Seven Steps to Cross Examination

cross-examination that skill that most attorneys are afraid of afraid of it because they don't understand it and because they believe what has been said about it most attorneys believe that it's the most difficult skill to properly perform in the courtroom and that is absolutely not the case if you approach it properly and organize it in the right way you can be extremely effective as a cross examiner regardless of your personality and regardless of your level of experience there are really seven things that I need to do to be an effective cross-examiner I have to perform my case analysis I've got to have a clearly defined purpose for every set of questions that I ask the witness I have to understand control techniques ways to get the witness who's being difficult who won't respond back under control and those includes something as simple as raising your hand and restating the question or saying ma'am thank you but that was not the question that I asked you did you understand my question let me ask it again there are various control techniques that you must develop but you you've got to be certain that you use details in the structure of the Cross because details give you control details make the difference as to whether or not you're in charge or the witnesses in charge if you're going to impeach the witness with the specific means of impeachment under the rules of evidence then it needs to be an impeachment that matters so that when you're done both you and the jury understand that something important is just occurred and whenever possible in the development of the cross-examination use the witness's own words to force agreement so those are the things that we think about as we begin to develop cross examinations that work we cross examined for three reasons to introduce a fact to highlight a either to strengthen it or weaken it or to attack the credibility of a witness or to strengthen the credibility of another witness these are the reasons that we cross and once we understand that we can use these fundamental reasons to create effective cross examinations what are the basics lead one fact per question and each subset of your questions have a logical goal we start in the back and move to the front you want to be at that point where when you ask the last question everyone in the room knows based upon the answer to your earlier questions what the response must be and if they don't get that response they have a moment of cognitive dissonance of disbelief and they don't believe the witness and when that happens you've won so leading questions what is a leading question you may have heard this you may have even been taught this by your trial as a professor assuming that you had won you went to the store correct you got out of the car didn't you isn't it true that you were there that afternoon these are all examples of taglines where I add the words isn't it true isn't correct wouldn't you agree isn't it so there's a much cleaner way to do it you got up that morning you went to the store you got out of your car you walked to the front door now that's an example of cross-examination using statements as questions it's a perfectly acceptable means of cross-examination and is actually in some jurisdictions now the preferred me so the nice thing about it is is it gives you control and lets you establish the flow of the story of your section of the cross-examination and it lets you do it in a way where you can drive the train because you can cross with very few words focus on the fact that you want to get out in cross-examination is all about one fact questioning where the witness has no choice other than to give you the answer that they have to give you'll notice I was also using voice inflection in both of those examples so why do we use leading questions on cross-examination because there are some folks who say hey you should never use leading questions or you should mix them up occasionally an open-ended question is fine if the witness really doesn't have a choice about what it is they're going to say anyway but leading questions give you control they give you the ability to set the tone and the focus of the cross-examination and that's the goal of Krauss you need to be able to set the tone and the focus so that you can establish whether or not the witness is credible they've already had their chance on direct examination to tell their story in an uninterrupted fashion why in the world would you give them that chance again by using open-ended questions I think of it this way an old boss of mine used to say you always want to keep the witness on the point of the spear that witness will only go where you allow them to go so why illogical progression to your questions within each subset or issue that you're going to look at on cross well you want a logical progression because it sets the witness up it implements the goals of your case analysis and it gets the jury there first and it creates that sense of tension that is so present that is so interesting in books plays movies and the like and you want to use that same sort of structure so that it's almost like we know there's something in the closet that's going to get us and we're just waiting for it to come out by the same token the way in which I move within the courtroom the way I use my body is very different from direct examination I'll come out into the middle of the courtroom now I want to pull focus away from the witness and towards me I also don't stand by the jury because I don't want the witness giving their rehearsal eyes to the jury I want them looking at me and if I'm asking them questions and they refuse to look at me and talk to the jury the entire time that I'm asking them a question I'll stop and say excuse me sir I'm over here asking you the questions have you been coached not to look at me when I ask you a question sir would you agree with me that it's polite to look at someone when they speak to you I'm trying to be polite to you sir could you please be polite to me thank you will continue I'll also move when movement is appropriate to underline a point I never move while asking the question but from one question to the next a step forward another step forward and then finally when I'm asking that question we all know the answer to I may not even look at the jerk at the witness I'm looking at the jury to see what it is that the jury thinks of what this guy or person just said now tone matters you want to remember that not every witness can be a liar and a bad guy and a bully and a cheat and a thief a lot of them are simply mistaken and you don't have to go for the you're a liar aren't you if you can get that you made a mistake this time and that's a judgment call no one likes a bully in the courtroom least of all when the bully happens to be an attorney think of it this way I'm not going to be rude to that witness until the witness's behavior gives me permission to be rude within the courtroom it's a choice it's a choice that we allow the witness to make but it's really not because from the from the lawyers perspective if they're rude that's even better because it looks like there's something that they're trying to hide so how do I organize this to make it work I focus on that logical progression to get the jury there first I relate my cross-examination to the theme and theory of the case and every question leads to a goal question where do I find that information so that I have this control from the prior statements of the witnesses the logical gaps in what they've said the facts that are incredible that I know they're going to have to not admit to and the helpful facts that maybe came out during the in court testimony that I want to underline this cross should bring together and in hand the goals that you've identified through case analysis the one fact for question shows the jury where you're going and it helps you identify those similar facts that make it believable in the minds of the jury think of it as though you're climbing a staircase to a door that's at the top you want to open that door so that everyone in the jury sees what's inside and your questions as you go up each step are one fact and they help the jury see what's behind the door so by the time you go to reach out to open it they already know what's behind it when you reach the point that you can do that you can create effective cross examinations on the fly use these techniques that we've talked about I believe you'll find that they're very effective and you'll never have a need to be afraid to cross-examine again you

Channel: Charles Rose

Views: 257,251

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Keywords: Premiere_Elements_10

Id: -Kha__fMWIg

Length: 10min 1sec (601 seconds)

Published: Mon Sep 10 2012