13/04/2026
A GUIDE TO SUCCESSFUL CROSS-EXAMINATION.
By Atty. Florante A. Zagada
There are three most important aspects of conducting cross-examination: control, control, and control of the witness, the evidence, and the entire scenario in the courtroom.
Further, the rules of primacy and recency. The said rules, respectively, means that the judge will believe the credible testimony they hear first and remember the longest that which they hear last. Therefore, it is essential in planning cross-examination to ensure a strong opening and finish on the strongest point possible.
TECHNIQUE IS CRUCIAL.
Technique in cross-examination is crucial. Open-ended questions such as โwhyโ or "please explain,โ which allow the witness to gain control of the answer, must be avoided.
Reiteration of the witness's testimony on direct is disastrous and should also be avoided. Repetition of each answer as a preface to the next question breaks the rhythm of the cross, and you must be careful not to fall into such habits as beginning each question with "Now, let me ask you this question . . . ."
THE RULE OF PRIMACY.
Use a strong opening consistent with the rule of primacy. You should seek a strong opening in your cross-examination; that is, you should begin cross-examination with a point on which you are certain you can score.
If there is a line of questioning with which you can obtain several agreements from the witness to bolster your case, pursue this line before discrediting or impeaching the witness. We call this a concession technique.
BE BRIEF.
Brevity in cross-examination is important. Ask no unimportant questions on cross-examination. A question that does not advance your case hinders it. If possible, limit your points of examination to a maximum of three strong points.
As cross-examination begins, you have the renewed attention of the judge, who is hoping for an interesting confrontation with the adverse witness. You must retain that attention by asking poignant, significant, and relevant questions, and by scoring points consistently during the examination.
A cross-examiner is only as good as her last series of questions. The judge will not remember a great deal of the testimony of any one witness. Therefore, the cross-examiner should, if possible, limit cross to those few points or areas that are critical in the issue of the case.
THE RULE ON RECENCY.
This principle says that the judge will remember longest that which they hear last. You should end each cross-examination on a very strong point. However, it is also important to finish the case as a whole with very significant points along the way. Insignificant testimony which are not very significant yo the case must not be tackled anymore. It may only dilute or diminish the more important ones. Insignificant and minor inconsistency maybe ignored.
You must be constantly aware not only of the content of cross-examination but also of the timing of the questioning.
MAINTAIN CONTROL OF THE WITNESS.
Use leading questions here. The leading question is the primary weapon in the arsenal with which the cross-examiner controls the witness. Since witness control is the sine qua non of successful cross-examination, effective use of the leading question is a vital skill. The leading question allows you to couch each question in terms of your theory of the lawsuit and, when properly framed, limits the response of the witness.
However, you have to avoid overusing leading questions. If you use too many, the judge may get the impression that you are testifying rather than the witness.
Also avoid the appearance that, because you will not allow the witness to fully answer the question, the witness is being treated unfairly. Explain to the witness that his counsel can permit him to fully explain his answer during redirect examination but that it is important on cross-examination to follow the rules and simply affirm or deny your questions.
ELICIT โYESโ or โNOโ ANSWERS.
The leading question contains within itself the answer that the examiner seeks, thus requiring only a ratification or confirmation from the witness. Leading questions should be couched in terms of the examiner's theory of the lawsuit so that an affirmative answer advances the plaintiff's cause.
For example, the leading question, " Mr. Reyes, as you approached the intersection, the signal light was red, correct?โ contains the answer that the questioner seeks, that the light was red. The witness needs to answer only yes or no with no necessity to expound further on the answer.
More significantly, the question is also couched in terms of the plaintiff's theory of the lawsuit, that the witness was negligent in running a red light and in causing the accident and resulting injuries to the plaintiff.
Skillful phrasing of leading questions, carefully couched in terms of the plaintiff's theory of the case, is essential to several aspects of cross-examination: the witness is limited to yes or no answers, the testimony of the witness is controlled through avoidance of lengthy answers, the plaintiff's case is advanced through affirmative responses to leading questions, and tightly controlled leading questions are of extreme importance in maintaining control while discrediting or impeaching a witness.
AVOID OPEN-ENDED QUESTIONS.
The open-ended question is one that allows the witness to explain fully and often at length the answer to the examiner's question. The classic example of the catastrophically open-ended question is asking an expert,
โHow can you possibly have arrived at such an opinion?" In answering this question, the expert may testify at length as to every factor that played a part in forming the opinion. Such a recitation can only be disastrous to the cross-examiner's case.
While there are no universal rules of witness examination, inquiries such as "why," "how," or โplease explainโ are almost invariably to be avoided.
ALLOW RE-NARRATION OR REPETITION RARELY.
You may permit the witness to re-narrate or repeat an answer given on direct when you are trying to demonstrate that the witness has memorized the story and will tell the same story two, three, or more times in precisely the same words. Normally, a witness will not repeat a story verbatim unless it is memorized. However, few counsel will leave their witnesses open to this type of cross-examination.
Another situation in which a witness may be encouraged on cross-examination to re-narrate is when the witness has told a story on direct that is so vulnerable that it can be totally destroyed. It must be emphasized, however, that such an approach is rarely indicated or justified.
LIMIT TALKATIVE OR EVASIVE WITNESS.
The cross-examiner frequently encounters witnesses who will not respond yes or no to leading questions but either insist on explaining every answer or evade answering the questions. Dealing with such witnesses creates problems, and there are two basic approaches to handling them.
First, the cross-examiner can seek to enlist the aid of the judge in limiting the talkativeness or evasiveness of the witness. Ask the judge to admonish the witness not to explain but to answer only yes or no.
But faced with an unresponsive answer, the cross examiner may move to strike the answer and request the court to warn the witness to respond directly to the question. When examining a witness who seeks to explain every answer, you may request the court to instruct the witness to limit answers during cross-examination to responses to the questions posed by the examiner and to further instruct that defense counsel, during redirect examination, will have a chance to bring out explanations.
The second approach is to allow the witness to duck, dodge, and explain, within certain limits. If the witness gives an unresponsive answer, ask the question again; if the answer is again unresponsive, ask the same question a third time. Then ask the โexplainerโ to limit answers to yes or no; explain that the witness will have a chance during redirect examination to explain the answers.
Those examiners who do not seek to enlist the aid of the court in dealing with the problem witness and allow the witness to be unresponsive or evasive believe that the judge will be able to detect the witness's lack of cooperation and candor and will draw their own adverse conclusions about the witness.
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