Cross-Examination - The Art And Style Of Cross-examination

During direct examination, the party who has called the witness to the stand will, if at all possible, appear to let the witness tell his story on his own. The style of direct examination—nonleading questions, which do not point the way to a particular answer—is generally required by the rules of evidence. It also makes tactical sense for the examiner, since the fact finder will probably not believe someone who sounds like he is just agreeing to words that a lawyer puts into his mouth. The picture presented may be quite artificial, since the examining lawyer may have done a lot during trial preparation to structure the witness's account. But much of the persuasiveness of a witness's account will come from the integrity of his narrative—i.e., the degree to which the witness conveys a plausible story in language appropriate to both the story and to the witness himself (or at least what the witness seems to be).

If the key to a successful direct examination is constructing a narrative, the key to cross-examination is deconstructing that narrative, and perhaps developing an alternative one. The goal of the cross-examining attorney (at least when she thinks her side has been disadvantaged by a witness's testimony) is to highlight the artificiality of the narrative presented on direct examination, showing it to be selective and willful. And the style of cross-examination is calculated to achieve this goal. Here, where is it less likely that the witness will cooperate with the examiner's project, the rules of evidence will permit counsel to proceed through leading questions, and she is apt to do so. Indeed, cross-examination will generally be done through a sequence of short questions that cannot plausibly be denied, and that are barely "questions" at all. A lawyer conducting a good direct examination will often seem to fade into the background. On cross-examination, the lawyer takes center stage, sometimes even over-shadowing the witness. The effect is rarely, if ever, that depicted in the movies or on television, when the browbeaten witness collapses on the stand and admits having committed the crime himself. Nor must cross-examination be done in a loud voice, five inches from the witness's face. Judges tend to protect witnesses against such abuse, and it is rarely a productive tactic anyway. Nevertheless, a good cross-examination can still be quite dramatic.

Keeping a tight rein on the witness through leading questions to which the witness can answer only "yes" or "no," the good cross-examiner may use a variety of tactics to lessen or even reverse the impact of the witness's direct examination. She may make the witness go back over some of the terrain covered during direct examination, forcing the witness to concede "facts" inconsistent with the previous narrative. She may confront the witness with statements the witness made before trial that are inconsistent with the witness's direct testimony. She may challenge the witness's ability to have perceived the events in question, or to have remembered them. She will, if possible, impeach the witness's credibility by eliciting admissions concerning his bias toward or against a party in the case. She may question the witness about previous instances in which he lied or acted deceitfully, in an effort to suggest that the witness is the kind of person likely to lie or shade the truth. She may also try to show the "true" character of the witness, by baiting him into shedding the calm demeanor with which he responded to questions on direct examination. Sometimes, the cross-examiner will not even care what the witness says. The point is to let the jury see him squirm. The judge will generally instruct that questions are not "evidence," but that the jury can still consider the witness's responses in the context of the questions. The difference between taking assertive questions as fact and taking them as mere "context" may seem small or nonexistent, particularly to a lay juror.

The general rule used to be that a party could not impeach the credibility of people it had called to the stand, the rationale being that a party had "vouched" for the credibility of those witnesses. Recent years have seen the rejection of this rule, however. Rulemakers have generally come to recognize that parties may be forced to put on witnesses whose testimony is true only in certain parts, so far as the parties are concerned, and may need to impeach the witness on other parts.