Chapter 9: Cross Examination

Cross-examination uses leading questions to develop supportive evidence that buttresses the advocate's case and to discredit the opposing party's witnesses through impeachment — strengthening the advocate's case and revealing damaging information that weakens the opposition's positions.

Chapter 9

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9.1 Introduction

A. Supportive Cross-Examination

B. Discrediting Cross-Examination

C. Challenges of Cross

D. Risks of Cross

E. Good Faith Basis

F. Cross-Examination Myths

9.2 Preparation

A. Planning the Cross

B. Why Cross-Examine?

C. Full and Fair Opportunity

D. Scope of Cross

E. Topics and Questions

F. Structure of Cross

G. Order of Questions

H. Concluding Queries

I. Recross Examination

J. Prime Location

K. Proper Demeanor

9.3 Form and Content

A. Effective Formats

B. Form of Questions

C. Content of Questions

9.4 Controlling Cross-Examination

A. Seek Agreements with Witnesses

B. Control Responses and Witnesses

C. Techniques to Control Witnesses

D. Ask Safe Questions

9.5 Questions for Specific Witnesses

A. Witnesses with Communication Issues

B. The Evasive Witness

C. The Reputation Witness

9.6 Discrediting Cross-Examination

A. Implausibility, Improbability, Impossibility

B. Establishing Inconsistencies

9.7 Impeachment Strategies

A. Impeachment Evidence

B. Relying on Extrinsic Evidence

C. Responding to Impeachment

9.8 Areas of Impeachment

A. Interest, Bias or Prejudice

B. Competency Deficiencies

C. Inadequate Observation/Lack of Perception

D. Poor Recollection/Lack of Memory

E. Inconsistent Conduct

F. Criminal Record

G. Untruthfulness

H. Refreshing Recollection

9.9 Impeachment with Prior Inconsistent Statements

A. Impeachment Preparation

B. Stages of Impeachment

C. Prior Inconsistent Statements

D. Introducing Prior Statements

9.10 Types of Prior Inconsistent Statements

A. Statements Under Oath

B. Discovery Responses

C. Composed Statements

D. Verbal Statements

E. Impeachment by Omission

9.11 Completion of Cross-Examination

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REFLECTING ON ADVOCACY

Bromidic though it may sound, some questions don’t have answers, which is a terribly difficult lesson to learn.

—Katharine Graham

A lie may live and even wiggle after it has been spiked, but not beyond the sundown.

—Heywood Campbell Broun

Introduction

Cross-examination is the method of examining an opposing party or adverse witness. An effective cross reveals information that supports the advocate’s case and that weakens the opposing party’s case. Cross-examination is most effective when conducted using leading questions, in contrast to non-leading questions used when conducting direct examination.

The primary purposes of cross-examination seek to obtain evidence necessary to prove claims or defenses and to support statements made in summation. There are two fundamental types of cross-examination:

• Supportive cross. Supportive cross-examination develops evidence buttressing the claims or defenses. These questions can elicit new favorable information, bolster positive testimony, and enhance constructive exhibits.
• Discrediting cross. Discrediting cross-examination discredits the testifying witness, or another witness or the opponent’s case. This may be accomplished by challenging the credibility of the witness or testimony and by reducing the evidentiary and persuasive value of the opposition’s evidence through impeachment.

A. Supportive Cross-Examination

The following queries assist in formulating supportive, helpful cross-examination responses from a witness:

• What statements in summation rely upon the testimony of this witness? If a witness is the only source of helpful information, that evidence must be elicited during cross-examination. For example, an adverse witness who is the exclusive source of an important date needs to be provide that information.
• What helpful information does the witness know? This positive information ought to be elicited through cross-examination. For example, if a witness has personal knowledge of the identity of individuals present during a conversation, the individual can identify those persons.

Can the witness establish the foundation for a relevant exhibit? An adverse witness may be effective in laying a foundation for a document. best

• What admissions has the witness made? If a person has made written, electronic, or oral statements, these admissions must be reviewed to determine which of them might be helpful to the cross-examiner’s case. For example, in a breach of contract case, discovery may produce a statement that the opposing party failed to make complete contract payments on time. One way to introduce this admission is to ask leading questions of the opposing party on cross.
• What information does the person have to corroborate favorable evidence? An opposing witness may have information to support a favorable fact established by another witness. For example, an opposing expert witness may support the scientific methods relied on by another expert who reached a contrary opinion.
• Can the individual bolster or rehabilitate the credibility of favorable witnesses? In addition to introducing proof of a fact through an adverse witness, testimony of that person corroborating the testimony of a favorable witness may increase the credibility of the favorable witness. For example, if the testimony of a witness spouse testifying in support of the plaintiff spouse can be corroborated by the opposing defendant, the value of the testimony is enhanced.
• What portions of the direct examination were helpful? Helpful testimony from direct may be highlighted and expanded on cross-examination. For example, a witness called by a plaintiff who received defamatory photos of the plaintiff forwarded by the defendant from a photo sharing app can be asked questions by the defense on cross to establish how the photos were inadvertently sent when plaintiff posted them.

There are factors common to typical disputes that may be established to enhance supportive cross-examination. A successful theme in many cases revolves around *accountability—*which party is legally most accountable for causing the dispute or offense. Well-designed questions can highlight facts that corroborate or enhance this theme.

B. Discrediting Cross-Examination

The purpose of discrediting cross-examination is to discredit evidence or impeach a witness by demonstrating that the testimony developed on direct examination and the evidence introduced by the opposing party is wrong or ought not to be relied on or believed. Leading questions can establish or suggest that the evidence is unreasonable, inaccurate, incomplete, inconsistent, implausible, improbable, impossible, or unbelievable. Discrediting cross undermines the opposing case and reduces the credibility of the opponent’s witnesses through impeachment.^[1]^

It is unlikely that the rival case will be wholly discredited after cross-examination, and it’s also unlikely that the testimony of a witness will be entirely discredited, although those may be goals. It is more likely that the advocate’s case will be strengthened and that damaging information will be revealed which collectively weaken the opposing party’s positions. See § 9.6.

A common discrediting theme for cross-examination focuses on the irresponsibility of the opposing party or adverse witness. Carefully crafted questions that establish the nature of the misconduct or wrongdoing can elaborate and emphasize this discrediting evidence.

C. Challenges of Cross

Challenges arise on cross-examination because witnesses are adverse, hostile, or uncooperative. The advocate seeks to elicit helpful information from an opposing witness who wants to or tries to harm the case of the advocate. Cross-examination questions are designed to cause individuals to agree with facts or conclusions they want to deny, or disagree with, or ignore. The goal is to have witnesses admit facts or opinions that hurt their side and help the case of the cross-examining party.

Witnesses on cross-examination are usually aware of these efforts by advocates. Opposing counsel has prepared their witnesses for direct and has also prepared them regarding the likely or exact cross-examination topics and questions that will be asked. Unprepared witnesses may be surprised at some cross-examination questions, but well-prepared witnesses will likely understand what is being asked and why.

This is the major challenge of cross: how to obtain helpful responses from a prepared witness who doesn’t want to provide such evidence and how to do so effectively, sensibly, and reasonably, without badgering the witness and diminishing or losing the effect of the favorable answers?

A fundamental question underlying this challenge is: why would witnesses agree with questions they don’t want to agree with? The answer can be found in basic human behavior: witnesses agree when they have to or when they want to. While they may prefer to resist answering cross questions, they must. Several reasons exist to compel them to do so.

First, the answer may well be the truth. Witnesses agree because it is the truth and they have taken an oath to tell the truth, however unpleasant.

Secondly, they are compelled to agree because of their previous statements or actions. They said or did so in the past and they have to admit consistency.

Thirdly, they want to agree because it makes them look or sound good. Questions that flatter them or make them appear to have done something well will cause them to agree.

Fourthly, they prefer to agree to avoid looking unreasonable or testifying irresponsibly. They cannot reasonably or fairly deny, disagree with, or ignore the content of factually accurate questions.

Fifthly, well-composed leading questions containing evidentiary answers compel them to have to respond agreeably or even reluctantly.

The tactics and techniques described in this Chapter explain these and other effective ways to meet the challenges of cross-examination. LLMs can assist in identifying areas for cross and potential supportive and discrediting questions. See § 1.1(C).

D. Risks of Cross

Cross-examination needs to be conducted with realistic expectations and an understanding of the inherent risks. Effective cross-examination can produce significant valuable evidence, although it may not necessarily “win” a case or result in a confession. Risky questions that have little hope of obtaining helpful information may be asked out of desperation because the cross is not well conceived. These precarious hazards can be reduced or eliminated by crafting evidentiary based concise leading questions that contain and suggest the answers, that require the witness to agree, and that control the responses. Perilous risks increase by asking bad or poorly phrased questions that are ineffective or objectionable, such as:

• Non-leading questions, such as: “What do you really mean by that?”
• Narrative questions, such as: “Tell us what you actually posted on your social media account that day.”
• Open ended questions that permit a witness to explain, such as: “How can you possibly explain your pocket posting?”
• Why questions, such as: “Why did you delete that link?”
• Disbelieving or desperate questions, such as: “You don’t expect us to believe you mistakenly retweeted, do you?”
• Repetitive or careless questions, such as: “Now, on direct examination you admitted tagging Photo Exhibit No.1 . . . is that what you actually meant to say?”
• Curiosity or despairing questions with little or no hope for a helpful answer, such as: “Are you sure, I was rather hoping you would say the opposite about that clever hashtag?”
• Lengthy questions, which consist of subordinate clauses and passive voice, that confuse the witness and decision maker.

Resisting the urge to ask dangerous and appalling questions and carefully preparing well-designed questions prevent advocates from making egregious mistakes. Should you think about asking such awful questions or hear yourself starting to ask . . . stop, stop, stop.

E. Good Faith Basis

An advocate must have a good faith basis for cross-examination questions. An attorney cannot ask a question on cross unless the attorney has proof of the underlying facts. This reflects a central ethical and righteous norm: a lawyer cannot make things up.

Counsel must have a source of reliable evidence, such as a witness or document, that supports a statement made on cross. A cross-examiner cannot invent, contrive, or fabricate events. For example, a lawyer cannot ask a student witness “When did you stop cheating on your college exams?” unless the attorney has proof of such facts. This question suggests that the witness had been regularly cheating and may only be asked if relevant evidence exists. The rationale for this requirement is to prevent lawyers from insinuating or implying false or misleading information through leading questions. The advocate must be able to substantiate the suggested facts, although the underlying proof need not be admitted as evidence.

F. Cross-Examination Myths

There are numerous myths about cross-examination that arise from a misunderstanding of cross-examination strategies and tactics.

