Begin with non-controversial questions the witness must agree with, establishing a pattern of "yes" answers and asserting control over the pace and topic.
Ask questions that contain the answer (statements ending with a tag like "isn't that right?"). One fact per question keeps the witness from explaining away the point.
If the witness's testimony contradicts prior depositions, reports, or statements, confront them with the exact inconsistency using the "commit, credit, confront" technique.
Explore limitations on the witness's ability to perceive events (distance, lighting, intoxication) and reveal any motive to be untruthful or biased.
Elicit admissions that support your case theory. The witness often cannot deny objective facts that, when assembled, tell your client's story.
Never ask "why" or one question too many. Once you've made your point, move on. Do not give the witness an opportunity to explain or rehabilitate.
Cross-examination is often called the "greatest legal engine ever invented for the discovery of truth." The cross-examiner uses leading questions — essentially statements with a question mark — to control the witness and elicit concessions favorable to the cross-examiner's case. Effective cross-examination is focused, uses short questions with single facts, and leads the witness to a predetermined conclusion. Attorneys cross-examine to impeach credibility, draw out facts favorable to their case, or limit the damage of direct testimony. The scope is generally limited to subjects covered on direct and credibility, though judges have discretion to allow broader questioning.
Attorney: "You were 100 yards away from the intersection, correct?" Witness: "Yes." Attorney: "It was dark outside?" Witness: "Yes." Attorney: "You weren't wearing your prescription glasses?" Witness: "No, I wasn't." Attorney: "And yet you're certain you identified my client from that distance, in the dark, without your glasses?"
Attorney: "Mr. Barnes, you testified on direct that you've never had problems with the defendant. Isn't it true that you filed a complaint against him with HR in March of last year?" Witness: "Well... yes, but—" Attorney: "Thank you. And isn't it true that complaint alleged harassment?"
Opposing Counsel: "Objection, beyond the scope of direct." Judge: "Sustained. Counsel, please limit your questions to matters covered on direct examination or credibility."
The most common student mistake is asking "one question too many" — asking the witness to explain an answer after obtaining a favorable concession. Another mistake is asking open-ended questions on cross, which surrenders control to a potentially hostile witness. On cross-examination, the attorney should be making statements that the witness merely confirms.
Davis v. Alaska, 415 U.S. 308 (1974)
Held that a defendant's Sixth Amendment right to cross-examine witnesses about bias outweighs a state's interest in protecting the confidentiality of a juvenile offender's record.
Delaware v. Van Arsdall, 475 U.S. 673 (1986)
Established that improper restriction of cross-examination regarding witness bias is subject to harmless error analysis rather than automatic reversal.
Olden v. Kentucky, 488 U.S. 227 (1988)
Held that exclusion of evidence of a witness's cohabitation with another man denied the defendant his constitutional right to cross-examine regarding bias and motive to lie.
What is the purpose of cross-examination?
The purpose of cross-examination is to test the credibility, accuracy, and completeness of testimony given on direct examination. Attorneys use leading questions to challenge the witness's account, expose biases or inconsistencies, and elicit facts favorable to their client. It is often called the greatest engine for discovering truth.
Can you ask leading questions on cross-examination?
Yes, leading questions are not only permitted but expected on cross-examination. Because the witness is presumed hostile or adverse, the examining attorney is allowed to control the witness through questions that suggest the desired answer. This is one of the fundamental differences between direct and cross-examination.
What is the scope of cross-examination?
Under the federal rules and most jurisdictions, cross-examination is limited to the subject matter of direct examination and matters affecting witness credibility. This is known as the "scope rule." However, the court has discretion to permit inquiry into additional matters as if on direct examination.
Is cross-examination a constitutional right?
Yes, in criminal cases, cross-examination is a constitutional right guaranteed by the Sixth Amendment's Confrontation Clause. The Supreme Court has called it an essential safeguard of the accuracy and completeness of testimony. Denial of adequate cross-examination can constitute reversible error.
Direct examination is the initial questioning of a witness by the party who called that witness to t...
Redirect examination is the questioning of a witness by the calling party after cross-examination, l...
Impeachment is the process of attacking a witness's credibility to reduce the weight the jury gives ...
Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted. ...
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