Cross-examination
Encyclopedia
In law
, cross-examination is the interrogation of a witness
called by one's opponent. It is preceded by direct examination
(in the United Kingdom
, Scotland
, Australia
, Canada
, India
and Pakistan
known as examination-in-chief) and may be followed by a redirect
(re-examination in England
, Scotland
, Australia
, Canada
, India
, Hong Kong
, and Pakistan
).
, a cross-examining attorney
is typically not permitted to ask questions that do not pertain to the testimony offered during direct examination, but most state courts do permit a lawyer to cross-examine a witness on matters not raised during direct examination. Similarly, courts in England, Australia, and Canada allow a cross-examiner to exceed the scope of direct examination.
Since a witness called by the opposing party is presumed to be hostile
, cross-examination does permit leading question
s. A witness called by the direct examiner, on the other hand, may only be treated as hostile by that examiner after being permitted to do so by the judge, at the request of that examiner and as a result of the witness being openly antagonistic and/or prejudiced against the opposing party.
The main purposes of cross-examination are to elicit favorable facts from the witness, or to impeach the credibility of the testifying witness to lessen the weight of unfavorable testimony. Cross-examination frequently produces critical evidence in trial
s, especially if a witness contradicts previous testimony. The advocate Edward Marshall-Hall
built his career on cross-examination that often involved histrionic outbursts designed to sway jurors. Most experienced and skilled cross-examiners however, refrain from caustic or abrasive cross-examination so as to avoid alienating jurors. John Mortimer
, Queen's Counsel
, observed that "cross-examination" was not the art of examining crossly. Indeed the good cross-examiner gets a witness to assert to a series of linked propositions culminating in one that undermines that witnesses' evidence rather than pursuing an antagonistic approach.
because of the impact it has on the opinions of the judge and jury.
Few lawyers practice trial law or complex litigation and typically refer such cases to those who have the time, resources and experience to handle a complex trial and the commitment involved to complete a trial successfully. Few attorneys get the practice necessary to develop the techniques needed to do an effective job cross-examining a witness. It is sometimes referred to as an art form, because of the need for an attorney to know precisely how to elicit the testimony from the opposing witness that will help, not hinder their client's case. Typically a cross-examiner must not only be effective at getting the witness
to reveal the truth, but in most cases to reveal confusion as to the facts such as time, dates, people, places, wording etc. More often than not a cross-examiner will also attempt to undermine the credibility of a witness if he will not be perceived to be a bully (such as discrediting a very elderly person or young child). The cross-examiner often needs to discredit a potentially biased or damaging witness in the eyes of the jury without appearing to be doing so in an unfair way. Typically the cross-examiner must appear friendly, talk softly and sincerely to relax the guarded witness. They typically begin repeating similar basic questions in a variety of different ways to get different responses, which will then be used against the witness as misstatements of fact later when the attorney wants to make their point. If it is too obvious the questions are too clearly repetitive and making the witness nervous, the other attorney may accuse the cross examiner of badgering the witness. There is a fine line between badgering and getting the witness to restate facts differently that is typically pursued. The less the witness says, and the slower the witness speaks, the more control they can maintain under the pressure of a crafty opponent. The key for a witness is to understand the facts that they believe to be the case and not add additional thoughts to those facts, less they be used to undermine the testimony. Sticking to the brief known facts is key for the witness, making it difficult for the cross-examiner to make the witness appear confused, biased or deceitful. The cross examiner will assume the witness has been told that and begin asking supporting questions about where the witness was, what time it was, what the witness saw, what they said.. and sooner or later upon asking again the witness may use a different word that will give the cross-examiner a chance to ask the question again doubtfully and pointedly implying contradiction. The witness will try typically to explain and clarify, which sometimes reveals weakness in the witness's statements of fact. Other times the witness is just being truthful but undermined for the purpose of casting doubt to the jury and or judge.