• Myth: Only an experienced lawyer can be an effective cross-examiner. An attorney who thoroughly prepares and asks proper questions can be effective. Advocates, regardless of experience, have the capabilities to conduct an effective cross.
• Myth: The cross-examiner must know the details of expected answers before asking the questions. The reality is that often the lawyer will know prior statements and know what the witness will repeat at the trial or hearing. But there may not be available a complete verbatim transcript or prior statement for some witnesses. The advocate will still need to ask leading questions and can effectively do so by accurately predicting what the witness will say. The more accurate the predictions, the more effective the leading questions will be.
• Myth: The cross-examiner must not be caring or sensitive. Decision makers may identify with the witness. The witness may be perceived as a nice, decent person or may have a background similar to that of fact finders. They expect ordinary witnesses to be treated courteously and respectfully, and not to be treated in an uncaring or insensitive manner.
• Myth: Cross-examination should be conducted very aggressively. An attorney who conducts an overly aggressive cross-examination may be perceived as manipulating the witness and the evidence. An advocate must be perceived as being fair and should be politely insistent and professionally assertive rather than excessively aggressive.
• Myth: The witness should be shown to be a liar. Some witnesses will lie, and some may be readily exposed on cross-examination—if clear evidence exists contradicting the lie. A direct attack on the veracity of a witness may be ineffective if the facts don’t support that conclusion. Attacking the credibility of witnesses by suggesting they are lying is ill advised unless there is admissible evidence of the lies.
• *Myth: Self-serving witnesses should be forced to admit they are wrong. *Witnesses typically testify in a self-serving way, because that is inherent in the nature of their testimony. Many witnesses make honest and good faith efforts to testify accurately, and will not look or sound like they are making things up. They may be mistaken, and even wrong. If evidence exists to directly counter their testimony, it can be an effective basis for cross.
• Myth: Witnesses try to spin slanted stories. Most likely, witnesses see or hear or recall only a portion of an event and add details they want to or assume have occurred. They then blend their recollection of what occurred with the presumed details. This mistaken recollection and misbelief form the bases for their testimony and can also be grounds for an effective cross.
• Myth: The witness ought to be destroyed on cross-examination. The purpose of cross-examination is not necessarily to make the witness look or feel bad, but to obtain evidence to win a case. After an effective cross, witnesses may leave the room without having been “bullied” or “destroyed.”
• Myth: Cross-examinations must produce dramatic results. A cross-examination that fails to leave the fact finder gasping, the witness crying, or the attorney exalting does not indicate the cross has been a failure. Some cases involve overly dramatic moments, while most do not.
• Myth: Cross-examination provides an opportunity to debate with the witness. Argumentative questions are improper and likely to draw an objection. The cross-examiner wants to obtain helpful responses from a witness and to avoid debating.
• Myth: Cross-examination often escalates into a shouting match between the witness and the attorney. There is seldom a need to ask questions in a loud or harsh manner. Few witnesses deserve or require this badgering.
• Myth: Cross-examination should result in the witness “confessing.” Witnesses seldom “confess” their guilt or liability on the stand. Some witnesses, including informants and criminals, can be made to admit to their lies and crimes. Civil cases do not often involve such witnesses.
• Myth: Cross-examinations that appear on television or in the movies are realistic and appropriate. More often than not, cross-examination questions posed in a television drama or motion picture trial or theater play are unrealistic and inappropriate. Witnesses do not usually deserve to be treated as commonly depicted in these imaginative and exaggerated art productions, nor will they as readily change their testimony.
• Myth: Cross-examinations should always be short. A cross-examination should be as long as necessary to obtain the required information from the witness. With some witnesses, cross-examination will be short, and with others, long. There is no set time limit for effective cross. The facts, witnesses, and events determine the content and length.
• Myth: Cross-examination should only cover a few points. Some advocates suggest that cross-examination should only address a limited number of points. This is appropriate advice if that’s all the information an advocate needs to develop. Many cross-examinations require the development of more points. What one experienced attorney considers to be one point with six sub-points, another lawyer may consider to be seven points. Regardless of the semantics or the counting system used, a cross should fully cover what is necessary.
• Myth: Cross-examination is the most difficult advocacy skill. A well-prepared cross-examination, seeking answers known to or reasonably predicted by the cross-examiner, need not be any more challenging than other parts of the case.

Preparation

A. Planning the Cross

Thorough planning, smart preparation, and an understanding of effective examination tactics are necessary to craft a successful cross. Cross-examination can be problematic, ineffective, and embarrassing if questions are phrased improperly, unsuitable areas are explored, or counsel loses control over the exam. Several considerations shape proper planning.

You undoubtedly have been involved in numerous cross-examination experiences in your life. You have been both a cross-examinee (remember being a teenager) and a cross-examiner (recall a relationship, perhaps). You may also have had employment or other experiences that influence your perspective. And you have vicariously experienced cross-examinations through literature and the arts.

These events have shaped your approach and can affect how you prepare and believe a witness should be cross-examined. It’s best, for now, to suspend your views on what you believe effective cross-examination tactics entail until you complete this Chapter. Then you can revisit your views and approaches and modify them to be an effective professional cross-examiner at a trial or hearing.

Preparation for cross-examination begins during the preliminary stages of a case. Witnesses are interviewed, statements are taken, documents are preserved, and depositions are completed. The responses obtained from these discovery sources provide information useful for cross-examination planning.

Before trial or hearing, the different areas of cross-examination are selected and specific questions are composed. It’s wise for the advocate to consider the perspective of the decision maker and ask: what else will, or may, the fact finder need, or want, to know about? Then, questions may be compiled to provide this additional information.

Planning continues until the moment cross-examination begins. The advocate listens carefully to the answers the witness gives on direct examination and adds, deletes, or modifies questions to be asked during cross. The well-prepared cross-examiner is usually able to ask a high percentage of prepared questions by recognizing or predicting: what the witness will testify to on direct, what the witness knows and does not know, and what the witness previously has said, written, done, or revealed.

Adjustments may be necessary during the cross-examination itself. The witness may not respond as anticipated or may give unresponsive or ambiguous answers. The advocate must listen intently during the cross and flexibly adapt to the responses by insistently asking follow-up questions that produce the desired responses.

As with other advocacy skills, LLMs and Gen AI can assist in the planning and preparation of cross-examination. See § 1.10 (E).

B. Why Cross-Examine?

The decision to cross-examine must be made during case preparation and again during the trial or hearing. Whether cross-examination should be conducted as planned, or whether any cross should be conducted at all must be finally resolved after the witness has completed direct examination. The vast majority of witnesses merit some or significant cross questions. The following factors provide guidance in determining whether a witness should be cross-examined extensively or minimally or be asked certain questions:

• Has the witness damaged the case? If the witness has not provided any damaging evidence, the cross may be unnecessary. A witness who does not appear credible or whose story is not reliable may only need to be selectively cross-examined.
• Is the witness unimportant to the other side? The less significant a witness, the more likely a cross or a lengthy examination is unnecessary.
• Will the decision maker expect cross-examination? Witnesses who have provided damaging information or who are important to the other side need to be examined to meet the expectations of the fact finder and to prevent opposing counsel from commenting on this failure during summation.
• Did the witness omit important adverse information on direct examination? Cross-examination regarding that information may be unwise. Occasionally, an opposing attorney may intentionally withhold evidence during the direct exam of a witness anticipating the evidence will be disclosed on cross or redirect. If there is no cross-examination regarding this evidence, this information may not be disclosed. Some experienced lawyers set this trap for the novice advocate.
• Will cross unavoidably bring out information that weakens the cross-examiner’s case? If cross will yield more harmful than helpful evidence, it’s best not to cross on those issues.
• Are questions being asked only for the sake of asking questions? If the cross will serve no better purpose, it shouldn’t be conducted for that reason.
• Does this witness present any difficulties that may cause substantial problems? If a witness is a very difficult witness, the cross-examination should be designed to avoid or reduce these complications.
• Are there questions that are unnecessary based on the direct examination answers? Some prepared inquiries that are not now needed may be scrapped.

GenAI and LLMs can help develop cross-examination strategies. LLM-backed tools can be used to analyze case data, witness testimonies, and relevant information. During case preparation, lawyers can use these AI platforms to review documented evidence and witness statements, identifying inconsistencies, biases, and impeachment areas to challenge witness credibility. Further, these systems can also simulate cross-examination scenarios, predicting witness responses and case impact, helping develop strategic decisions. Consequently, potential cross-examination questions to weaken testimony or highlight unreliability can be readily generated.

AI systems can also provide real-time analysis during trials. As witnesses testify, an LLM can cross-reference prior statements (e.g., deposition transcripts, motions, briefs, pleadings), identifying discrepancies or omitted information. If a witness provides damaging evidence, the LLM could quickly analyze context and suggest targeted questions to further undermine credibility. If a witness omits adverse information, the LLM could advise on the risks of addressing it during cross-examination, helping avoid opposing counsel’s traps. ese available methodssignificantly counsel’ssuccessful

For example, a witness might testify that they saw the defendant at the crime scene. Lawyers can use the LLM to review past witness statements, identifying and locating previous deposition testimony where the witness mentioned being unsure about the exact time they saw the defendant. The LLM could then: (1) flag the discrepancy, (2) display the quoted deposition transcript, and (3) suggest cross-examination questions such as: “In your prior deposition, you stated that you were unsure of the time, didn’t you?” In this way, LLM-backed tools can provide programmatic impeachment.

C. Full and Fair Opportunity

A party has a right to cross-examine a witness fully and fairly. Infrequent situations may arise when a witness who has testified on direct examination cannot be cross-examined. These situations include: (1) the assertion of a privilege by the witness permitting the witness to refuse to answer questions, (2) a witness becoming ill or otherwise incapacitated before or during cross, and (3) the refusal of a witness to answer a question which the judge, arbitrator, or administrative law judge (ALJ) orders the witness to answer. In these situations, the cross-examiner may request that all the direct examination testimony of the witness or the parts of it relating to the cross-examination topics be stricken and ignored because no opportunity exists to examine the witness regarding those matters.

D. Scope of Cross

The scope of cross-examination usually encompasses the following two areas: the subject matter of direct examination and matters affecting credibility issues. The law in most jurisdictions, including the federal system, limits cross to the scope of the direct and to matters that discredit the witness or the case. See Fed. R. Evid. 611(b). Judges, arbitrators, and ALJs do have broad discretion to permit inquiries into additional matters. Cross-examiners typically will have a lot of latitude to explore relevant areas affecting the case or the credibility of a witness.

While the rules of a given jurisdiction may appear to restrict the scope of cross-examination, practice often permits broad inquiries. But not always. Some decision makers enforce the rules strictly and sustain an objection that the cross exceeds the scope of the direct. When this occurs, the cross-examiner should explain that the questions apply to credibility permitting a broader cross-examination.

If a relevant area of inquiry on cross exceeds the scope of the direct examination and does not involve credibility issues, the cross-examiner has several options. First, the questions may be asked, and the opponent may not object. Second, the opponent may object, and the objection may be overruled, permitting the answers. Third, the attorney can seek permission to allow a broader cross-examination and explain that the witness can be called back later to testify and it would be more efficient if the examination was promptly completed. Fourth, if the questions are disallowed, the advocate can call the individual as an adverse witness to testify at the next opportunity in the case and then introduce the evidence.

