Cross Examination Tips

Preparation

1. Identify Government witnesses ASAP
   • Check court’s file for Government subpoenas
   • Motion to disclose experts
   • Get discovery early
2. Learn what they will say before they testify
   • Lock them in
   • Get info that helps your case
   • Get told to go you know where? Perfect!
   • Meet with officers/investigators for other undocumented statements – Do not trust that reports/affidavits are complete! Did any witnesses get blown off by the investigator?
3. Gather evidence to cross with
   • Criminal history
   • Prior statements for impeachment ask your witnesses about letters, phone calls, anything with the Government’s witness
4. Prepare an outline – Do not script!
   • Give yourself time to think – bounce ideas off of other people – knowing what makes sense is easy but explaining it is hard
   • Have goals for each witness –
   • Do not go overboard
   • What MUST this witness agree with – good questions
   • Set up your argument – don’t give it
   • Incorporate the witness’s testimony to respond to ridiculous answers
   • Organized exhibits/affidavits – have a copy of every exhibit you need with your outline, or get the materials from evidence organized so you are not fumbling – the jury is watching

At Trial

Do not feel like you have to cross examine every witness. You must discipline yourself to always stay on message with the theme of your case. If the witness did not harm the arguments with respect to your theme of your case, then his or her testimony is irrelevant. Bring on the next witness. In some cases, a witness is so good against you that only more harm can come through cross and especially another re-direct. Get them off the stand! Do not do more harm to your case.

Never go over the direct examination again unless facts are unclear or confusing and you need them clarified. Do not be repetitive. Do not be boring. Less is more. Score your points and get out. That said, some cases have a witness that you can literally tear apart for hours on end and never ask the same question twice. This is, of course, the opposite of boring for the jury and fun for the attorney involved. Just be honest with yourself and know why your questions are important and tie into your theme.

Of course, never ask a question that you do not know the answer to OR that you don’t care what the answer is. Some great cross questions involve the witness having several possible answers, but none of them legitimate, so you can just let fly and watch them squirm. The important thing is preparation and lots of time to think. You can’t come up with a great cross the night before. The best ideas take time and revision and more revision.