Don’ts for Cross-Examination

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CROSS-EXAMINATION ROOKIE MISTAKE #1: PITTING

Don’t Ruin Your Cross-ExaminationCross-examination intended to compel the witness to contradict another witness by calling the other witness a liar is called “pitting,” and it is a rookie mistake and reversible error in this nation. Michael E. Tigar noted notes that this isn’t true elsewhere around the world: “The rules limit your ability to ask [...]

LESSONS FROM THE CROSS-EXAMINATION OF OSCAR WILDE

The Maxims of Cross-Examination in an Oscar Wilde TrialThe Marquis of Queensbury, believing that his youngest son was involved in an unhealthy relationship with Oscar Wilde, made every effort to separate the two. Queensbury’s attempts culminated in sending a note to Wilde addressed to “Oscar Wilde, posing as a somdomite.” Wilde responded by suing Queensbury [...]

LEARNING WHAT NOT TO DO ON CROSS-EXAMINATION

Law Students Watch Horrible Cross-ExaminationsHorrible cross-examinations are ubiquitous. Every day of the court week, they take place on every floor of the courthouse. Seeing is believing, understanding and knowing what not to do.For the first time, I added to my Seattle University Law School Comprehensive Trial Advocacy course a requirement that the students spend a [...]

TRUISMS FOR CROSS-EXAMINATION

David Paul Jones’s Rules of Cross-Examination (Jones was a British barrister who wrote a century and a half ago)1. Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate. Truth, falsehood, hatred, anger, scorn, despair, [...]

CROSS-EXAMINING THE EYEWITNESS

Violating the CommandmentsA long time ago in a courtroom far away a young defense attorney whom we shall call Hamilton Mason defended a man named Johnny Lee Johnson on a charge of robbery. The prosecution called its first witness Victor Victim, an older gentleman who wore glasses with incredibly thick lenses. Victor gave a vivid [...]

DON’T RUIN YOUR CROSS-EXAMINATION

Checklist of Traps for Cross-ExaminationDon’t ruin your cross-examination by stumbling into these traps. Avoid: Cross-examination when appropriate. Lack of thorough preparation. Showing that you are wounded by an answer. Not actively listening to the answer. Failing to maintain composure. Having the jury perceive you as discourteous or as someone who is not a seeker of [...]

DISTORTING THE WITNESS’S TESTIMONY: LINDBERGH CASE

Cross-Examination Distorts the TestimonyQuestioning is a cooperative effort. The examiner suggests facts to the witness, and on the basis of the presupposed facts, requests additional information. The witness adopts the suggested facts as true and provides the requested information. Consider the following simple exchange:Q: What is your name? [Presupposed fact, the witness has a name; [...]

PART 2 – WHAT TO DO OR NOT DO ON CROSS-EXAMINATION?

Probably the Prosecutor's Best Cross-ExaminationIn our last post, we examined the trial of a belatedly truthful young murder defendant who decided to confess on the witness stand. We reproduced his testimony and posed two questions: What did the prosecutor do in this situation? What would you do in the same situation? Here is what happened [...]

WHAT TO DO OR NOT DO ON CROSS-EXAMINATION? – PART 1

Now What?A long time ago in a courtroom in the Florida panhandle, a young man stood trial for Murder in the First Degree. His lawyer, one of the pre-eminent defense attorneys in the area, had done an excellent job of chipping away at the State’s case, casting doubt on the evidence and suggesting that another [...]

KNOWING WHEN TO BREAK THE RULES OF CROSS-EXAMINATION

A Shot-in-the-Dark You could call it a locked-room murder but not a locked-room mystery. The murderers were locked in the room with their victim. Two inmates contrived to get themselves locked into the same cell with another inmate and proceeded to strangle him with a garrote. When a correctional officer came down the row of [...]