E. Topics and Questions

Cross-examination is most effective when topics and questions are prepared sufficiently in advance. Experienced advocates may be able to effectively cross-examine by relying primarily on a list of topics. Many lawyers, however, especially novice attorneys, need to write out questions to be successful. The extent of preparation depends upon the significance of the question or topic, the type of witness, and the abilities of counsel.

Effective cross-examination often demands that the advocate ask specific questions containing precise words. In these situations, the attorney, particularly the aspiring cross-examiner, is well advised to compose these queries in advance. LLMs can assist with composing and editing effective questions. See §§ 1.1(C) & 9.2(B).

Counsel needs to avoid merely reading the planned script. Most prepared questions need not be altered significantly during the case, but a lawyer must adapt the questions to changing circumstances. The advocate must pay attention to the verbal and nonverbal responses of the witness and ask necessary follow up and clarifying questions.

F. Structure of Cross

Cross-examination questions should be asked in an orderly structure that makes the cross most effective, interesting, persuasive, and memorable. An effective way to organize cross-examination points is to:

• List all the points expected to be made.
• Divide the points into the two broad categories of cross-examination: supportive cross and discrediting cross.
• Rank each point from most to least important in the two categories.
• Select the most effective order of the more important points.
• Organize the sub-points in a sequence that makes most sense.
• Review all the listed points and decide whether the initial assessment of their rank, order, and sequence is best.

G. Order of Questions

When both supportive and discrediting questions are to be asked, the supportive cross-examination questions ought to be asked first for a number of reasons: (1) These questions elicit favorable information and will be emphasized by being asked at the beginning of the cross. (2) The topics likely relate to questions asked on direct examination that was just completed. (3) The witness may be more cooperative at the beginning of a cross-examination. And, (4) the credibility of the witness has not yet been attacked and the fact finder may perceive the witness to be more believable.

The structure of supportive cross-examination should begin and end with important questions, with other relevant queries asked in the middle. The final point of supportive cross may serve as a transition into the discrediting category of cross-examination.

The shift from supportive to discrediting cross-examination may cause a conundrum. The cross-examiner wants the fact finder to believe the admissions elicited during the supportive cross and to find the witness not credible as a result of the discrediting cross-examination. The transition questions that begin the discrediting cross should be selected to reduce this concern. Highly effective discrediting cross may render testimony so unbelievable that the fact finders may not believe the supportive cross-examination answers. In these unusual situations, it may be better to avoid asking supportive cross-examination questions altogether or to limit their scope, unless there is no other source for this information.

The order of the discrediting cross-examination questions should also follow a prepared structure. Important points could be made at the beginning and at the end of this category of questions, with other points interspersed in the middle. Or a sequence of logical questions can be asked that culminate in answers that lead to the sought after responses.

An alternative method to a logical series of planned questions is to probe areas in a random fashion. This “jumping around” or “hop and skip” approach has the advantage of causing problems for a witness who is confused or may be fabricating responses. Such a witness, if asked questions in a rational or chronological order, may maintain the fabrication, but if asked questions in a random order, may testify inconsistently. This approach has disadvantages. The cross-examiner may have difficulty remembering what has been asked, and the fact finder may find it difficult to follow an unstructured or seemingly chaotic cross. This alternative requires practice and experience to be effective.

H. Concluding Queries

The concluding questions of a cross-examination should:

• End the examination on a high note with an effective point.
• Not be objectionable to avoid disrupting the conclusion.
• Be the type with which the witness will readily agree.

I. Recross Examination

The scope of recross examination is limited to the subject matter of the redirect examination. A primary purpose of conducting a recross is the same as conducting a cross-examination: Is there any information this witness has that is needed for summation? Recross examination questions can refer to the redirect answers: “During the redirect examination by your counsel, you stated that. . . . However, it is true that. . . .”

If no recross is necessary, the cross-examiner can say: “Your Honor, there is no reason for further questions.” There often is no need to conduct a recross, and a recross should not be conducted merely because redirect questions were asked. Recross questions should not be asked if: (1) there are no further significant or new points to make, (2) the redirect was ineffective, or (3) the examination of the witness has been overly lengthy and the fact finder cannot reasonably absorb more from this witness.

J. Prime Location

The advocate should consider a location that is most effective. The cross-examiner asks the questions containing the evidence and needs to be prominently heard and visibly seen. Unlike direct examination where the testimony comes from the witness, during cross-examination, it is the advocate, in effect, who presents evidence through leading questions that are confirmed.

The cross-examiner may have the option to sit or stand. Many jurisdictions require counsel to stay behind a lectern and not move about. Cross-examiners may approach the witness when showing the witness an exhibit or using a visual aid. Many jurisdictions require the attorney to remain seated behind the counsel table, especially in administrative hearings and arbitrations. In some small hearing rooms, the cross-examiner may sit only a few feet away from the witness.

In jurisdictions where counsel has options, the cross-examiner should determine what location is best. This will depend upon the type of questions asked and the demeanor and responses of the witnesses. If the cross-examiner wants the fact finder to observe the witness displaying guilt or uncertainty, the cross-examiner should stand in a location that requires the witness to look in the direction of the fact finder and that permits the fact finder to observe the advocate.

If the lawyer can move during cross-examination, movement should be purposeful. It may be effective to relocate during impeachment or when significant questions are asked to control the response of the witness. It will be necessary to approach the witness when exhibits are to be identified. Gen AI may assist in suggesting exhibits that may be effectively used during cross-examination. See §1.10(E).

The closer the cross-examiner is to the witness, the more the witness may become uncomfortable and not credible. The cross-examiner, however, cannot stand too close or “crowd” a witness. Opposing counsel will object and ask that the cross-examiner be instructed to move away a suitable distance or to return to the lectern or counsel table.

K. Proper Demeanor

Compassion and confidence are two critically important cross-examination traits for an advocate. Witnesses typically deserve to be treated decently because of the nature of the case or just because they are human. And, the decision maker may expect people to be treated fairly. Further, if the witness perceives that the cross-examiner is confident and assured, the witness is more likely to be agreeable and less evasive.

The most effective demeanor for a cross-examiner is to be firm and insistent, yet compassionate. This is especially true when attempting to elicit supportive evidence. An empathetic or sympathetic cross-examiner is more likely to elicit favorable information. Some witnesses deserve special treatment, including witnesses such as young children, a victim of a crime, or a bereaved spouse.

Other situations may require more persistence and assertiveness on the part of the attorney, particularly during impeachment or when controlling an evasive or rambling witness. The cross-examiner should avoid becoming aggressive or combative with a witness and avoid displays of surly anger or churlish exasperation, including: an overly loud voice, too fast a pace, impolite facial expressions, offensive gestures, and annoying comments. Such discourteous and rude behavior is ordinarily inappropriate as well as ineffective, and may draw a sustained objection or the ire of the fact finder.

Some categories of witnesses may seemingly deserve to be treated harshly, such as liars, wrongdoers, and miscreants. How they should be treated depends upon their lack of character and the nature of the issues, as well as how effective such tactics may be utilized and how they will be perceived.

Form and Content

A. Effective Formats

The goal on cross is to ask leading, short, fact-based questions. This is as close to an absolute rule as exists in advocacy. The converse: asking non-leading, lengthy, and ambiguously phrased questions may quite likely cause an examination disaster.

Successful cross-examination requires the use of proper tactics and techniques. Many of these approaches are principles or “commandments” which should seldom be violated, and only if a very good reason exists and only if the advocate can maintain control of the responses.

These tenets include:

• Ask proper leading questions.
• Select precise, fact based statements.
• Compose short, concise, simple questions.
• Seek agreement from the witness.
• Be reasonably insistent and persistent.
• Control the responses.
• Maintain an appropriate pace.
• Emphasize helpful points.
• Utilize safe questions.
• Design appropriate questions for special witnesses.

The tactics and techniques described in this and the following sections should be reviewed before every cross-examination to determine which should be employed. Not all the techniques ought to be used in every cross, but many will be applicable. If a problem does occur during cross, it is usually because one of these tactics was not properly utilized.

Cross-examination questions must be carefully crafted and precisely asked. The difference between an effective cross-examination question and an ineffective one is often subtle. A wrong word, the mistiming of a question, too long a query, or a momentary loss of control may cause problems. A witness may properly refuse to respond, may claim a question is unclear, and may try to explain an answer, because the cross-examiner failed to ask a precise and concise well-crafted question.

GenAI and LLMs can aid in these processes, as well as assist in formulating effective questions. For example:

• Lawyers can use LLMs to improve question format (e.g., “rephrase the above into leading questions”)
• LLMs can also help search the record (e.g., depositions, produced documents) for exhibits to support leading questions
• Advocates can also use text from the record (e.g., depositions, documents) to formulate cross-examination questions.

These methods won’t replace legal analysis, but LLMs can augment and expedite cross-examination-preparation tasks.

B. Form of Questions

1. Leading the Witness

Only leading questions that suggest or contain the answer should be asked on cross. Questions that require a “yes,” “no,” or a short, anticipated answer should be asked. Non-leading questions that permit a witness to explain or expand an answer should be avoided because they are open-ended, may result in damaging testimony, and cannot be controlled.

As perhaps with any rule, there are occasional exceptions to using leading questions. The advocate may want a witness to repeat a direct exam answer; the experienced lawyer has responsive follow up questions and can readily control the witness; or an attorney may not really care about a specific response. See § 9.4. But these infrequent and risky queries can be replaced with effective leading questions or avoided all together.

Example:

Q: You are Chicago, correct?

A: Yes.

Q: You are hog butcher for the world?

A: Yes.

Q: Toolmaker, correct?

A: Yes.

Q: Stacker of wheat?

A: Yes.

Q: You’re a player of railroads and the nation’s freight handler?

A: Yes.

Q: It is fair to say you are stormy?

A: Yes.

Q: Husky?

A: Yes.

Q: Brawling?

A: Yes.

Q: You are the city of the big shoulders?

A: Sure.

Q: And your poem was written by Carl Sandberg?

A: Of course.

2. Form of Leading Questions

Leading questions should be formulated to prompt responsive answers. A properly phrased leading question requires the witness to agree with its contents. There are a variety of ways effective leading questions can be asked.

Example:

Ask: You saw Olivia Pope on the Capitol steps?

Not: Did you see the defendant on the Capitol Steps?

Phrases may be added to leading questions to obtain an answer. These prefaces or clauses may be useful in prompting a response. The repetitive use of these phrases ought to be avoided if they detract from the substance of the queries. Examples include:

Example:

You saw Rose Sayer on the African Queen, isn’t that correct?

Or,

It’s true that you saw Rose Sayer on the African Queen?

Or,

You saw Rose Sayer on the African Queen, right?

Leading “questions” may also be asked in the form of statements that sound like questions because of the cross-examiner’s voice inflection.

Example:

Q: You met Buddy Holly at the airport (emphasis)?

A: I did.

Q: At about 11:00 p.m.?

A: Yes.

Q: That was the first time you met Mr. Holly?

A: Yes.

Q: And the last?

A: Sadly.

