Perhaps everyone has observed a television legal show where a witness “cracks” on cross-examination and admits to a crime;1 or in a civil case, the point a party or witness makes some other admission or statement when cross-examined by the opposing party’s attorney that ends the case. An example is when a witness or party is confronted with an incriminating email on cross-examination showing he or she knew some tortious act was occurring, but to that point had denied this knowledge–until admitting it on cross-examination. This blog covers the general background of answers on cross-examination and provides five typical answers to most cross-examination questions.
As a general rule of human nature, we all like to talk and believe we can explain most situations. However, the way trial testimony works, being “narrative” on cross-examination is objectionable (you may not be permitted testify in this way) and/or recipe for disaster because the trial process anticipated cross-examination to point out inconsistencies or contradictions in your testimony. Therefore, the wordier your answer, the more chance you make an apparent or actual contradiction. Extraneous words on cross are like asking that extra bullets be fired at you. This is because trial testimony is different from the ebb and flow of normal human conversation. So, the golden rule on cross is “more (words) is less (risk)”.
Typically, on cross-examination, litigants and witnesses “talk” as they do in a normal day and provide answers that are based on life experiences and inferences, not what they have observed and captured by their senses. For example, it would be normal in conversation to tell someone it is hot outside because he or she has observed someone “sweating” outside and through a window. However, unless you were outside and/or looked at a thermometer, this is an inference—it is hot when someone is sweating. In fact, the source of perceived perspiration may well have been water splashed on someone’s face or tear.
Thus, most litigants and lay witnesses (not experts) ordinarily should limit their testimony to personal observations and knowledge, not on inferences, speculation or based on the hearsay of another person. In such a case, one of three answers typically are responsive to the cross-examination question: “yes”, “no”, “I don’t know”. In addition, a litigation or witness under cross should not answer unless they are sure of the question being asked. Normally, if this is the case your attorney or the party for whom you are a witness will object to the question as “calling for speculation” or that’s a compound question (where a single answer is not sufficient to answer the question). In this case, you should not answer until the court overrules (you can testify) or sustains (you don’t have to answer) the objection.
Despite limiting your answers to a simple reply, a party or litigant cannot ordinarily refuse to answer a question because they don’t want to answer the question. The only exception is where the answer might result in admitting to a criminal act. In this case, a witness in a civil proceeding of any type may assert his or her Fifth Amendment Privilege and not be compelled to answer. However, unlike criminal matter, “taking the Fifth” may be used against a party on the issues before the Court.
Lastly, all rules have exceptions, which is why sometimes a party or litigant may be “mooted” by an attorney in practicing answering the question on hostile cross-examination. The answers that will ultimately come through this process is a precise answer to the cross question, nothing more or less. However, all rules have exceptions, such as where the cross-examination question will help the case for the party or the party’s witness; in this situation, being narrative and talking through your answer, if allowed, may be the best legal strategy.
This is a primer on testifying under hostile cross-examination. Typically, on cross-examination the “more is less” in the answer as making too many statements creates the situation (as it does in everyone’s normal conversation) to appear to make a contradictory statement. This blog is written by attorneys at Dixon & Moseley, P.C. who handle a wide array of civil and criminal cases throughout Indiana. This blog is intended to provide general information and is not intended as legal advice. It is an advertisement.