There is a measure of drama that cross-examination adds to any trial because of the challenging of the statements made by a witness. In the 1903 book titled The Art of Cross-Examination by Francis L. Wellmann much effort is devoted to highlighting components of cross-examination and the impact on trials of the past century. An example of an inflammtory way a question will be asked by a cross-examiner to a witness he was trying to undermine would be .. " What is your recollection toDAY?" implying it was stated differently yesterday. Simply the accent of syllables can leave a bewildered jury believing they must put their guard up with a witness–or in some cases the cross-examiner if they are not careful. The book freely uses accenting in its dialogue to give the reader such insight as to how cross-examiners rattle witnesses to obtain their desired effect for the jury.
they will repeat any admissions made by witnesses that favor their case. Indeed, in the United States, cross-examination is seen as a core part of the entire adversarial system
of justice, in that it "is the principal means by which the believability of a witness and the truth of his testimony are tested." Another key component affecting a trial outcome is the jury selection
, in which attorneys will attempt to include jurors from whom they feel they can get a favorable response or at the least unbiased fair decision. So while there are many factors effecting the outcome of a trial, the cross-examination of a witness will often have an impact on an open minded unbiased jury searching for the certainty of facts with which to base their decision upon.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, cross-examination is the interrogation of a witness
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
called by one's opponent. It is preceded by direct examination
Direct examination
The Direct Examination or Examination-in-Chief is one stage in the process of adducing evidence from witnesses in a court of law. Direct examination is the questioning of a witness by the party who called him or her, in a trial...
(in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
and Pakistan
Pakistan
Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
known as examination-in-chief) and may be followed by a redirect
Redirect examination
Redirect examination is the trial process by which the party who offered the witness has a chance to explain or otherwise qualify any damaging or accusing testimony brought out by the opponent during cross-examination...
(re-examination in England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
, Hong Kong
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
, and Pakistan
Pakistan
Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
).
Variations by Jurisdiction
In the United States federal courtsUnited States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
, a cross-examining attorney
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
is typically not permitted to ask questions that do not pertain to the testimony offered during direct examination, but most state courts do permit a lawyer to cross-examine a witness on matters not raised during direct examination. Similarly, courts in England, Australia, and Canada allow a cross-examiner to exceed the scope of direct examination.
Since a witness called by the opposing party is presumed to be hostile
Hostile witness
A hostile witness is a witness in a trial who testifies for the opposing party or a witness who offers adverse testimony to the calling party during direct examination.A witness called by the opposing party is presumed hostile...
, cross-examination does permit leading question
Leading question
In common law systems that rely on testimony by witnesses, a leading question or suggestive interrogation is a question that suggests the answer or contains the information the examiner is looking for. For example, this question is leading:...
s. A witness called by the direct examiner, on the other hand, may only be treated as hostile by that examiner after being permitted to do so by the judge, at the request of that examiner and as a result of the witness being openly antagonistic and/or prejudiced against the opposing party.
The main purposes of cross-examination are to elicit favorable facts from the witness, or to impeach the credibility of the testifying witness to lessen the weight of unfavorable testimony. Cross-examination frequently produces critical evidence in trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
s, especially if a witness contradicts previous testimony. The advocate Edward Marshall-Hall
Edward Marshall-Hall
Sir Edward Marshall Hall, KC, was an English barrister who had a formidable reputation as an orator...
built his career on cross-examination that often involved histrionic outbursts designed to sway jurors. Most experienced and skilled cross-examiners however, refrain from caustic or abrasive cross-examination so as to avoid alienating jurors. John Mortimer
John Mortimer
Sir John Clifford Mortimer, CBE, QC was a British barrister, dramatist, screenwriter and author.-Early life:...
, Queen's Counsel
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
, observed that "cross-examination" was not the art of examining crossly. Indeed the good cross-examiner gets a witness to assert to a series of linked propositions culminating in one that undermines that witnesses' evidence rather than pursuing an antagonistic approach.
The Art of Cross-Examination
Cross-examination is considered an essential component of a jury trialJury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
because of the impact it has on the opinions of the judge and jury.
