A Former Prosecutor Defending Clients in Wyoming and South Dakota

What to Expect on Cross-Examination

Cross-examination is one of the most difficult parts of a trial for a witness or a criminal defendant. In fact, in all but a few rare instances, most criminal defense attorneys advise their clients not to testify at trial, precisely because they would face the possibility of being cross-examined by a prosecutor intent on convicting the defendant and having him sent to jail. Cross-examination is not something that can be “won.” Rather, it is something to be survived with as few mistakes as possible so that your attorney can clarify aspects of your cross-examination on redirect.

If you do testify at trial, you will be subject to cross-examination. It is important that witnesses understand the difference between cross-examination and direct examination, the role of cross-examination in the context of the entire trial, and how to survive cross-examination.

What Is Cross-Examination?

The purpose of cross-examination is to test the credibility of statements the witness made during direct examination. It gives a party to a criminal trial, through an attorney, the opportunity to question, challenge, and test witnesses who are called by the opposing party. If you are a defendant in a criminal trial, your attorney will have a chance to cross-examine the prosecution’s witnesses against you. If you are a witness for the defense, or the rare defendant who testifies on his one behalf, you will be subject to cross-examination by the prosecutor.

Each party to a criminal trial has the chance to call witnesses on his behalf. The party who calls the witness to testify goes first and asks the witness questions. This is called direct examination. In direct examination, the attorney is not allowed to ask leading questions.

When the attorney who called the witness has finished his direct examination, the opposing attorney will have the chance to cross-examine the witness. Attorneys use cross-examination to question the accuracy of the witness’s memory, explore the witness’s biases, and challenge the witness’s ability to identify certain facts that they testified to. A common way to challenge a witness’s credibility is to ask the witness if they have been convicted of a felony or “crime of moral turpitude.”

In cross-examination, attorneys are allowed to ask leading questions.

Leading Questions Versus Non-Leading Questions

Leading questions are questions that are asked in a way that suggests the answer. The question tells the witness what his answer should be. “What is your name?” is a non-leading question that can be asked on direct examination. “Your name is John Smith, isn’t it?” is a leading question that suggests that answer and asks the witness to respond with either “yes” or “no.”

According to the rules of evidence, attorneys are not allowed to ask leading questions on direct examination. The idea is that it would be unfair to allow the attorney to testify by asking a friendly witness questions that suggest the answers. On direct examination, the attorney must ask non-leading questions.

On cross-examination, attorneys are permitted to ask leading questions.

In some cases an attorney can ask the judge to treat the witness as “hostile.” In that case, an attorney can ask leading questions on direct examination.

Surviving Cross-Examination

If you will be called to testify in a criminal case, it is important to keep your testimony short and to the point. Emphasize a few key points that you will drive home to the judge and jury.

When answering questions, whether on direct examination or cross-examination, honesty is key.

It is important that a witness is credible. Be confident in your answers and body language, and give concise answers.

Remember that you are not there to argue the case. That’s the lawyer’s job.

There is no way to “win” a cross-examination. The other lawyer has spent hours preparing his cross-examination. By many estimates, a lawyer will spend an hour of preparation for every 10 minutes of questioning on cross examination.

The only way to “win” cross examination is to withstand it.

Remember that cross-examination is just one part of the trial. As a witness, your goal is to not lose too much on cross-examination. Once the cross examination is over, your lawyer will have a chance to repair your testimony on redirect.

The best way to be successful on cross-examination is to not engage in an argument at all. Just listen to the question, and answer in as few words as possible. The less information you give the opposing attorney to work with, the less he can do on cross-examination.

When you answer questions, be as truthful and as brief as possible. Don’t lose control or get upset. Save your version of what happened for direct examination or re-direct.

A lawyer’s goal on cross-examination is to get you to say things that you do not want to say. He will have identified the areas he wants to cover and the points he wants to make, and will ask questions in such a way as to make you answer the question in a way that benefits his case.

The opposing attorney is aware, of course, that you do not want to help him win his case, and that you will try to avoid answering the questions in the way that he wants you to.

And if you do have evidence that is damaging to his case it is highly unlikely that the lawyer will give you a chance to talk about. Save that information for when your attorney asks you questions on direct examination, or for after the opposing lawyer has finished his cross-examination and you have a chance to clarify your testimony on redirect.

Tips for a Successful Cross-Examination

If you are being called to testify in a criminal trial, there are some tips to keep in mind.

  • Listen carefully to the prosecutor’s question and let him ask his entire question before you answer.
  • When you do answer, answer the question that is being asked, but nothing more. For example, if the attorney asks if you had been drinking alcohol on the night in question, and you had, simply say “yes.” Don’t tell the lawyer how many drinks you had. Similarly, if the lawyer asks “Is it true that you had six beers that night?” when you only had 3, just say “No.” Don’t volunteer any information on cross-examination until the attorney asks for it.
  • Stay calm and don’t argue. Fighting with the opposing lawyer will not win you any points in the long run. If you stay calm while the lawyer loses his cool, you will score big points with the jury.
  • Tell the truth. Don’t argue or try to avoid answering the question. There will be some good points and some bad points during any cross-examination. To be successful, tell the whole truth, even if it contains some information that may be damaging. If the overall testimony is favorable and you didn’t get into an argument with the lawyer, it is likely that your testimony will be well-received.
  • Think before you answer the question. There is nothing to be gained by answering a question quickly. Take a breath before answering the question, and think about what you’re going to say before you say it.
  • Don’t guess. If you don’t know the answer to the question, or if you don’t understand the question, tell the lawyer you don’t know or politely ask him to rephrase the question in a way that you understand.
  • Cooperate, but don’t get forced into an inaccurate answer. Answer the question without getting into an argument. But don’t let the lawyer force you to say something that isn’t true or is not accurate. You can disagree while still remaining courteous.
  • Prepare for your testimony. Review earlier statements that you made so that your testimony is consistent. Being prepared has the added benefit of making you feel more relaxed and helps you tell the judge and jury “the truth, the whole truth, and nothing but the truth.”

The Legal Team of Christina L. Williams—Protecting Your One Shot at Justice

If you or someone you care about has been charged with a crime, effective legal representation is critical. The team of criminal defense professionals at Just Criminal Law stands ready to help if you are facing criminal charges.

From our offices in Gillette, Wyoming, we proudly represent people who have been charged with crimes throughout eastern Wyoming and western South Dakota. Learn more about the cases we handle and why people choose us, then contact us today to schedule your personalized case review and strategy session.

DISCLAIMER: The information contained in this article is offered for educational purposes only. This information is not offered as legal advice. A person accused of a crime should always consult with an attorney before making decisions that have legal consequences.

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