEAS _ Notes Q w\, Cross-Examination 8.2 Preparation and Organization A. Background B. Anticipation C. Scope of Cross— Examination D. Credibility E. Should There be u Cross-Examination? 271 Full preparation. including knowledge about the facts. evidence. law. opponent. and witness involved will facilitate cross-examina- tion. All available discovery and investigation techniques should be used to find out everything there is to know about the case. Anticipation of the opponent's side of the case is essential Con- siderations include what all the witnesses will testify to. how the other side will try the case. how both sides of the case can be attacked. and what evidence can be kept out under the rules. The scope of crossvexamination will usually be limited to ques- tions involving the subject matter of the direct examination or the credibility of a witness. See FRI-j 611. Most judges will provide cross- examiner reasonable latitude to explore relevant areas affecting the case or the credibility of a witness. The outside limits of cross-ex— amination fall within the discretion of the trial judge. If an area of inquiry extends beyond the scope of direct and does not involve credibility. then the CIDSS-E‘x’anlitter has at least two op» tions. The attorney can request that the judge in his or her discretion permit a broader inquiry. or the attorney can call the witness to testify as an adverse or hostile witness during the presentation of the case in chief or during rebuttal. Factors involved in evaluating and attacking the credibility of a witness include bias. interest. association with the other side. motive. experience. accuracy. memory. demeanor. candor. style. manner of speaking. background. and intelligence. See Section 8.5. The following areas should be considered when weighing the credibility of the testimony: t. is the testimony consistent with common sense? is the testimony consistent within itself? Is the testimony consistent with other testimony presented in the case? 4. Is the testimony consistent with the established facts of the case? into The most important decision in cross-examination is whether to cross-examine. The following should be weighed in making that de- termination: 1. Has the witness hurt the case? 2, Is the witness important to the other side? 272 Cross-Examination F. Preparing Written Questions in Advance C. Structure H. Attention 3. Will the jury expect cross-examination? Will it affect the Lase if no Cross-examination is done? 4. Was the witness credible? :3, Did the witness leave something out on direct examination that might get in ii there is a cross-examination? Was the Omission intentionally set up as a trap for the inexperienced crosseexams iner? 6. Will cross-examination unavoidably bring out information that is harmful to the case? i Are questions being asked only for the sake of asking questions? 8. Does the witness know more than the attorney does about the case? 9. Will the witness be very difficult to control? ‘10. Has the witness been deposed or given statements? \1 Cross-examination is most effective when questions are prepared in advance. Most prepared questions will not need to be significantly altered during the trial, but an attorney must retain flexibility to adapt to new material or inconsistencies as they arise. The areas selected for cross should be structured in a way that clearly shows their purpose and helps the fact finder remember that point. It is advisable to begin and end the cross with strong points. See Form 8-1 Cross Examination Outline. Close attention to the witnesses on direct examination may reveal signs of deception, lack of assurance. or bluffing that can be explored on Cross-examination. The attention shown by the jury or judge may also be a clue, Outline CASE LAW—LOCAL PRACTICE & PROCEDUREfilDEAS Notes “. Cross<Examination 8.3 Presentation and Delivery A. Confidence B. Not Repeating Direct Examination C. Leading the Witness D. Simple. Short Questions E. Factual Questions F. Controlling the Witness G. Maintaining Composure H. Adopting Appropriate Approach 273 A confident attitude will assist in making the cross effective and persuasive. Generally, any repetition of the direct examination will only em- phasize the opponent's case. However, repetition of any part of the direct that is supportive of the cross-examiner's case may be effective and with careful consideration may justify the use of an open-ended question or a question that requires an explanatory response. Questions that suggest or contain the answer should be asked on cross. Questions that require “yes,” “no,” or short, anticipated an- swers help control the witness so the testimony develops as antici- pated. The question “why” and questions which require explanations should be avoided because they call for openended answers which cannot be controlled. Short. straightforward