Wednesday, December 28, 2022

3 Types of Cross-Examination Questions


John Travolta - Civil Action

There are three types of questions that may be asked on cross-examination. The first one—the INTERROGATORY question shouldn’t ever be asked unless you have had decades of experience as a trial lawyer and know exactly what you are doing. Particularly, never ask a Why question. Witness this scene from A Civil Action.

The second type of question that may be asked on cross, is the CLOSE-ENDED type and this is exactly what you want to use on cross because it is your turn to testify, not the witness’s. Here’s an example borrowed from My Cousin Vinny: 

When the two defendants went into store, you were cooking
Grits for breakfast 
How cook your grits 
Not instant grits
Took you twenty minutes to cook grits

The third and final type of cross-examination question is the ACCUSATORY QUESTION. This is used when you have caught the witness in a trap and want to drive home the point. Also, it’s an example of asking a Why question when you know you know the truthful answer or can prove the truth if the witness lies. Watch how it worked in A Few Good Men:


Tuesday, December 20, 2022

Cross-Examining the Unbelievable Witness

When the CONTENT of your cross-examination is the IMPEACHMENT of the witness, the techniques you use to accomplish the impeachment are critical. 

Prior posts here have been devoted to great cross-examination demolitions—a veritable wrecking crew of impeachments. This is a list of the impeachment wrecking crew, and we have covered them in prior posts:

      1. Unreliability of the Observation

      2. Faulty Report

      3. Unbelievable Reporter

Here we turn to how through cross-examination to show that the witness is not to be believed. Evidence rules come into play.

First, Evidence Rule 609 governs impeachment with a prior conviction. Rule 609 states: 

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) it is offered in a criminal case;

(2) the adjudication was of a witness other than the defendant;

(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4) admitting the evidence is necessary to fairly determine guilt or innocence.

(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Above is an actual chart showing the government’s witnesses’ prior convictions. Pistol whipping a priest is pretty serious.

Second, cross-examination can impeach a witness by showing the witness’s prior untruthfulness. Here Evidence Rule 608 comes into play. Rule 608 provides:

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Third, if a character witness is called to testify, cross-examination to show the witness’s untruthfulness may be permitted under the evidence rules. Evidence Rule 608 (above) indicates when that impeachment may be pursued. Rule 404(a) also provides the grounds for such impeachment, as follows: 

(a) Character Evidence.

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; . . .

Wednesday, December 14, 2022

How to Impeach with a Prior Inconsistent Statement


In prior posts, we have spelled out how to demolish a witness by showing that the witness’s Report is Faulty (the report is Improbable because it is absurd, lacks common sense or can be contradicted. Here we concentrate on impeaching a witness with a prior inconsistent statement. 

Evidence rule Rule 613—Prior Statements of a Witnesses governs the methodology for cross-examining a witness regarding a prior inconsistent statement and the use of extrinsic evidence to contradict the witness, as follows:
(a) Examining Witness Concerning Prior Statement. 
In the examination of a witness concerning a prior statement made by the witness, whether written or not, the court may require that the statement be shown or its contents disclosed to the witness at that time, and on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. 
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2). 


   1. Avoid nitpicking – nothing worse than a nitpicking cross  
  2. Recognize the inconsistency – listen carefully to the witness
  3. Retrieve the prior statement – be prepared
  4. Repeat the testimony – pound home the current testimony
  5. Reinforce the truthful statement – show the prior statement was more likely to be truthful (e.g., made closer in time to the event and under circumstance making it likely the witness was truthful
  6. Reference the prior statement
  7. Resonate with the jury – pause, then slowly read the statement 
  8. Read and/or display the statement
  9. Refute the witness’ denial – use extrinsic evidence.

See Chapter 7 in Cross-Examination Handbook for a more extensive discussion of how to impeach with a prior inconsistent statement.

Now, watch this clip from the great Agatha Christie story Witness for the Prosecution to see how to impeach with a prior inconsistent statement – particularly how to Resonate with the Jury.

Hope you enjoyed that.

Wednesday, December 7, 2022

Cross-Examination: How to Impeach by Contradiction


              OJ Simpson and his legal team

We are now examining the second impeachment wrecking crew—The Faulty Report. There are three techniques you can employ to show the witness’s report is improbable:

1. Reduction to the Absurd Technique

2. Common Sense Technique

3. Contradictory Conduct Technique

In the prior posts the first two techniques were discussed and illustrated. Here we cover the Contradictory Conduct Technique that can be applied to show that the witness’s testimony is improbable. 

The OJ Simpson trial provides a good example of how to employ this contradiction technique. A portion of F. Lee Bailey’s cross-examination of the lead detective Mark Furhman went as follows:

Bailey: Q:  Do you use the word “nigger” in describing people?

Ms. Clark:  Same objection.

The Court:  Presently?

Bailey:  Yes.

The Court:  Overruled.

Furhman: A:  No, Sir.

Bailey:  Q:  Have you used that word in the past ten years?

A:  Not that I recall.  No.

Q:  You mean if you called someone a nigger you have forgotten it?

A:  I’m not sure I can answer the question the way you phrased it, Sir.

Q: You have difficulty understanding the question?

A:  Yes.

Q:  I will rephrase it.  I want you to assume that perhaps at some time, since 1985 or 6, you addressed a member of the African American race as a nigger.  Is it possible that you have forgotten that act on your part?

A:  No, it is not possible. 

Q:  Are you therefore saying that you have not used that word in the past ten years, detective Fuhrman?

A:  Yes, that is what I’m saying.

Q:  And you say under oath that you have not addressed any black person as a nigger or spoken about black people as niggers in the past ten years, detective Furhman?

A:  That’s what I’m saying, Sir.

Mark Furhman

The defense called witnesses to say he used the word, and the defense produced an audio tape in which he said the word. Furhman was later convicted of perjury and sentenced to three years probation – now lives in Idaho.

A limitation on how you may contradict a witness is that you may not pit one witness against another—it’s called “pitting”.  Here is a further discussion of pitting.