Different types of leading questions should be used for variety and to prevent a cross from sounding monotonous.

3. Simple, Short Questions

Short, straightforward questions in simple, understandable language are most effective. Lengthy or complex questions likely will be confusing.

Example:

Ask:

Q: The fight began?

A: Yes.

Q: The referee stood in the middle of the ring?

A: Yes.

Q: Ali stood in one corner?

A: Yes.

Q: Frazier stood in the opposite corner?

A: Yes.

Q: Ali began to move toward the center of the ring?

A: Yes.

Q: Frazier also began to move towards the middle of the ring, right?

A: Yes.

Not:

Q: As the fight began both Ali and Frazier stood in their respective corners at the opposite sides of the boxing ring and then each of them began to move towards the center of the ring, isn’t that what happened?

4. Avoiding Multiple Negative Questions

Questions that contain double or multiple negatives are bewildering.

Example:

Do Not Ask:

Q: It is correct is it not you don’t know who was on Galactica?

Q: It is untrue, isn’t it, that you are not from Battle Star?

C. Content of Questions

1. Asking Fact Based Questions

Questions that include the relevant facts prompt responsive answers. The factual words included in the cross-examination question must be based on accurate facts to compel a witness to admit the accuracy of the question. Questions that seek an unsupported conclusion, or employ words with multiple meanings, or are not fact-based permit the witness to be non-responsive or to try and explain an answer.

Example:

Avoid Asking:

Q: When you visited with Michael Cory, you wanted to sell him as much insurance as you possibly could?

A: He came to my office. I told him I could provide him with an affordable insurance policy that met his needs.

Ask Instead:

Q: You asked Mr. Cory to come to your office?

A: Yes.

Q: He was there so you could sell him insurance?

A: Yeah.

Q: You told him you could sell him insurance?

A: I suppose.

Q: You wanted to sell him insurance?

A: Yes.

Q: Your job was to sell him insurance?

A: It was, and I did.

Some words appear to be “facts” but are conclusory words. Each cross-examination question should be reviewed to determine whether the precise words used are specific and concise facts.

Example:

Avoid Asking:

Q: Mr. Churchill read the lease agreement, correct?

A: He may have skimmed the lease.

Q: He understood the lease terms before he signed, didn’t he?

A: I don’t know.

Ask Instead:

Q: You handed Mr. Churchill the lease agreement?

A: Yes.

Q: You saw him look at the lease agreement?

A: I did.

Q: He sat there for some time examining the lease?

A: Yes.

Q: The two of you discussed the agreement for over an hour?

A: We did.

Q: He asked you some questions about the terms?

A: Yes.

Q: You answered his questions?

A: As best I could.

Q: You asked him if he had other questions about the lease?

A: Yes.

Q: You believed he understood the agreement?

A: I thought so.

Q: You asked him whether that lease met his country’s needs?

A: Yes.

Q: And he said, “Victory is at hand.”?

A: Correct.

Q: You then saw him sign that lease?

A: Yes.

2. Effectively Asking for Factual Conclusions

An effective way to induce a witness to provide a fact-based conclusion or opinion is to first establish its factual basis. For example, if you want eyewitnesses to admit they were tired at the time they made an identification, you first need to establish factually how and why they were tired before you ask conclusory questions about their being tired.

Example:

Q: Mr. Chavez, your pickup truck was stolen around 8:00 p.m., correct?

A: About that time.

Q: You got up that morning about 6 a.m.?

A: Approximately 6 o’clock.

Q: You worked from 7 a.m. until 6 p.m.?

A: Yeah.

Q: You worked hard all day?

A: Sure.

Q: You rushed to get the job done by 6 p.m.?

A: We always work hard to get things done on time.

Q: Yes, and hard work can be tiring?

A: It can.

Q: You had someplace to go right after work?

A: Yep.

Q: You drove to a union meeting with your fellow workers?

A: I did.

Q: That lasted from 6:30 to 8:30 p.m.?

A: It did.

Q: As the union president, you led the meeting?

A: Correct.

Q: Working 11 hours is a tiring experience?

A: It can be.

Q: And you were very busy for over 13 hours that day?

A: Yes.

Q: You were naturally tired at the end of that day?

A: Somewhat.

Q: It was quite a long day?

A: A typical day for me.

Q: You were going home and looking forward to resting?

A: Sure.

Q: Because you had quite a tiring day, right?

A: It was.

Q: And you were tired?

A: By that time, yes.

Q: And that’s when you first saw a stranger by your truck?

A: Ah, yes.

If the witness was asked the conclusory answer before the factual predicate, the witness could have tried to bring up reasons for not being tired. Factual questions establish that the witness was tired and prevent the witness from reasonably explaining away an answer. Even if the witness refused to admit to being tired at the end of the day, the fact finder would believe the witness was tired and would not believe the denial based on inaccurate non-responsive answers.

3. Utilizing Modifiers

The use of adjectives and adverbs as modifiers may help in obtaining favorable responses from a witness. Different impressions may be created on cross if appropriate modifying words or phrases are used. For example, a witness may be willing to admit to different degrees of being tired depending on the sequence of questions and the modifying words used.

Example:

Q: You were somewhat tired after working a full day, correct?

A: Yea.

Q: Working all those hours made you feel tired?

A: A bit.

Q: Working those additional overtime hours made you more *tired *than usual?

A: Perhaps.

Q: You had a *hard *day at work?

A: There were some issues.

Q: These were difficult issues?

A: Yeah.

Q: You had deadlines to meet that day, correct?

A: I did.

Q: That all made you feel quite *tired *by the end of the day?

A: Somewhat, yes.

Q: Your work on that demanding day caused you stress?

A: Well, some.

Q: You were under *pressure *to get your work done on time, right?

A: I was anxious.

Q: Yes, you were feeling some amount of anxiety?

A: By the end, yeah.

Q: And you were stressed, correct?

A: At the end, sure.

Q: It’s fair to say you were very stressed at the end of the day?

A: I suppose.

Q: Let’s not suppose. In fact, you felt very stressed then?

A: Yes.

Further questioning with some witnesses may even have them agreeing to being “extremely tired” at the end of the day. Ideally, they may admit to being exhausted. Using modifiers—a little, somewhat, quite, very—is an effective way to have the witness gradually agree to a position.

4. Selecting Synonyms

If a specific word is being sought on cross-examination, a synonym may be useful instead of trying to force the witness to admit to an exact word. A thesaurus provides alternative words that may more effectively describe a fact. In the eyewitness example, having the witness agree to being “exhausted” at the end of the day rather than just being “tired” is much more effective, but more difficult to achieve. Synonyms can accurately portray what really occurred. In addition to the word “tired,” other words such as fatigued, worn-out, weary, beat, rundown, bushed, drained, or tuckered out could be sequentially used. If a witness denied feeling some of these effects at the end of a tiring day, the fact finder would disbelieve the witness about not being tired or would conclude the witness is not credible.

5. Emphasizing a Point

It is an effective technique during cross-examination to ask a series of short, precise questions rather than one broad, general question to highlight a significant fact. Several concise questions can emphasize a favorable point and are easier to understand.

Example:

Avoid Asking:

Q: You had 3 drinks at the bar that night waiting for Shrek?

Rather Ask:

Q: You arrived at the bar at approximately 6:15 p.m.?

A: Yes.

Q: You ordered one martini?

A: Yes.

Q: And you drank that martini?

A: Yes.

Q: You made a choice to order a second martini?

A: Yes.

Q: And you drank the second martini?

A: Yes.

Q: You could have stopped drinking then?

A: Yeah.

Q: You didn’t stop.

A: That’s correct.

Q: You choose to have a glass of wine?

A: Just one.

Q: And you drank all of that?

A: I did.

Q: You say you left the bar at approximately 7:15 p.m.?

A: Approximately.

Q: Princess Fiona, you drank two martinis and one glass of wine during that hour you were at the bar?

A: Yes.

Controlling Cross-Examination

The proper form and content of questions is also key to controlling responses and the conduct of the witness. Several tactics and techniques can effectively produce the answers sought on cross.

A. Seek Agreements with Witnesses

1. Be Considerate

Witnesses ordinarily deserve courteous treatment, as explained previously. Some witnesses may deserve righteous indignation and some may be questioned with an aggressive approach, but no one deserves to be questioned in an obnoxious manner. The cross-examiner can usually be more effective by being insistent, politely assertive, and persistent and by showing appropriate consideration rather than overt aggression.

Example:

Q: Ms. Lindberg, I understand this is a difficult time for you. We all know the kidnapping and death of your son was a terrible tragedy. You realize I need to ask you some questions so we can understand all that happened.

2. Flatter the Witness

An effective way to obtain a responsive answer to a leading question is to ask a question that makes the witness look good. Witnesses are much more likely to agree with a position that serves their self-interest or flatters them in some way. For a related eyewitness example, if the purpose is to get the witness to admit to being tired, then questions should be asked which show the witness had legitimate reasons to be tired.

Example:

Q: Becky Thatcher, you consider yourself a good worker?

A: Yeah.

Q: You physically exert yourself, when your job requires it?

A: You bet.

Q: Sure. And your work is demanding?

A: I’ll say.

Q: You want to succeed at your job, don’t you?

A: I’d like to, yes.

Q: You try to do the best possible job you can?

A: I try.

Q: And you are a very dedicated worker?

A: I try to be. Yes.

Q: You worked a long day?

A: Longer than usual.

Q: Yes, it was unusual for you to work that late?

A: I did the work.

Q: And you worked hard?

Q: Yes.

Q: Especially hard?

A: It was a privilege.

Q: And it’s fair to say you were tired at the end of your long, hard day of work along the Mississippi?

A: Yeah, I was.

These and additional questions lead to the inevitable conclusion that a hardworking and committed employee who worked a full day would naturally be tired at the end of that day. Positive, supportive, and flattering questions usually produce agreeable witness answers.

3. Establish Propositions

One of the purposes of cross-examination is to provide the fact finder with a different perspective and explanation of a situation. These views can be established by asking questions that develop various accounts. The cross-examiner wants the witness to show agreement with a concept by agreeing with the question. However, a witness may disagree with a specific word or phrase. The cross-examiner should then focus on establishing the idea and not necessarily force the witness to agree to certain terms or descriptions. The use of various alternative words can lead the witness to an agreeable response. The technique of using synonyms described in Section 9.3(C)(4) can help establish favorable propositions.

Example:

Q: The game was challenging?

A: Yes.

Q: You played rough?

A: I tried.

Q: And, you played tough?

A: Yeah.

Q: You wanted to win?

A: Of course.

Q: You felt hot?

A: I was.

Q: Sweaty?

A: Yeah.

Q: You were tired at the end of the game, Ms. Hopscotch?

A: Yes.

Q: All that hopping and bending wore you out?

A: Yep.

Q: And you were very tired then?

A: Yes.

Attempting to have the witness agree with a conclusory word before asking a sufficient number of appropriate fact questions is likely to backfire. It is much wiser to ask the preliminary questions establishing the facts, so the witness has to agree. In the above example, summation can be used to explain that the ability of the eyewitness to make an identification was greatly diminished because the witness was too tired to pay attention.