questions in simple, understandable lan- guage are most effective. Broad or confused questions may create problems of understanding for witnesses, attorneys, the jury and the judge. Questions which seek an opinion or conclusory response may permit the witness to balk or explain an answer. Questions which include fact words and accurate information will force the witness to admit the accuracy of the question. The most effective way to control a witness is to ask short factual questions. Some witnesses may need to be politely directed to re- spond: some witnesses may require the intervention and control of the judge. An attorney who displays a temper or argues with a witness may irritate t‘hefcourt an e 1ury, ing them to sfci'e‘WVitlr‘t‘l‘iewitness or the‘opponent. In addition, such conduct makes thinking difficult and will draw objections. Some witnesses may deserve righteous indignation, others may be attackedkhiit‘inost‘rieed to'be carefully and courteously led. A cross-examiner can be very effective by being politely assertive and persistent without having to attack a witness. 274 l. Stopping When Finished I. Good Faith Basis K. Witnesses Requiring Special Consideration Cross-Examination When the planned questions are asked and the desired infor- mation is obtained, the attorney should stop. It may hurt the case more by asking too many questions than by not asking enough. An attorney cannot ask a question on cross unless the attorney has proof of the underlying facts. An attorney cannot fabricate in~ nuendos or inferences on cross-examination The attorney must have a good faith basis which includes some proof of such facts. That proof may not be admitted as extrinsic evidence but the attorney must have available or access to a witness or document to support a fact. Certain witnesses require special consideration in both the for— mulation and delivery of questions. These witnesses include chil- dren. relatives. spouses. experienced witnesses. investigators. ex- perts, the aged, the handicapped. and those with communication problems. Outside resources may be used to assist in developing tac- tics to deal with special witnesses. CASE LAW—LOCAL PRACTICE & PROCEDURE~IDEAS Outline Notes '\ Cross-Examination 275 8.4 Expert Witnesses Areas for Cross-examination of experts parallel areas for lay wit- nesses and permit additional areas of inquiry regarding: , Their fees: The number of times they have testified before; Whether they routinely testify for the plaintiff or defendant: Their failure to conduct all possible tests, The biased source of their information, Their lack of information, The existence of other possible causes or opinions. The use of a treatise to impeach. Oommp‘f—wmw It is critical for a cross examiner to develop absolute mastery of the expert's field before examining the expert in a specific area. A well constructed concise hypothetical question may be effective cross— examination if it is clear, complete. and well presented and it it elicits an opinion contrary to the testimony on direct examination. Cross~Examination 8.5 Impeachment A, Factors B Sources of Impeachment 277 Impeachment discredits the witness or the testimony. To evalue ate whether impeachment is appropriate, the following should be considered: 1. How unfavorable is the testimony and how much did it hurt the case? 2. Will impeachment be successful? 3. Is there a sound basis for impeachment and can it be accom- plished? 4. Is the impeachment material relevant to the facts or the credi- bility of the witness? Is the impeachment material within the court's discretion and not too remote or Collateral? See Form 8-2 Cross Examination Planning Worksheet. Ul The credibility of a witness may be attacked in any number of ways. The following factors represent the more common and frequent matters employed to reduce the credibility of a witness. Many wit- nesses will not have obvious or apparent weaknesses in their testi~ mony. The factors listed below and similar matters may raise implie cations and create inferences which reduce to varying degrees the credibility of a witness. ‘l. Misunderstanding of Oath. The witness may not understand the oath or know the difference between telling the truth and telling a lie. This situation will rarely arise. . Lack of Perception. The witness may not have actually observed the event. or the witness may have perceived something through the senses (sight. taste. hearing. smell. or touch] and it can be shown that conditions were not favorable to that perception. 3. Lack of Memory. The witness may not have a sound. independent memory of what was observed. 4. Lack of Communication. The witness may be unable to ade— quater communicate what was perceived. 5. Bias. Prejudice, or Interest. The witness may have a personal. financial. philosophical. or emotional stake in the trial. 