Few lawyers practice trial law or complex litigation and typically refer such cases to those who have the time, resources and experience to handle a complex trial and the commitment involved to complete a trial successfully. Few attorneys get the practice necessary to develop the techniques needed to do an effective job cross-examining a witness. It is sometimes referred to as an art form, because of the need for an attorney to know precisely how to elicit the testimony from the opposing witness that will help, not hinder their client's case. Typically a cross-examiner must not only be effective at getting the witness
Witness
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness...
to reveal the truth, but in most cases to reveal confusion as to the facts such as time, dates, people, places, wording etc. More often than not a cross-examiner will also attempt to undermine the credibility of a witness if he will not be perceived to be a bully (such as discrediting a very elderly person or young child). The cross-examiner often needs to discredit a potentially biased or damaging witness in the eyes of the jury without appearing to be doing so in an unfair way. Typically the cross-examiner must appear friendly, talk softly and sincerely to relax the guarded witness. They typically begin repeating similar basic questions in a variety of different ways to get different responses, which will then be used against the witness as misstatements of fact later when the attorney wants to make their point. If it is too obvious the questions are too clearly repetitive and making the witness nervous, the other attorney may accuse the cross examiner of badgering the witness. There is a fine line between badgering and getting the witness to restate facts differently that is typically pursued. The less the witness says, and the slower the witness speaks, the more control they can maintain under the pressure of a crafty opponent. The key for a witness is to understand the facts that they believe to be the case and not add additional thoughts to those facts, less they be used to undermine the testimony. Sticking to the brief known facts is key for the witness, making it difficult for the cross-examiner to make the witness appear confused, biased or deceitful. The cross examiner will assume the witness has been told that and begin asking supporting questions about where the witness was, what time it was, what the witness saw, what they said.. and sooner or later upon asking again the witness may use a different word that will give the cross-examiner a chance to ask the question again doubtfully and pointedly implying contradiction. The witness will try typically to explain and clarify, which sometimes reveals weakness in the witness's statements of fact. Other times the witness is just being truthful but undermined for the purpose of casting doubt to the jury and or judge.
There is a measure of drama that cross-examination adds to any trial because of the challenging of the statements made by a witness. In the 1903 book titled The Art of Cross-Examination by Francis L. Wellmann much effort is devoted to highlighting components of cross-examination and the impact on trials of the past century. An example of an inflammtory way a question will be asked by a cross-examiner to a witness he was trying to undermine would be .. " What is your recollection toDAY?" implying it was stated differently yesterday. Simply the accent of syllables can leave a bewildered jury believing they must put their guard up with a witness–or in some cases the cross-examiner if they are not careful. The book freely uses accenting in its dialogue to give the reader such insight as to how cross-examiners rattle witnesses to obtain their desired effect for the jury.
Affecting The Outcome of Jury Trials
Cross-examination is a key component in a trial. The opinions by a jury or judge are often changed during cross examination if doubt is cast on the witness. In other times a credible witness affirms the belief in their original statements or in some cases enhances the judges or juries belief. Though the closing argument is often considered the deciding moment of a trial, effective cross-examination wins trials. Typically during an attorney's closing argumentClosing argument
A closing argument, summation, or summing up is the concluding statement of each party's counsel reiterating the important arguments for the trier of fact, often the jury, in a court case. A closing argument occurs after the presentation of evidence...
they will repeat any admissions made by witnesses that favor their case. Indeed, in the United States, cross-examination is seen as a core part of the entire adversarial system
Adversarial system
The adversarial system is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case...
of justice, in that it "is the principal means by which the believability of a witness and the truth of his testimony are tested." Another key component affecting a trial outcome is the jury selection
Jury selection
Jury selection are many methods used to choose the people who will serve on a trial jury. The jury pool is first selected from among the community using a reasonably random method. The prospective jurors are then questioned in court by the judge and/or attorneys...
, in which attorneys will attempt to include jurors from whom they feel they can get a favorable response or at the least unbiased fair decision. So while there are many factors effecting the outcome of a trial, the cross-examination of a witness will often have an impact on an open minded unbiased jury searching for the certainty of facts with which to base their decision upon.