4. Use Indirection

Cross-examiners sometimes use indirection in asking questions. Indirect questions may not alert the witness about why a question is being asked or the purpose of a line of questioning until the point is made. During witness preparation, the direct examiner will advise the witness of the anticipated areas of cross-examination, and the witness will understand the purpose behind some cross questions. This advance information may not be sufficient to alert witnesses to all areas of cross, and their unfamiliarity with the legal process may reduce their ability to think clearly and anticipate questions, making indirection an effective tactic.

Example (Cross-Examining the Employee):

Presume the cross-examiner represents an employer who fired an employee who then sues the employer for breach of the employment contract. The defendant claims the plaintiff was an “at will” employee and could be fired at any time without cause.

Q: You could quit your job at any time, Ms. White, is that correct?

A: Yes.

Q: Those seven little men could not force you to stay?

A: Not if I wanted to leave.

Q: Yes. If you no longer wanted to work in the mine you could leave?

A: That’s true.

Q: You could go work elsewhere?

A: I could.

5. Save Point for Summation

An effective cross-examination helps the fact finder remember and understand the point made during cross-examination. Therefore, questions should be crafted so that at the end of a series of questions the fact finder understands the point being made. Sometimes, the purpose of some questions may be unclear. There is often a temptation to ask a final summary question to make a point obvious. A last question may give the witness an opportunity to clarify or explain, and it may be best to avoid the summary question and explain the reason in summation.

Example:

Q: Officer Krupke, you consider yourself a good police officer?

A: I do.

Q: You take pride in your work?

A: Yes.

Q: You have been a police officer for ten years?

A: Yes.

Q: You graduated from the Police Academy?

A: Yes.

Q: You regularly attend police training programs?

A: Yes.

Q: You hope someday to become a captain?

A: That would be my hope.

Q: You were the detective in charge of this case investigation?

A: Yes.

Q: You spent many hours conducting that investigation?

A: Yes.

Q: You spent several weeks involved in that investigation?

A: Yes.

Q: You developed a profile of the person who you believe committed this crime?

A: We did.

Q: It’s fair to say you had a professional opinion about the kind of person who committed this crime?

A: Yes.

Q: After further investigation, you selected two individuals who you thought may have committed this crime?

A: We initially narrowed our investigation to two.

Q: But you were not sure?

A: That’s true.

Q: And you conducted a thorough investigation of the first person on your list of suspects?

A: Yes.

Q: You later decided this first person didn’t commit the crime?

A: That’s right.

Q: You then investigated the second person on your list?

A: We continued our investigation of the second person.

Q: And after further investigation, you decided the second person could not have committed the crime?

A: Yes, that’s correct.

Q: And you still were not sure who committed the crime?

A: Not then.

Q: You started all over again?

A: Yes.

Q: And then you decided to begin an investigation of Mr. Riff, the defendant in this case?

A: Yes, we did.

Do Not Ask the Final Summary Question:

Q: So, you really weren’t sure of anybody, and Mr. Riff wasn’t on the top of your guilty list?

This last question will likely produce an answer that explains that Riff committed the crime. Instead, during summation describe: how uncertain the police were regarding their suspicions about the defendant; how long it took to conduct their unsuccessful investigations; how reluctant the police were to have arrested the defendant in the first place; and how there were other possible suspects who more likely committed the crime.

B. Control Responses and Witnesses

Effective cross-examiners are insistent and persistent. They expect a responsive answer, and they will ask follow-up questions if an answer is non-responsive. There are a variety of methods that can produce prompt, favorable responses and that reasonably control the witness.

1. Know the Answers

A cardinal rule of cross-examination is to ask a question to which the answer is already known by the cross-examiner. Many answers will be known because they appear in a witness statement, a deposition, a document, or are within the knowledge of another person. As described previously, LLMs can help locate prior testimony, discovery responses, and sources of information that provide the bases for composing cross questions. See §§ 1.10(E), 9.2(B), & 9.3(A).

If the witness refuses to answer properly, the source of the information can be used to remind or impeach the witness. See § 9.8(H). Further, because the witness knows a source of information exists, the witness will ordinarily give the expected answer, effectively controlling the response and witness.

Example (Controlling a Response Using a Witness Statement):

Q: You were driving your Speeder Cycle approximately 500 kilometers an hour, isn’t that correct Ms. Solo?

A: I’m not sure how fast I was going.

Q: You were going approximately 500 kilometers an hour?

A: I don’t know.

Q: You do recall that you gave a written signed statement in this case to an investigator, correct?

A: Yes, I did.

Q: In that statement you said you were going approximately 500 kilometers an hour?

A: Oh, that’s right. I was on my way to see my Dad, Hans.

2. Predict the Answers

There are situations in which the precise answer is not known but may be reasonably deduced. Some cases do not involve extensive investigation or discovery, and the lawyer may not know some things the witness will say. There may not be a complete witness statement; there may be questions that were not asked during a deposition; there may be a hearing conducted without prior statements from the witness. And there usually are some questions the cross-examiner needs to ask, the answers to which are unknown even after thorough investigation and discovery.

An effective cross-examination approach is to reasonably predict what the answers will be. A successful cross may be based upon a reasonable deduction of what the witness is likely, or very likely, to say. This determination can be based on what a reasonable person would have said or done or what is quite likely to have occurred. A party or another witness can be an excellent source of information about what an adverse witness likely knows or did.

Example:

Presume a witness overhears a loud conversation between two parties while walking home. Presume also that the cross-examiner does not know the precise answers to the following questions but can reasonably deduce the answers and demonstrate that the witness was preoccupied, distracted, and inattentive.

Q: Ms. Knightley, the day of the incident was on a Tuesday?

A: Oh, yes.

Q: You had some plans that evening?

A: Yes.

Q: On your way home, you were thinking about your plans?

A: Yeah. About later going to a movie.

Q: And you were looking forward to going to that movie?

A: Yes. I was.

Q: It was a film you wanted to go see?

A: Yes, a movie I love actually.

Q: And those thoughts were pleasant thoughts?

A: Yes, you could say that.

Q: You walked by the entrance to a restaurant?

A: I did.

Q: This happened while you were thinking about your evening plans?

A: Well, yes.

Q: You were also listening to music from your smart phone?

A: I was.

Q: You had airbuds in both your ears?

A: Yeah.

Q: You were enjoying the music as well?

A: It was relaxing.

Q: About that time, you heard some voices?

A: I heard those loud screaming voices.

Q: Yes, those screeching noises startled you?

A: A bit.

Q: You didn’t stop to listen?

A: Nope.

Q: You had no reason to stop, did you?

A: I was walking by.

Q: You just kept on walking, correct?

A: That’s right.

Q: Right past the shrieking voices?

A: Ah, yeah.

Q: As you were still listening to your music?

A: Yes.

Q: And you continued on your way home?

A: I did.

This approach can be successful in one of two ways. The witness may agree with the questions, as illustrated above. Or, if the witness disagrees, the fact finder will conclude the witness is being evasive or does not want to admit the obvious that is harmful. Either way, the cross has established a favorable point.

3. Listen and Observe

The cross-examiner needs to listen carefully to the answers and observe how the witness responds. The advocate must concentrate and listen to and observe the subtleties and nuances of the exact answers. Counsel may need to follow up on nonresponsive or ambiguous answers, to repeat or rephrase questions if a witness is perplexed, and to comment on the appearance and credibility of witnesses during summation.

Example:

Q: You were not at the Pollock studio, were you, Ms. Krasner?

A: No.

[Does the answer “No” mean “No, I wasn’t there,” or “No, I was there”? The inflection the witness uses in responding may make the response clear. If not, the cross-examiner should follow up:]

Q: That means you were not there?

A: That’s right.

Example:

Q: It is true that you don’t recall whether you saw the entire multi-media streaming video, right?

A: Yes.

[This question is awkwardly phrased because it contains the words “true,” “right,” and the negative: “don’t.” The attorney needs to clarify the response:]

Q: Your answer is that you don’t remember?

A: Yes.

Example:

Q: Ms. Thayer, you were the waitress who refused to take the chicken salad sandwich order from Mr. Nicholson, correct?

A: I . . . think so.

Q: Excuse me, your facial expression indicated that you may not have understood that question.

4. Avoid the Risky Unknown

A cross-examiner might be tempted to ask important questions to which the answers are unknown or unpredictable and cannot be reasonably deduced. This temptation may arise because the cross-examiner has not properly prepared the case or because the attorney is playing a hunch or thinks any possible response can be handled. These temptations need to be avoided. The advocate should prepare questions and techniques for dealing with possible surprise testimony during direct examination. If a witness on direct examination adds some new details that are unfamiliar to the cross-examiner, impeachment by prior inconsistent statements or omission may be available. See Section 9.10(E).

C. Techniques to Control Witnesses

The most effective way to control witnesses is to ask short, precise, accurate, fact-based questions to which they must agree. These carefully composed questions will induce or require the witness to concur. Questions that contain an answer that the witness has previously provided will also prompt a correct response. Examples in the previous sections illustrate this type of control. Imprecise questions or questions that contain non-factual conclusions will give the witness the opportunity to respond incorrectly or give a narrative, non-factual answer or explanation. These and lengthy or complex questions need to be avoided.

Another way of controlling responses is have readily available the sources of previous statements made by a witness. Their availability can be used to hold witnesses accountable for what they said, knew, or did. These statements will appear in documents, exhibits, and prior testimony, including direct examination. The lawyer can appear to rely on and read from them to control the responses of the witness, who will be inclined to agree with what the advocate suggests. Gen AI and LLMs have the ability to easily provide these sources of information. See §§ 1.10(E), 9.2(B), & 9.3(A).

Example:

Avoid Asking:

Q: At the time the fight started, you were standing behind the bar with your back to the counter talking to a customer and serving a tap beer, isn’t that correct, Mr. Gleason?

A: Not really. I was watching to see who started the fight, and I saw your client hit the plaintiff hard with his fist.

Rather Ask:

Q: A fight broke out, didn’t it Mr. Gleason?

A: Yes.

Q: You were behind the bar?

A: Yes.

Q: You were standing near the counter?

A: Yes.

Q: You were talking to a customer?

A: Yes.

1. Be Persistent

There are several ways to maintain control of a witness who fails or refuses to answer a proper question.

a. Repeat the Question

Example:

Q: You were standing behind the bar?

A: Well, yes, but I was looking up.

Q: You were standing behind the bar?

A: Yes.

b. Insist on an Answer

Example:

Q: You were talking to a customer?

A: Well, let me think about that. You see, there was this noise. . . .

Q: But that was not my question. You were talking to a customer, correct?

A: Yes.

c. Rephrase the Question

Example:

Q: You and a customer were talking?

A: I heard this noise.

Q: Perhaps my question wasn’t clear enough. Let me ask it this way. When you heard a noise, you were talking to a customer?

A: Yes.

