Cross Examination of Witnesses

Hon. J. dj. Vibandor.

Professor

Jacob Ballos
Student

Cross Examination and Its Purpose

The basic purposes of cross-examination are (1) to elicit
testimony which is favorable to the cross-examiner's theory of
the case, and (2) to undermine the witness's direct testimony by
challenging the witness's credibility or his or her testimony.
During the early stages of cross-examination, when the witness
is most likely to be cooperative, the cross-examiner induces the
witness to divulge information which is consistent with counsel's
version of the facts. In many cases the cross ends when these
facts are in the record. In other cases, counsel conducts some
form of impeaching cross examination. The impeaching
examination is usually held in abeyance, however, until counsel
has capitalized on the positive approach.
The specific goals of cross-examination vary from person to
person. There are, however, several basic objectives
underpinning most cross-examination. Counsel may commit the
witness to a specific version of the facts so that the witness can
be impeached with prior inconsistent statements or contradicted
by
extrinsic
evidence.
The
examiner
may
spotlight
inconsistencies in the witness testimony. Inconsistencies may
indicate that the testimony is mistaken or deliberately falsified,
or that the child is confused, uncertain, highly suggestible, or
lacking in personal knowledge of the facts. The examiner may
hope to show that the witness was coached, or that the direct
testimony was memorized. Finally, cross-examination may
demonstrate that the witness lacks the capacity to observe,
remember, or communicate.
A. Cross examination of a Child Witness
Cross-examination of child witnesses is a delicate and
difficult business. When testimony from a child constitutes the
central evidence on a litigated issue, the skill and ingenuity of
the examiner may determine the outcome of the case. The
importance of cross-examination cannot be overemphasized, and
as counsel prepares to take the child on cross.
Examination of a child as to his competence shall be
conducted only by the judge. Counsel for the parties, however,

can submit questions to the judge that he may, in his discretion,

ask the child. The counsel may object during trial that questions
asked of the child are not appropriate to his developmental level.
The use of a support person which is a person chosen by the
child to accompany him to testify at or attend a judicial
proceeding or deposition to provide emotional support for him
for his best interest.
B.

Examination of a Perjured Witness

If perjured testimony in our courts were confined to the
ignorant classes, the work of cross-examining them would be a
comparatively simple matter, but unfortunately for the cause of
truth and justice this is far from the case. Perjury is decidedly
on the increase, and at the present time scarcely a trial is
conducted in which it does not appear in a more or less flagrant
form. Nothing in the trial of a cause is so difficult as to expose
the perjury of a witness whose intelligence enables him to hide
his lack of scruple. There are various methods of attempting it,
but no uniform rule can be laid down as to the proper manner to
be displayed toward such a witness. It all depends upon the
individual character you have to unmask. In a large majority of
cases the chance of success will be greatly increased by not
allowing the witness to see that you suspect him, before you
have led him to commit himself as to various matters with which
you have reason to believe you can confront him later on.

C.

Cross examination of an Elderly Witness

So how do you cross examine an Elderly without causing
the Judge to hate you? Because the lawyer is in control, asks the
questions and is the power figure, the Judge views the lawyer as
an abuser and the witness as the sympathetic underdog. If you
hit him too hard the Judge will side for him.
Carefully, diplomatically, quietly, understated, and politely.
This is the time to keep your natural aggression under control. If
he doesnt understand a question, apologize and repeat. Keep
strict self-control. If you raise your voice or lower yourself to
sarcasm, you lose. My weakness is always sarcasm. So keep
repeating it to yourself if you wander from the program you

will lose. Ask the same questions, use same tactics, still impeach,
but do it low key.
Before you can get anywhere with Elderly you first must
undermine his sympathy factor. Expose the ugly part him glosses
over. Get the judges attention immediately or he will stop
listening.
D.

Examination of an Expert Witness

The best way to take on the other sides expert is to any of
the following indirect approaches:

Attack the Expert Head On

Impeach with Accepted Authority or Treatise
Modify the Hypothetical
Attack the Other Experts Facts
Expose the Bias of the Other Sides Expert
Attack the Experts Qualifications
Attack the Experts Specialty
Make the Expert Your Witness

The key to success is being prepared and putting the

appropriate approaches to use in a careful, calculated by
considerate way.
Always remember to separate the person from the issue. In
most cases you dont ever want to allow things to get too
personal or unprofessional. Nobody likes a bully so even if you
know youre right, show the decision maker what the issues are
without raising your voice or degrading the other expert.
E.

Cross examination of an Hostile Witness

A hostile witness, otherwise known as an adverse
witness or
an unfavorable
witness,
is
a witness at trial whose testimony is either openly antagonistic
or appears to be contrary to the legal position of the party who
called the witness.
In cross-examination conducted by the opposing party's
attorney, a witness is presumed to be hostile and the examining

attorney is not required to seek the judge's permission before

asking leading questions. Attorneys can influence a hostile
witness to influence the way the witness perceives the
situation to understand their likely responses. The attorney will
integrate a hostile witness' expected responses into the larger
case strategy through pretrial planning and through adapting as
necessary during the course of the trial.
F.

Cross examination of a Biased witness

A witness is said to be biased when his relation to the
cause or to the parties is such that he has an incentive to
exaggerate or give false color to his statements, or to suppress
or to pervert the truth, or to state what is false.
The cross-examiner often needs to discredit a potentially
biased or damaging witness in the eyes of the jury without
appearing to be doing so in an unfair way. Typically the crossexaminer must appear friendly, talk softly and sincerely to relax
the guarded witness. Or on other occasions they may start by
being more confrontational, unsettling an already disturbed
witness. They typically begin repeating similar basic questions in
a variety of different ways to get different responses, which will
then be used against the witness as misstatements of fact later
when the attorney wants to make their point. If it is too obvious
the questions are too clearly repetitive and making the witness
nervous, the other attorney may accuse the cross examiner
of badgering the witness. There is a fine line between badgering
and getting the witness to restate facts differently that is
typically pursued.
The less the witness says, and the slower the witness
speaks, the more control they can maintain under the pressure
of a crafty opponent. The key for a witness is to understand the
facts that they believe to be the case and not add additional
thoughts to those facts, lest they be used to undermine the
testimony. Sticking to the brief known facts is key for the
witness, making it difficult for the cross-examiner to make the
witness appear confused, biased or deceitful. The cross
examiner will assume the witness has been told that and begin
asking supporting questions about where the witness was, what
time it was, what the witness saw, what they said, and sooner or

later upon asking again the witness may use a different word
that will give the cross-examiner a chance to ask the question
again doubtfully and pointedly implying contradiction. The
witness will try typically to explain and clarify, which sometimes
reveals weakness in the witness's statements of fact. Other times
the witness is just being truthful but undermined for the purpose
of casting doubt to the jury and or judge.
G.

Cross examining an Evasive Witness

A witness who wants to evade questions and attack the
attorney can do so without that attorney having any ability to
stop the behavior immediately.
Make sure that your questions are narrow, simple and
clear; if the witness has a legitimate basis to evade your
question, opposing counsel will object when you keep repeating
it. If in doubt, pause and think of a way to rephrase your
question so that the witness is required to answer it fairly. To
repeat, patience and persistence is the key to success; narrow
specific questions will help you reach that goal.