18/02/2026
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ON CROSS-EXAMINATION TECHNIQUES.
By Atty. Florante A. Zagada.
“A witness between two lawyers is like a fish between two cats.” - Benjamin Franklin.
This is true in cross-examination. The opposing parties may benefit from an adverse witness depending upon the kind of question being asked to the witness on the stand who is the source of relevant information of the case. It may help his/her case if he/she knows how to ask the right questions.
PURPOSES:
Cross-examination is the process of questioning an adverse party or witness. Cross-examination questions should be limited to those that reveal information necessary to support statements made in the closing argument. Cross-examination usually consists of narrow, leading questions by the attorney, which call for “yes,” “no,” or specific answers.
There are exceptions to this generalization, which are most likely to occur during supportive cross-examination. However, careful consideration must be given before open-ended questions are asked on cross-examination.
Cross-examination serves two primary purposes:
Destructive Cross.
Cross-examination can be used to discredit the testifying witness or another witness. This may be accomplished in several ways, including attacking the credibility of the witness or testimony. Most of the questions asked on cross-examination will be designed to reduce the credibility or persuasive value of the opposition’s evidence.
Supportive Cross.
Cross-examination can be used to bolster evidence that supports the cross-examiner’s theory of the case. Cross- examination may be used to independently develop favorable aspects of the case not developed on direct examination.
PREPARATION AND ORGANIZATION:
Full preparation, including knowledge about the facts, evidence, law, opponent, and witness involved, will facilitate cross-examination. All available discovery and investigation techniques should be used to find out everything there is to know about the case.
Anticipation of the opponent’s side of the case is essential. Considerations include what all the witnesses will testify to, how the other side will try the case, how both sides of the case can be attacked, and what evidence can be kept out under the rules.
SCOPE OF CROSS-EXAMINATION.
The scope of cross-examination will usually be limited to questions involving the subject of the direct examination or the credibility of a witness. Most judges will provide cross-examiners reasonable latitude to explore relevant areas affecting the case or the credibility of a witness. The outside limits of cross-examination fall within the discretion of the trial judge.
If an area of inquiry extends beyond the scope of direct and does not involve credibility, then the cross-examiner has at least two options. The attorney can request that the judge, in his or her discretion, permit a broader inquiry, or the attorney can call the witness to testify as an adverse or hostile witness during the presentation of the case in chief or during rebuttal.
Factors involved in evaluating and attacking the credibility of a witness include bias, interest, association with the other side, motive, experience, accuracy, memory, demeanor, candor, style, manner of speaking, background, and intelligence.
The following areas should be considered when weighing the credibility of the testimony:
1. Is the testimony consistent with common sense?
2. Is the testimony consistent within itself?
3. Is the testimony consistent with other testimony presented in the case?
4. Is the testimony consistent with the established facts of the case?
SHOULD YOU CROSS-EXAMINE?
The most important decision in cross-examination is whether to cross-examine. The following should be weighed in making that determination:
1. Has the witness hurt the case?
2. Is the witness important to the other side?
3. Will the jury expect cross-examination? Will it affect the case if no cross-examination is done? Was the witness credible?
4. Did the witness leave something out on direct examination that might get in if there is a cross-examination?
5. Was the omission intentionally set up as a trap for the inexperienced cross-examiner?
6. Will cross-examination unavoidably bring out information that is harmful to the case?
7. Are questions being asked only for the sake of asking questions?
8. Does the witness know more than the attorney does about the case?
9. Will the witness be very difficult to control?
10. Has the witness been deposed or given statements?
SHOULD YOU PREPARE WRITTEN QUESTIONS IN ADVANCE?
Cross-examination is most effective when questions are prepared in advance. Most prepared questions will not need to be significantly altered during the trial, but an attorney must retain flexibility to adapt to new material or inconsistencies as they arise.
The areas selected for cross should be structured in a way that clearly shows their purpose and helps the fact finder remember that point. It is advisable to begin and end the cross with strong points.
Close attention to the witnesses on direct examination may reveal signs of deception, lack of assurance, or bluffing that can be explored on cross-examination. The attention shown by the jury or judge may also be a clue.
