Cross-Examination to Fit the Witness

 

Cross-examination should vary depending on the type of witness you are examining.  British barrister David Paul Jones’s Golden Rules of Cross-Examination, which he wrote a century and a half ago, expressed this idea as follows:  

“Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.”

We discuss strategies and techniques for adapting the cross to the witness in Cross-Examination Handbook. What follows are a few of the techniques that can be employed based upon the type of witness you are examining.

EVADER

The evader will not give a straight answer when it's harmful and will run on introducing as much damaging information as possible.  To gain control, these techniques can be used: repeat the question; have the court reporter read the question back to the witness; ask the witness to repeat the question; ask whether the witness understood the question and whether some impediment prevents the witness from answering, and if necessary, if the cross-examiner believes the court will help, ask the judge to direct the witness to answer.

BRAGGART

When the witness is a talker who is arrogant and wants to lecture, keep the witness going and allow the witness to self destruct.  Courtroom demonstrations by a boaster can be fun.

LIAR

Examine the liar on details and encourage the liar to invent a few.  Show improbabilities and try to put the witness on the horns of a dilemma.

FORGETTER

Attempt to get the witness to repeat "I can't recall" as often as possible.  Count them.  It is ideal if the witness remembered on direct but not cross.

THINKER

If the witness is slow to answer, she will leave the impression of needing time because she is unsure or because she is lying.  Do not push the witness.  Argue a little but overall be courteous and calm.