Cross Examination

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Cross-examination is the legal process of interrogating a witness that has been called to testify by the opposing party in a legal proceeding. When a party calls a witness to testify in court, he must follow certain rules in questioning the witness. This is called “direct examination.” Once this questioning is finished, the opposing party is given an opportunity to question the same witness, in a procedure known as “cross-examination.”

The questions asked on cross-examination are limited to those subjects discussed, asked, or answered during direct examinations of the witness. An effective cross-examination may bring to light certain contradictions, raise doubt, or even obliterate the prior testimony of the witness. To explore this concept, consider the following cross-examination definition.

Definition of Cross-Examination

Noun

  1. The questioning of a witness who has already testified, for the purpose of discrediting the witness’ testimony, knowledge of the event, or reputation.

Origin

1655-1665       English common law

What is Cross-Examination

During court proceedings, witnesses are called to the stand and questioned by the attorney who called them. After that attorney ends his questioning, the attorney for the opposing party is given the opportunity to ask questions of the same witness. This is known as “cross-examination,” serves the purpose of discrediting, or causing doubt about, the witness’ credibility or truthfulness, or even about his knowledge of the matter.

Cross-examination is governed by different rules than direct examination in two ways: (1) cross-examination questions can only cover topics or facts covered on direct examination, and (2) leading questions are allowed. Leading questions are those which suggest an answer in and of themselves, or which put words into the witness’ mouth. When cross-examinations does not go well, however, it can strength the credibility of the witness, or reinforce that party’s position. Cross-examination is a fundamental right in the United States judicial system.

Types of Cross-Examination

In general, there are two types of cross-examination: supportive cross-examination, and discrediting cross-examination.

Supportive Cross-Examination

Supportive cross-examination involves asking questions in an attempt to have the witness provide information that supports the cross-examiner’s case. This type of questioning is not intended to attack the witness, or to discredit his testimony, but to obtain information that fills in the gaps in his testimony under direct examination, or to obtain some type of admission. During supportive cross-examination, the attorney is attempting to show the judge or jury that the opposing party’s own witness lends credibility to the case.

Discrediting Cross-Examination

Discrediting cross-examination attempts to bring doubt on the witness’ testimony of facts. This may be done by showing that the witness’ testimony does not make fit in with what other witnesses and evidence say, or that it does not make common sense.

A witness’ testimony may be discredited through discrediting cross-examination by showing any of the following:

  • The witness is unable to understand the obligation to tell the truth in court
  • The witness has some problem of perception
  • The witness is unable to effectively communicate his testimony
  • The witness has a faulty memory
  • The witness is biased, or has an interest in a particular outcome in the trial
  • The witness has some motive to lie on the stand, such as if he has been threatened or bribed
  • The witness has made prior statements that are inconsistent with one another, or with his current testimony
  • The witness has prior criminal convictions that may affect his testimony or believability

Cross-Examination Questions

Cross-examination is one of the few times an attorney can pose leading questions to a witness. These are questions which suggest an answer, such as “You intentionally misled Mrs. Smith, correct?” It is not uncommon for a cross-examiner to ask repetitive questions, altering them slightly, in an attempt to get the witness to say something that supports his side of the case. During this process, however, the judge has some control, and can put an end to questioning if he feels the cross-examiner is repeatedly asking the same question, or badgering the witness.

Examples of leading vs. non-leading questions:

  • Leading question: “On October 6, you were at Millie’s Pool Hall, correct?” (this question suggests that the witness was at Millie’s Pool Hall)
  • Non-leading question: “Where were you on the evening of October 6?” (this question allows the witness to form his own response)

Challenging Credibility on Cross-Examination

The main goal of cross-examination questions is often to undermine the credibility of the witness, or to get him to testify to additional information that furthers the cross-examiner’s case. This may be done by showing that the witness is somehow prejudiced in his understanding or testimony, or that he has a stake in the outcome of the proceedings. It may also be done by pointing out that the witness’ testimony during direct- or cross-examination contradicts other statements he has made. A witness’s entire testimony may be discredited, or rendered worthless, by showing that he has a history of lying, or of other dishonesty.

