Or Better Yet – Ten Cross-Examination Guidelines
The late, great Professor Irving Younger (whose CLE videotapes are still
gems and worth viewing) gave us the ten commandments
of cross-examination. He could talk all day about them, using memorable and
humorous illustrations. We cover these commandments in Cross-ExaminationHandbook.
Professor Younger threatened to haunt his listeners if they ever violated
one his ten commandments. These ten commandments
are still viable and important:
IRVING
YOUNGER’S TEN COMMANDMENTS
OF CROSS-EXAMINATION
OF CROSS-EXAMINATION
1. Be brief.
2. Short questions,
plain words.
3. Always ask leading
questions.
4. Don’t ask a
question, the answer to which you do not know in advance.
5. Listen to the
witness’[s] answers.
6. Don’t quarrel with
the witness.
7. Don’t allow the
witness to repeat direct testimony.
8. Don’t permit the
witness to explain answers.
9. Don’t ask the “one
question too many.”
10. Save the
ultimate point of your cross for summation.
The core reasoning behind these ten
commandments is that if you adhere to them, you will control both the
witness and the information delivered to the jury. If you lead, you provide the
answer. If you know the answer, only the information you want the jury to hear
will be heard. Follow these commandments and you are testifying. Break them,
and suffer the consequences.
The ten commandments are
valuable today, and should be reviewed before any trial. However, rather than being
ten commandments, think of them as ten guidelines. There are times you may
vary from them without suffering and there are times you should break a
commandment.
Don’t Always Ask Leading Questions: If you ask only leading questions, you may
appear to be unfairly restricting the witness; not allowing the witness any
latitude. You can loosen the reins if the answer couldn’t make any difference.
Under certain circumstances discussed in Cross-Examination
Handbook, you can even ask that “Why” question. Also, when the witness is
fabricating, sometimes you should let go of the reins altogether and let the
witness run. When the witness is lying and the examiner can prove the lie, non-leading
questions are appropriate. In the Handbook,
we go into how to expose a liar.
If the Situation Calls for It,
Quarrel with the Witness: The demeanor of the cross-examiner and how questions are formed should
vary depending upon the type of witness. While jurors will tend to be
protective of a lay witness, who like the jurors is unaccustomed to a
courtroom, they will tolerate and even expect that the lawyer will mix it up
with a professional expert witness. The cross-examiner must adjust to the
situation.
It Isn’t Always Necessary to Know
the Answer Before Asking: Francis Wellman in the Art of
Cross-Examination put it better when he wrote, “A lawyer should never ask a witness in
cross-examination a question unless in the first place the lawyer knows what
the answer would be or in the second
place didn’t care.”
What’s That Question?: “Avoid one too many questions,”
commands Younger. Would any of us ask one too many questions if we knew which
question was one too many? What does this commandment mean?
Younger’s ten points remain presumptive guidelines, and may only be
ignored when a good reason exists.
Watch Professor Younger on Youtube.