2. Maintain Control

The cross-examiner can reasonably direct the witness to respond by employing an appropriate technique.

a. Advise the Witness to Answer

Example:

Q: You were standing behind the counter?

A: As I was looking over the counter.

Q: You turned around walking away from the counter?

A: A customer called me over.

Q: Mr. Gleason, please limit your answer to the question I asked in order to help us understand what happened.

A: All right.

Q: You first turned around?

A: Yes.

Q: Then you walked away from the counter?

A: Yes, I did.

b. Further Advise the Witness

Example:

Q: A woman customer asked you for a drink?

A: She was thirsty.

Q: She asked you for a microbrew?

A: We only sell that beer on tap.

Q: You served her a tap beer?

A: I serve what the customer wants. . .

Q: Mr. Gleason, for the sake of accuracy, please answer the question. If you don’t understand it, tell me and I’ll rephrase. If you can’t answer yes or no, tell me and I’ll ask another question.

c. Seek Cooperation from the Witness

Example:

Q: Mr. Gleason, during your direct examination you answered questions your lawyer asked you. You will be able to give me that same degree of cooperation you gave your lawyer, right?

A: I’ll try.

3. Seek Assistance

It may be helpful or necessary to obtain help from the judge, arbitrator, or ALJ during the cross-examination of a non-responsive witness.

a. Request a Curative Instruction

If a witness gives a nonresponsive answer, the judge can be asked in jury trials to instruct the jury to disregard the wrong answer.

Example:

Q: You then walked away to the far end of the bar?

A: But your client must have started that brutal fight.

Cross-Examiner:

Your Honor, we ask that you instruct the jury to disregard that last answer as being nonresponsive and improper.

b. Ask the Decision Maker for Further Assistance

Advocates can ask the judge, arbitrator, or ALJ to instruct the witness to answer the questions asked—if nothing else works. Some decision makers may do this on their own to prevent a witness from being unresponsive. However, some may refuse to assist the attorney and advise counsel to conduct the examination. It is ordinarily more effective to ask for assistance after a witness has failed or refused to answer a number of questions and after the lawyer has used techniques to obtain responsive answers. Many decision makers expect counsel to control the witness and to ask for assistance only if those attempts fail. Others, however, will control a non-responsive witness without being asked.

Example:

Q: The beer tap was behind the counter, wasn’t it?

A: I could clearly hear your client yelling.

Q: Again, Mr. Gleason, answer the question asked.

A: I’m trying.

Q: You turned around to pour the microbeer?

A: Just for a brief moment.

Q: You waited for the glass to be filled with beer?

A: I filled the glass.

Q: You stood there and poured a full glass?

A: That’s what I do for our customers.

Q: You waited to top off the beer?

A: What else would I have done? Of course, but. . . .

Cross-Examiner:

Your Honor, I object on the grounds of nonresponsiveness and ask you to instruct this witness to answer the question asked.

4. Be Primed

There are additional techniques to control a witness and responses, some to be employed and some may need to be avoided.

a. Close Loopholes

To increase the chances a witness will agree with a question, a witness may be asked a series of preliminary foundation questions as a predicate to obtain responsive answers.

Example:

Q: Ms. Ammal, you gave the police* a description* of the person you saw sell the herbal methamphetamine?

A: Yes.

Q: The events were fresh in your memory?

A: Yes.

Q: The description you gave was accurate?

A: Yes.

Q: You wanted to assist the police in finding this person?

A: You bet.

Q: You did not withhold any information from the police about the description of this person?

A: I didn’t.

Q: You gave the best possible description you could?

A: I did.

Q: And the description you gave was. . . .

These preliminary questions lay a foundation requiring the witness to respond favorably because no reasonable person would disagree with the resulting conclusions. Predicate questions take away excuses a witness may give for not saying or for doing something. In the above example, the witness may attempt to explain the prior description given to the police was not accurate in an effort to change the description of the drug dealer at trial. The preliminary questions compel the witness to agree to what was previously said and to what is reasonable.

b. Avoid Explanations

As explained previously, questions that permit a narrative response, or that ask “how” or “why,” invite disaster in a cross-examination. A witness should not be given an opportunity to explain something that diminishes the point made on cross. The opposing attorney may ask questions on redirect examination, but the cross-examiner should not ask questions that prompt explanatory responses.

Example:

Do Not Ask:

Q: So, tell us why you’re so sure my client, Lex Luther, did it?

A: I’ve never seen anybody commit such a vicious act. I saw him beat up the victim. He (pointing to the defendant) did it. I’m sure.

c. Don’t Ask the One Question Too Many

Questions should be designed to produce necessary information. When it’s obtained, the advocate should stop asking questions. Continuing with more questions may hurt the case because the witness has another opportunity to explain an answer. It may be tempting to overreach and try for an incredibly favorable response, but reasonable discretion ought to prevail. Moreover, the explanation can be readily saved for summation.

Example:

Q: After the robbery, you gave a description of the person who robbed you to the police?

A: Yes, I did.

Q: You told the police that person was about 5′10″?

A: Yes.

Q: Weight around 200 pounds?

A: About that.

Q: Had blue eyes?

A: Yea.

Q: Blonde hair?

A: Sure.

Q: And wearing a tee shirt and jeans?

A: Yes.

Q: That’s the full description you gave?

A: I believe so.

Q: Now that description fits many people who live in this community, doesn’t it, Ms. Magdalene?

A: I will never forget the guy who stole everything from me. That’s him sitting there, right next to you.

The last question is one question too many and should not be asked. The attorney can explain that point in closing argument without trying to get the witness to agree.

d. Anticipate the Unexpected

Witnesses usually agree with leading questions, but advocates need to be prepared in case they do not. A prior statement can be used to refresh their recollection or impeach them. The cross-examiner must know all the details of prior statements. If there are no previous statements or ready sources to hold the witness accountable, there are some things that can be done to prepare for these situations. Again, LLMs can identify and locate a previous witness statements. See §§ 1.1(C), 9.2(B), & 9.3(A).

First, prepare alternative questions, to avoid having to ask questions spontaneously if there is an unexpected answer. If the expected answer is yes, presume the witness will say no and prepare for a “no” response. Also, have additional questions on related topics prepared in case the witness says, “I don’t remember.” This preparation can be an arduous process, but necessary. See § 9.2(E).

Second, focus on asking questions about concepts and not words. If witnesses will not agree with the choice of words, change the words and get them to agree with the concept and related terms. See § 9.4(A).

Lastly, avoid arguing with a witness over a proposed answer. Ask the next prepared question. When a witness gives an unexpected response, do not quarrel with the witness or ask any of the objectionable or ineffective questions listed in § 9.1(D). Thorough preparation for unanticipated responses will provide the next question.

D. Ask Safe Questions

1. Emphasize Supportive Direct Examination

The general rule is that direct examination testimony should not be repeated on discrediting cross-examination because the repetition of the direct will only strengthen the opponent’s case. However, repetition of direct examination testimony will be effective if that part of the direct is supportive of the cross-examiner’s case. Leading questions are the effective way of presenting supportive evidence on cross-examination. Non-leading questions already asked on direct may be effective on cross only if the answer is very favorable and witness control is not a problem.

Example:

Q: Humpty Dumpty, as you told us on direct examination, you approached the wall on your own?

A: Yes.

Q: You then decided to sit on top of the wall?

A: I did.

Q: You were able to climb the wall on your own?

A: Yea.

Q: You sat on the top of the wall, correct?

A: Yes.

Q: Then you fell off the wall?

A: Yep.

Q: There was no one around when you fell off the wall?

A: That’s right.

Q: No one pushed you?

A: No one.

Q: And that was a great fall?

A: Sure.

Q: Some people came immediately to help you?

A: Yes.

Q: All the King’s men came?

A: There were a lot of them.

Q: And all their horses?

A: Apparently.

2. Ask “Neutral” Cross-Examination Questions

Safe, neutral questions are helpful to control the witness and prompt responsive answers. On cross-examination, problems with a witness may arise, and precise questions direct the witness back on track.

Example (Volunteer Witness):

Q: Ms. Williams, you were asked to be a witness in this case by the attorney for the plaintiff, correct?

A: Yes.

Q: You were not served with a subpoena ordering you to come to court to testify, were you?

A: I was not served.

Q: You came here today because the attorney asked you to come?

A: Yes.

Example (Familiarity with Evidence):

Q: Mr. Jordan, you have talked with the attorney for the plaintiff about this case?

A: Yes.

Q: You discussed the testimony that you were going to give in this case?

A: Yes.

Q: You also previously talked to the plaintiff, Ms. Clark?

A: Yes.

Q: And you discussed with the plaintiff the work being done on the basketball court?

A: Yes.

Q: And you talked with other witnesses in this case about the work that was not completed?

A: I did.

Q: Before coming here to testify today, you knew what the plaintiff was going to say, didn’t you?

A: Well, not everything.

Q: She had told you about the problems with the court?

A: She did, yes.

Q: And you also knew some of what other witnesses were going to say?

A: Yes.

Q: Because they told you as well?

A: Yes.

Example (Reviewed Documents):

Q: You were not present in court when the plaintiff testified, were you, Mr. Ali-Baba?

A: No.

Q: You had a chance to read the deposition of the plaintiff that was taken before this hearing, didn’t you?

A: I did.

Q: And you had a chance to read statements the attorney for the plaintiff showed you?

A: I did.

Q: And those statements contained the stories of some of the witnesses in this case?

A: I believe so.

Example (Favorable Testimony):

Q: Ms. Rolex, you understand why the plaintiff has brought this trademark lawsuit?

A: Yes.

Q: You knew that your testimony would help the plaintiff’s case?

A: I believe my opinions will.

Q: You understood that the plaintiff expected you to testify favorably?

A: That’s why I’m here.

Q: Precisely. You’re here to support the plaintiff?

A: Sure.

These questions and answers may not establish information useful for cross-examination purposes compared to the other approaches explained in this Chapter. However, they may be useful in situations where safe, neutral or indirect questions need to be asked. Arguments may be made based on answers to the questions that the witness appears biased, over-prepared by the other attorney, or has no personal knowledge of the facts.

Questions for Specific Witnesses

A. Witnesses with Communication Issues

Certain witnesses require special consideration. These include children, vulnerable individuals, and witnesses with communication issues. With these, the careful crafting of cross-examination questions is especially important. Utilizing simple words, a gentle approach, and a slower pace can be effective. Other witnesses necessitate other approaches.

B. The Evasive Witness

Some witnesses may give evasive answers to cross-examination questions even though the questions are effectively phrased. They may display selective memory, forgetting information that hurts them and only remembering information that helps them. Rambling witnesses provide nonresponsive answers, defeating even the best efforts to control their responses. Occasionally, witnesses may take on an adversarial demeanor or hostile attitude, even though the cross-examiner is tactful and polite. Still other witnesses may repeatedly answer by saying “I’m not sure,” “I can’t remember,” “I don’t recall,” “Maybe,” or “I don’t know.”

