In trial court testimony, it is rare that the prosecutor (if the defendant testifies on his or her behalf) or a Plaintiff’s or Defendant’s attorney gets a stunning revelation on cross-examination, such as in the 1992 movie A Few Good Men where the witness on trial in a military court—while enraged on cross—admitted he ordered the “code red” which caused other soldiers to beat up a non-conforming soldier.
Equally, criminals on trial for murder don’t typically admit they killed the victim, nor does a divorcing party admit to a gambling or drinking problem. This is basic, innate, and instinctual self-preservation. However, other very common miscues on cross-examination or re-cross are just as detrimental to one’s case. This blog explores tried and true trial tips to avoid making a “fatal” or a series of “fatal” mistakes while under cross-examination.
This first tip may seem basic, but it is to make sure you understand the question before blurting out an answer. And don’t provide an answer to a question that has not been asked. With each cross-question, if there is an objection, wait until after it is ruled upon by the court before answering. Often cross-examination questions draw valid objections and do not have to be answered or clarified. This means the objection by your counsel is “sustained” by the Court.
Second, don’t guess or speculate as to an answer. Litigants who are not expert witnesses can only testify to first-hand knowledge—what he or she has seen or observed.1 This brings up the rule against hearsay, which is a statement made by someone other than the parties to each other. On cross, generally hearsay is not helpful to your case and you do not have to testify to hearsay—which is what someone else told you or observed.
Third, answer the question as accurately as possibly. Often times, a question elicits an incomplete answer, but this can be addressed by your counsel on re-direct examination. Answer the question as well as you can if you understand it.
Fourth, and most importantly, cross-examination questions are generally being asked to elicit negative information for your case in some fashion. Recognize, the human desire to explain and qualify an answer is, at times, overwhelming—resist defending your answer. Thus, short answers are almost always better than long answers. Anyone who has watched political “attack” campaign ads should understand this rule: The more you testify about to a hostile opponent, the more likely you are to make a statement that appears contradictory, which then brings the very stunning cross-examination question that points out this inconsistency and asks which time you were lying.
Your attorney may have solid reasons to deviate from these tips or general rules. However, the direct, cross, re-direct and re-cross system has been vetted in America since its founding and are the best way yet discovered to allow a judge (or jury) to assess the credibility of a person’s contentions. However, this process works best to accomplish this when these tips are applied or followed by a litigant (there are many, many more for direct examination that are beyond the scope of this blog’s coverage)
This blog post was written by attorneys at Dixon & Moseley, P.C. who handles civil and criminal cases throughout the state of Indiana. It is provided as general educational and informational material about America’s and Indiana’s legal system. It is not legal advice or a solicitation for legal services. It is an advertisement.