PREPARATION AND DELIVERY:
BE CONFIDENT.
Close attention to the witnesses on direct examination may reveal signs of deception, lack of assurance, or bluffing that can be explored on cross-examination. The attention shown by the judge may also be a clue.
DO NOT REPEAT DIRECT EXAMINATION: .
Generally, any repetition of the direct examination will only emphasize the opponent’s case. However, repetition of any part of the direct that is supportive of the cross-examiner’s case may be effective, and with careful consideration, may justify the use of an open-ended question or a question that requires an explanatory response.
LEAD THE WITNESS.
Generally, any repetition of the direct examination will only emphasize the opponent’s case. However, repetition of any part of the direct that is supportive of the cross-examiner’s case may be effective, and with careful consideration, may justify the use of an open-ended question or a question that requires an explanatory response.
ASK SIMPLE, SHORT QUESTIONS.
Short, straightforward questions in simple, understandable language are most effective. Broad or confused questions may create problems of understanding for witnesses, attorneys, and the judge.
ASK FACTUAL QUESTIONS:
Questions that seek an opinion or conclusory response may permit the witness to balk or explain an answer. Questions that include fact words and accurate information will force the witness to admit the accuracy of the question.
CONTROL THE WITNESS.
The most effective way to control a witness is to ask short, factual questions. Some witnesses may need to be politely directed to respond; some witnesses may require the intervention and control of the judge.
MAINTAIN COMPOSURE.
An attorney who displays a temper or argues with a witness may irritate the court causing it to side with the witness or the opponent. In addition, such conduct makes thinking difficult and will draw objections.
ADOPT APPROPRIATE APPROACH.
Some witnesses may deserve righteous indignation, others may be attacked, but most need to be carefully and courteously led. A cross-examiner can be very effective by being politely assertive and persistent without having to attack a witness.
STOP WHEN FINISHED.
When the planned questions are asked and the desired information is obtained, the attorney should stop. It may hurt the case more by asking too many questions than by not asking enough.
CONSIDER SPECIAL CONSIDERATION
FOR CERTAIN WITNESSES.
Certain witnesses require special consideration in both the formulation and delivery of questions. These witnesses include children, relatives, spouses, experienced witnesses, investigators, experts, the aged, the handicapped, and those with communication problems. Outside resources may be used to assist in developing tactics to deal with special witnesses.
HOW TO CROSS-EXAMINE EXPERT WITNESSES.
Areas for cross-examination of experts parallel areas for lay witnesses and permit additional areas of inquiry regarding:
1. Their fees.
2. The number of times they have testified before.
3. Whether they routinely testify for the plaintiff or defendant,
4. Their failure to conduct all possible tests
5. The biased source of their information.
6. Their lack of information.
7. The existence of other possible causes or opinions
6. The use of a treatise to impeach.
It is critical for a cross examiner to develop absolute mastery of the expert’s field before examining the expert in a specific area. A well constructed concise hypothetical question may be effective cross examination if it is clear, complete, and well presented and if it elicits an opinion contrary to the testimony on direct examination.
TEN COMMANDMENTS OF CROSS-EXAMINATION.
It is helpful to keep in mind Irving Younger’s Ten Commandments for cross-examination:
1. Be brief.
2. Ask short questions and use plain words.
3. Never ask anything but a leading question.
4. Ask only questions to which you already know the answers.
5. Listen to the answer.
6. Do not quarrel with the witness.
7. Do not permit a witness on cross-examination to simply repeat what the witness said on direct examination.
8. Never permit the witness to explain anything.
9. Avoid one question too many.
10. Save it for summation. This is applicable to jury trial. You may save it when you offer your documentary evidence.
These suggestions will not be applicable to all cases and all situations. The cross-examiner who has a legitimate reason for asking such questions—whether or not that reason ‘violates” one of the ten commandments—will conduct an effective cross-examination.
BOOK REFERENCE:
The Trialbook, The Total System for the Preparation and Presentation of a Case. John O. Sonsteng, Roger S. Haydock and James J. Boyd, West Publishing Company.