Evasive witnesses, if allowed to continue, usually destroy their own credibility. Fact finders perceive these witnesses to be unreasonably elusive and do not believe their story. One way to cross-examine them is to continue to ask fair questions and to permit them to continue to be evasive. The more a witness testifies in an unreasonable manner, the more likely it is that their testimony will be ignored. The negative impact created by these elusive witnesses may extend beyond their story and adversely affect other parts of the opponent’s case.

During summation, the cross-examiner can compare the selective memory or evasive answers of these witnesses given during cross with the good memory and cooperation of favorable witnesses on direct examination.

C. The Reputation Witness

Because the character of a party or witness is usually not an issue, few cases involve the examination of reputation witnesses. The credibility of a witness who testifies can be attacked by the testimony of another who states that the reputation of the witness for telling the truth is poor. Most people have reasonably decent reputations for telling the truth. And, it’s difficult to locate a person who can convincingly testify that a witness has a propensity for being untruthful. Further, attempts at such efforts will likely be unsuccessful. Consequently, the opportunities to cross-examine reputation witnesses do not arise often.

When such opportunities occur, reputation witnesses can be cross-examined like any other witness. They may also be cross-examined as to specific instances of misconduct that contradict the character trait in issue. Cross-examination questions can establish bad acts, prior misconduct, convictions, and other instances that contradict the reputation established on direct examination. Some cross-examination techniques are:

• If the reputation witness testifies that the person has a good reputation in the community, the question, “Have you heard . . . “ of specific instances of misconduct can be asked.
• If the reputation witness opines that the reputation of the person is good, the question, “Do you know . . . “ of specific instances of transgressions can be asked.
• Reputation witnesses can also be effectively cross-examined with questions that establish their lack of personal knowledge about relevant events:

“You were not online when the Script Kiddies downloaded the confidential malware, were you?”

“You did not see the listings on Etsy by the defendant selling fake American Inns of Court medallions, did you?”

Another line of questioning may establish the limited knowledge of the reputation witness and the narrow basis of the testimony:

“Thousands of people live in the Hakuna Matata community?

You only talked to a few of them about Nala’s reputation for truth?”

Or

“You only spent time with the claimant and Ms. Fiore viewing destination wedding locations?

You are unaware of how the claimant treats his fiancé when they are alone?”

Some jurisdictions restrict the type of cross-examination questions that may be asked of a reputation witness. All jurisdictions require that the cross-examiner have a good faith basis and available proof to establish the prior misconduct.

Discrediting Cross-Examination

As explained in the introduction to this Chapter, a primary function of cross-examination is to discredit the opponent’s case. Questions are designed to assail the testimony of witnesses and their credibility and other evidence offered by the civil or criminal opponent. These questions attack the legitimacy, integrity, and persuasiveness of the opponent’s positions.

A challenge for the cross-examiner is to establish facts, opinions, conduct, events, and circumstances that provide the fact finder with reasons to disbelieve a party or a witness. As described previously, humans are inclined to want to believe others, and so the burden is on the cross-examining advocate to persuade and convince decision makers that an opposing party ought not to be believed. Discrediting cross focuses on the lack of credibility, believability, and sincerity of opposing witnesses.

As with supportive cross-examination approaches, there are factors common to civil disputes that may be established to enhance damaging cross-examination. As previously illustrated, conventional themes revolve around notions of responsibility and accountability. The goal of discrediting cross, in part, becomes an effort to show the opposing party to be more accountable or irresponsible and, accordingly, more deserving of losing.

This section describes and provides a variety of cross-examination techniques and tactics that discredit evidence and impeach witnesses. Section A explains how to attack a story that is implausible, improbable, or impossible. Section B describes how to establish inconsistencies between witnesses. Subsequent sections explain impeachment areas and strategies.

A. Implausibility, Improbability, Impossibility

During case preparation, the evidence may reveal that the anticipated testimony of a witness is too far-fetched to be believed. Cross-examination can establish that the story told by a witness ought not to be trusted because it’s implausible, improbable, impossible, or a combination of these.

1. Implausible

The story may be implausible because it does not make sense or reflect common life experiences. For example, a repair person may testify that three years before the trial, while repairing floor tile in the hallway outside the office of the CEO of Cadient Transport, he recalled overhearing the CEO say these words: “I just ordered via IMB Chat, 740 autonomous electric express van vehicles at a price of $58,600 each.” The complexity of the words and numbers demonstrate that the story told by the witness is implausible. Counsel may persuasively argue in summation that this recollection ought not to be believed.

2. Improbable

A version of a story, or part of a story, may be improbable. It may be very unlikely the story could have occurred the way the witness describes. The more unlikely the story, the more easily a showing of improbability may be made. For example, a witness may testify that she was no more than 100 feet away from a warehouse while riding her e-mobility scooter at a speed around 5 miles per hour towards the building when she heard the explosion and then saw the defendant running away. During cross-examination, the attorney may place a mark on a diagram showing her position at the time of the explosion. During summation, the attorney can use a mathematical formula for the number of feet per second this model e-scooter travels at 5 miles per hour to show that either she was at least 300 feet away or that she was speeding over 20 miles per hour, which, while possible, is improbable.

3. Impossible

Some witnesses may sincerely tell an impossible story. While they may honestly believe what they perceived and remember, they are still wrong. For example, a witness may testify that, while parked in a car behind the crosswalk at the intersection of Oak and Elm, he saw the defendant traveling on her motor trike at a high rate of speed. The cross-examination may ascertain the exact position of the witness when he said he saw the accident. During the defense case, the cross-examiner may call an investigator to introduce photos or a video taken through the windows of an identical car from the spot where the witness said he was parked showing a brick building completely blocking the view of the witness.

B. Establishing Inconsistencies

A witness story may be inherently correct and complete, but may contradict the story told by another witness. Cross-examination can establish these inconsistencies. For example, Police Officer Hernandez testifies that Sergeant Schultz was holding the shotgun in her right hand with the barrel pointed toward the ground. The defense cross-examiner may have Officer Hernandez repeat part of this testimony to highlight it for the fact finder. Officer Garibaldi subsequently testifies for the defense that Sergeant Schultz held the shotgun in both hands with the barrel pointed at the deceased. The defense can then argue these material inconsistencies during summation and point out why a particular witness (Officer Garibaldi) ought to be believed.

It is improper to ask one witness to comment on the credibility of another witness or to ask whether a witness believes another. It is permissible to ask a witness if that witness agrees or disagrees with a story told by another witness. For example, it is improper to ask: “Do you believe Officer Hernandez is telling the truth?” However, counsel may properly ask Officer Garibaldi: “Officer Hernandez testified that Sergeant Schultz held the shotgun in her right hand. Do you agree or disagree with Officer Hernandez?”

Impeachment Strategies

Impeachment is designed to reduce the credibility of the testifying witness, the trustworthiness of a story, or the believability of another witness. Any witness may be impeached. A declarant of a hearsay statement who does not appear as a witness in person may also be impeached. Federal Rule of Evidence 806 and similar state rules permit the impeachment of a hearsay declarant to the same extent that a live witness can be impeached.

As previously described, fact finders may have a difficult time determining whether a witness is telling the truth or a lie. Humans, including professional decision makers and jurors, are not generally adept at readily detecting deception. They tend to or want to believe someone is accurately recounting a story. And so, impeachment efforts need to be especially effective at developing discrediting cross-examination.

It may well be that a client fiercely believes an opposing party is lying about important facts, or is being connivingly deceitful, or is just obviously mistaken. Some witnesses can be attacked as liars; others may be accused of being dishonest; and many can be shown to be mistaken. The choice for the advocate is to decide what compelling evidence exists to establish the most helpful and persuasive approach.

A. Impeachment Evidence

Effective impeachment involves material evidence and significant issues. If an issue is collateral—immaterial or insignificant—the impeachment is usually ineffective or disallowed. Whether impeachment evidence is collateral depends upon its impact on the issues in the case and on the credibility of the witness. Impeachment evidence may be introduced if the evidence relates to a significant issue, reduces the credibility of a witness, or raises critical relevant concerns.

Impeachment is most effective when it relates to significant facts or opinions adversely affecting the credibility of the witness or story. A “reasonableness” test is the standard that is commonly used to determine the value of impeachment material. If it is reasonable that the testimony of a witness might be adversely affected, or if the testimony is unreasonable because the witness has testified differently on separate occasions, the impeachment is sensible and should be conducted.

The following examples illustrate the reasonableness factor:

• If a witness is a good friend of a party, it is reasonable to demonstrate that the witness may be biased in favor of that party. If a witness is merely an acquaintance of a party, that remote fact may not sensibly establish bias.
• In an attempt to establish bias on the part of the witness in favor of a party, it is reasonable to show that the witness is a current, loyal employee of the party for whom the witness is testifying. On the other hand, it may be ineffective for the cross-examiner to establish significant bias if the witness had worked for the employer for a short time several years ago and had no contact with the employer since that time.
• It is reasonable to demonstrate that the witness has made a significant change in testimony concerning details of an event. For example, if a witness testifies at a deposition she “thought” it was the defendant who was operating the surveillance drone and then testifies at trial she is “certain” the defendant was operating the drone, such a significant change in her opinion will make impeachment worthwhile.
• It usually is not reasonable nor effective to impeach a witness on a minor detail or issue. A witness to a crime may testify that she was standing at a store laptop display when she saw the defendant. Investigation reveals she stood by a smart tablet display and not a laptop display. An attempt to impeach the witness by showing the display was for tablets and not laptops may be so insignificant that it’s unproductive.

Impeachment efforts regarding minor discrepancies commonly backfire because the fact finder may conclude that if the trivial issue is the best the cross-examiner has, the case must be weak. Witnesses may have made prior statements that contain slight inaccuracies when compared with the actual evidence. These inaccuracies may be so inconsequential they are not worth the attempted impeachment of the witness.

Minor mistakes may be worth the impeachment effort if they are numerous or cumulatively add up to substantial errors. A witness who makes various small misstatements may be disbelieved on major issues. The advocate can argue in summation how these discrepancies reduce the credibility of the witness and the accuracy of the story. An LLM can provide sources of potential impeachment discrepancies, and the advocate can decide what is tactically wise to compare and contrast. See §§ 9.2(B) & 9.3(A).

B. Relying on Extrinsic Evidence

A witness may occasionally deny the impeaching evidence. For example, a witness may testify that he is not an employee of defendant corporation or a witness may deny having a felony criminal record. The cross-examiner is usually able to introduce extrinsic (meaning from a source other than the witness) evidence to establish the impeaching fact. For example, the cross-examiner may call the personnel director of defendant corporation to testify that the witness is an employee, or the cross-examiner may introduce a certified copy of the criminal conviction or ask the court to take judicial notice of that fact. Again, an LLM can assist with locating sources of impeachable evidence.

Extrinsic evidence may not be admissible if the impeaching issue is collateral. An issue is collateral if there is no direct connection between the impeaching fact and a relevant issue in the case. For example, a witness may testify on direct examination that she saw a restaurant neon sign fall on a pedestrian as she was drinking her vanilla shake. The cross-examiner asks her whether, in fact, the shake was chocolate, not vanilla, and she denies that it was chocolate. The cross-examiner will not be able to call the server to testify as to the flavor of the shake because the type of shake is only collateral and not related to any material issue.