6. Prior Criminal Record. The witness may have a prior criminal Conviction which may be admissible, See FRE 609. Local law and practice may limit the use of this information. . Prior Bad Acts. Testimony concernng a witness" prior bad Con- duct may sometimes be used to impeach a witness if it is pro- bative of untruthfulness. 8. Character Evidence. A witness may he impeached by a Character witness who is familiar with the reputation of the witness for truth and veracity or who has an opinion regarding the truthful- neSs of the witness. See FRE 508(a). to \r 278 C. Extrinsic Evidence and Collateral Matters D. Use of Inconsistent Statements for impeachment Cross-Examination 9. Prior Inconsistent Statements or Omissions. The witness may have made former contradictory or inconsistent oral statements or may have omitted some facts during previous testimony or in a prior statement. If the witness denies these prior statements a copy of the statement or another witness may be needed to prove them. Former contradictory or inconsistent written statements or admissions or omissions may be discovered in letters. entries in books or journals, business records, and signed or unsigned state- ments. Other sources include sworn statements or testimony from prior hearings, grand jury or coroner‘s inquests. administrative hearings or deposition transcripts The witness may have previ- ously failed to mention facts testified to on direct or may have made contradictory or inconsistent statements in the pleadings, affidavits. or other court documents in a case. An attorney may or may not be able to introduce extrinsic evi» dence if a witness denies a crosssexamination impeachment question Extrinsic evidence is evidence introduced through a source other than the witness, such as another witness or document. Whether extrinsic evidence is or is not admisable depends on whether the facts are “collateral” or “non-collateral" to the case. A matter is col~ lateral and not admissable if it has no connection to the case. A matter is non—collateral and is admissable it it has a relationship to the case. The statements must be inconsistent or contradictory to be used. The document referred to must be available to prove the inconsis— tency. Federal Rule of Evidence 613 provides the attorney with the option of not showing the prior statement to the witness, but this option may be altered by tactical considerations or by local rule or practice. The introduction of prior inconsistent statements or onnnissions usually includes three stages: 1. The cross-examiner commits the witness to the direct examiner tion testimony. This may be done by having the witness repeat such testimony to reaffirm the evidence. 2. The crossexaminer will usually then lead the witness through a series of questions which describe the circumstances and setting of the prior inconsistent statement. 3. The crossexaminer will then introduce the prior inconsistency. This may be done in several ways, The attorney may read from the prior statement or have the witness read it. A fourth possible stage involves the attorney exploring both state- ments with the witness. but this may provide the witness with a chance to explain the discrepancy. Q”: t l i l l t Cross—Examination E Cross~e.\’umination of Character lt'itness Outline The opposing lawyer can request that other portions of the, prior statement be introduced contemporaneously with the impeaching testimony to prevent a cross examiner from introducing selective facts out of context. FRE 106i The opposing lawyer on redirect will usually have the witness explain or clarify any discrepancy or rehabilitate the witness with a prior consistent statement, if available. See FRE Character witnesses may be impeached like any other witness. They may also be crossexamined regarding their knowledge of spe- such questions—whether commandments—will conduct an effective cros . Avoid one question too many. . Save it for summation. . Ask short questions and use plain words. , Never ask anything but a leading question Ask only questions to whi Listen to the answer. Do not quarrel with the witness. Do not permit a witness on cross-examination what the witness said on direct examination. Never permit the witness to explain anything. ch you already know the answers, to simply repeat e applicable to all cases and all sit- ‘ er who has a legitimate reason for ask' or not that reason “violates” one of the ten s~examination CASE LAW~LOCAL PRACTICE & PROCEDURE—IDEAS Notes ...
View Full Document

This note was uploaded on 02/10/2011 for the course SCHC 390 taught by Professor Songer during the Fall '08 term at South Carolina.

Page1 / 10

Chap8crossexam - CROSS-EXAMINATION 8.1 Purposes A witness between two lawyers is like a fish between two cats iBeniamin Franklin A lie may live and

This preview shows document pages 1 - 10. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online