Redirect Examination and Recross Examination

After a witness has been directly examined and cross-examined, both attorneys are given an opportunity for redirect examination and recross examination of the witness. This is often done to clarify testimony given, or address any subject brought up during, prior questioning.

For example:

  • On direct examination, Jill testifies that she saw Robert hit Mark with a steel pipe on the date in question.
  • On cross-examination, Jill admits that she forgot her glasses at home and was not wearing them when the incident occurred.
  • On redirect, the prosecution establishes the fact that Jill had her contacts in at the time.
  • On recross, the defense attorney tries to get Jill to admit that her contacts were not the right prescription, as she had not had an eye exam in several years.

The Art of Cross-Examination

Being able to render an effective cross-examination is a critical skill for any trial attorney. Skillfully asked questions can turn even the opponent’s witness into a resource for strengthening one’s own case, and undermine the opposition’s claims. While each attorney ultimately develops his or her own method of cross-examination, the goal is the same. Some tips for developing the art of cross-examination include:

  • Keep it short and simple – ask short questions using only a few plain words
  • Always ask leading questions – lead the witness to give the answer sought, and do not let him explain his answers
  • Avoid asking open-ended questions – questions such as “Why?” allow the witness the opportunity to say a great many things, none of which may be the desired answer
  • Read the case file prior to trial to gather cross-examination material
  • Choose major points on which to impeach a witness
  • Impeach a witness based on written statements made, or prior testimony
  • Stop once the point has been made – continuing to ask questions on a point already answered appears to be badgering, or harassing the witness
  • Never ask a question to which the answer is not already known

Discrediting Testimony of Expert Witnesses on Cross Examination

On Christmas Eve in 2002, pregnant Laci Peterson was reported missing from her home in Modesto, California by her husband, Scott. In the beginning, police did not suspect Scott Peterson as their friends and family members strongly advocated his innocence following the disappearance. As time went on however, his story began changing, and police grew suspicious. After looking into Scott’s personal life, police learned he had engaged in several extramarital affairs, the most recent being with a young woman named Amber Frey. Frey contacted police, saying that Scott had told her that he had “lost Laci,” and that he would be spending Christmas without her. This conversation, took place 14 days before Scott reported Laci missing.

While Frey proved to be a star witness for the prosecution of Scott Peterson once he had been charged with the murder of his wife, the prosecution placed a great deal of weight on the testimony of various expert witnesses. One such witness, Rick Cheng, a hydrologist working with the United States Geological Survey testified as an expert on tides, as Laci’s body, and that of her unborn fetus, had eventually washed ashore near San Francisco Bay. Following Cheng’s testimony as to where Laci’s body likely started out before being brought to shore by the tide, Scott’s attorney took up cross-examination, and got Cheng to admit that his findings were a “probable, not precise” scenario, as the tidal systems in the area are often chaotic.

Scott’s defense attorney, Mark Geragos, called Dr. Charles March as an expert witness, believing his testimony would exonerate Scott by showing that Laci’s fetus had died a week after the date claimed by prosecutors. Under cross-examination, however, Dr. March admitted that his opinion had been based on an account by Laci’s friend, which stated Laci had taken a home pregnancy test on June 9, 2002. When the prosecutor pointed out that there were no medical records confirming the June 9th date, Dr. March became agitated and confused. After March asked the cross-examining prosecutor to give him “some slack,” the jurors had apparently discounted his prior testimony.

On November 12, 2004, the jury convicted Scott Peterson of first-degree murder for the death of Laci, and of second-degree murder for the death of the unborn baby. On December 13, 2004, the jury sentenced Scott Peterson to death.

Related Legal Terms and Issues

    • Expert Witness – A witness possessing training, education, skill, or experience in a specific subject, that is beyond that of the average person, who is allowed to give an opinion at trial.
    • Jury – A group of people sworn to render a verdict in a trial, based on evidence presented.
    • Second-Degree Murder – An intentional killing that is not planned or premeditated.
    • Testimony – A declaration or statement of a witness under oath, usually in court.
    • Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.
    • Witness – An individual who can provide a firsthand account of something heard, seen, or experienced.