However, if the same witness testifies on direct examination that she saw the neon sign hit the pedestrian while she was sitting in a window booth, the cross-examiner may ask her whether she was in fact sitting at a wall table. If the witness denies sitting along the wall at a table, the cross-examiner may call the server as a witness to testify that the witness was sitting by the wall with her chair facing away from the glass window, preventing her from seeing out. This issue is non-collateral because it directly relates to the ability of the witness to see and perceive.

C. Responding to Impeachment

The cross-examiner must consider the counter-tactics available to the direct examiner in response to impeachment. The direct examiner has a number of options:

First, the direct examiner can object to the impeachment effort. The accusation may be collateral or insignificant and improper impeachment.

Second, the direct examiner may request that related statements explaining the impeaching evidence be introduced immediately to reduce the impact of the impeachment. Jurisdictions commonly have a completion rule permitting the introduction of statements related to the area of impeachment contemporaneously with the impeaching statement. See, e.g., Fed. R. Evid. 106. The rationale for this rule of completeness is to permit statements to be placed in accurate and complete context.

For example, a witness may testify during a deposition: “The bus was traveling around 30 miles per hour. But it may have been going slower.” On direct examination, the witness testifies that the bus was traveling “no more than 20 miles an hour.” On cross-examination, the cross-examiner introduces the prior statement that the bus was traveling “around 30 miles per hour” to impeach the witness. The direct examiner can ask that the prior statement—“But it may have been going slower”—be introduced at this same moment during cross-examination to present the complete context of the statement. This request should be allowed, and the complete prior statement can be introduced.

Third, the direct examiner can offer the impeaching evidence during the initial direct examination and before the cross. It is less harmful if the witness voluntarily explains a mistake or problem on direct. For example, it is a preferred practice for a witness who made a significant prior inconsistent statement to admit making the mistake during direct examination and explain why.

Fourth, the direct examiner during redirect examination can have the witness explain away significant impeaching evidence. This may be necessary, even if the witness first explains it on direct examination, depending upon how damaging the information is and how it was elicited during cross-examination. For example, if a witness during direct testified on a critical issue that there were three firefighters at the scene, and during cross admits there were only two, a redirect examination question would be: “Why did you say, during cross-examination, there were two and not three firefighters at the scene?” The witness may reply: “I was describing two different scenes. At one, there were three firefighters, and at the other, only two.”

Fifth, the direct examiner may rehabilitate an impeached witness with a prior consistent statement if it rebuts a charge of fabrication or improper motive. See, e.g., Fed. R. Evid. 801(d)(1)(B). A witness may have previously written down or verbally communicated a statement consistent with the direct examination. If there is an available prior consistent statement, it can be introduced as an exhibit. If the prior consistent statement was made orally to another person, that person may be called to testify.

Sixth, in a jury trial the direct examiner may request that the judge give the jury an instruction limiting the jury’s consideration of the impeaching evidence to its effect only on the credibility of the witness and not as substantive proof of the evidence. The success of this request depends on the nature of the evidence and the law. See § 4.5(E).

Areas of Impeachment

There are several major established areas of impeachment:

• Interest, Bias or Prejudice.
• Competency Deficiencies.
• Inadequate Observation/Lack of Perception.
• Poor Recollection/Lack of Memory.
• Inconsistent Conduct.
• Criminal Records.
• Specific Instances of Untruthfulness.
• Prior Inconsistent Statements/Omissions.

The more reasons why an opponent is not credible or why an opposing story ought not to be believed, the greater the opportunity grows to win a case. These areas of impeachment may be used cumulatively to achieve a favorable outcome by discrediting an adversary’s case. Evidentiary searches may provide available sources of potential impeachment topics and evidence, and LLMs can help craft those topics and evidence into effective questions. See §§ 9.2(B) & 9.3(A).

A. Interest, Bias or Prejudice

Witnesses may have an interest that motivates them to testify in a certain way. This interest might be financial gain or an emotional reason, such as revenge. Establishing these factors on cross can demonstrate the underlying motivation behind the testimony of a witness and may significantly reduce the credibility of that witness.

Bias and prejudice are factors that prevent a witness from being impartial. A witness may have a bias in favor of or a prejudice against a party or a case. Favoritism or partiality can result from a variety of causes, and often involves a relationship the witness has with a party or an interest the witness has in the case. The most common sources are family, friendships, employment situations, and life experiences. Establishing these factors during cross demonstrate the underlying influences which make impartiality and neutrality difficult or impossible.

If a witness denies the existence of an interest or a relationship, extrinsic evidence of that fact can be established. The cross-examiner can introduce such a fact through a witness or an authenticated document.

Example (Prejudice):

Q: Mr. Bluto, you don’t consider Popeye a friend, do you?

A: He’s not a friend.

Q: You have argued with him over the years?

A: Yes.

Q: You’ve had many disagreements with him?

A: We have.

Q: Popeye has taken Olive Oyl, the woman you love, from you?

A: He’s trying.

Q: That makes you angry?

A: Of course.

Q: Very angry?

A: Well, yea.

Q: It is fair to say, Mr. Bluto, that you really hate Popeye?

A: Without a doubt.

Example (Bias):

In a contract dispute, a witness for the respondent has a close friendship with the plaintiff.

Q: You are a close friend of Ms. Marvel?

A: Sort of.

Q: Ms. Buffay, you two were best friends in high school?

A: Way back when.

Q: You kept in touch over the years?

A: Along with some others.

Q: You took a few vacations together?

A: A few.

Q: You are longtime friends on Facebook?

A: We are.

Q: And you follow her career on LinkedIn?

A: She follows me.

Q: It’s fair to say you and her are good friends?

A: I knew the defendant too.

Q: But you and the plaintiff are quite good friends?

A: Yes.

Example (Interest):

In a commercial lease dispute, the witness is the mother of the claimant.

Arbitrator:

Counsel, you may cross-examine.

Q: Ms. Zillow, you co-signed this lease for your daughter?

A: Yes.

Q: She needed you to sign with her?

A: She asked me.

Q: And you would do what she asked?

A: I did what was necessary.

Q: You want to help her as much as you can?

A: I try my best.

Q: Of course. As her mother, you want to do all that you can?

A: Yes, she needs my help.

Examiner:

We understand. No further questions.

B. Competency Deficiencies

Section 7.2(A) described the four competency requirements for a witness: oath, perception, recollection, and communication. Cross-examination may establish that a competent witness has deficiencies that reduce credibility. The competency requirements of perception and recollection are two areas most frequently attacked on cross-examination.

The two other requirements consisting of an oath and the ability to communicate are not usually areas for cross-examination inquiry. If a witness is unable or has difficulty taking a sworn oath or affirmation, the opposing attorney will argue that the witness is incompetent. After a determination has been made that a witness has properly taken an oath, that requirement will usually not be an effective area to be probed on cross. Further, Federal Rule Evidence 610 prohibits evidence of religious beliefs or opinions to be used for the purpose of reducing or enhancing the credibility of a witness.

Occasionally, a child witness or another witness who has difficulty discerning the truth may be cross-examined to establish an inadequate or inappropriate understanding of the sworn oath or affirmation. Because of the delicate nature of the issue and the vulnerable status of the witness, cross-examination on this matter may cause the fact finder to empathize with the witness and to perceive the cross-examiner negatively. Effectively cross-examining a witness on the abstract notions of truth is difficult. Cross-examination can be effective when a record exists showing the witness has lied previously or has told a story different from that told on direct examination. See § 9.9. In jury trials, cross-examination about the oath or affirmation is usually conducted without the jury being present.

Some communication problems witnesses have may not be effective areas for cross-examination. If a witness cannot communicate clearly, an interpreter will be made available by the examining attorney or tribunal to translate the testimony in an understandable fashion. See § 3.6(E). If a vulnerable witness has difficulty communicating because of other reasons, cross-examination inquiries may make the fact finder more sympathetic toward this witness rendering the cross ineffective. If a witness has difficulty because of nervousness or some other reaction, that factor may be self-evident and not require any cross questions. In jury trials, cross-examination concerning the ability of a witness to communicate is usually conducted outside the presence of a jury, with the judge making a ruling.

C. Inadequate Observation/

Lack of Perception

To reduce credibility, the ability of a witness to observe an event or to perceive a situation may be challenged on cross-examination. Most witnesses do not observe or perceive everything, and the inadequacies of observations and the lack of perception may be established on cross-examination. Common causes are:

• Witness was not expecting the event.
• Witness was distracted.
• Event happened quickly.
• Circumstances were unusual.
• Event frightened the witness.
• Situation surprised the witness.
• Witness was doing something else during the event.
• Details of the situation were not previously described.
• The witness was relying on sight, taste, hearing, smell, or touch which were adversely influenced.

Example (Car Driver):

Q: Professor Knapp, you were driving east on Summit?

A: Yes.

Q: You were on your way to the law school?

A: Yes.

Q: You approached the intersection of Summit and Victoria around noon?

A: Yes.

Q: Your class begins at noon?

A: Yes. When I get there.

Q: You were going to be late for that class?

A: Sadly, yes.

Q: You were anxious to get to school?

A: Yes.

Q: You were in a hurry?

A: A bit. But I wasn’t speeding.

Q: You spend a fair amount of time planning your classes?

A: Yes.

Q: Sometimes you think about your classes at home?

A: Yes.

Q: And sometimes when you are driving your car?

A: Yes. But I pay attention.

Q: Your class was on your mind as you drove east this day on Summit Street?

A: Yes, I suppose.

Q: As you approached the intersection of Summit and Victoria, the stop and go traffic light turned red?

A: Yes.

Q: You noticed there was a crossing guard standing on the sidewalk to your right?

A: Yes, she was on the southwest corner.

Q: While you were waiting at the intersection, you would from time to time glance up at the light to see if it had changed?

A: Yes.

Q: And you looked around to see if there was anyone in the intersection crossing the street?

A: Yes.

Q: I believe you said on direct examination you saw two students to your right talking to the crossing guard?

A: Yes.

Q: Your radio was on in your car at this time?

A: I listen to public radio.

Q: It was noon time and the news was on the radio?

A: Yes.

Q: Cars were driving north and south through the intersection?

A: Yes, I saw some cars drive by and Dean Heidenreich’s limo.

Q: You were not expecting to see an accident at that time, were you?

A: No.

Q: That surprised you?

A: Yes.

Q: When you first heard the collision it startled you?

A: I was startled.

Q: You had a passenger in your car part of the way to the law school?

A: Yes.

Q: You were driving with Professor Juergens?

A: Yes.

Q: And you and she talked during the drive?

A: We did.

Q: As you were approaching the law school?

A: I guess so.

Q: Let’s not guess. You were chatting just before the accident?

A: We were.

Example (Car Passenger):

Q: You were in the car with Professor Knapp, correct?

A: Yes.

Q: You both were on your way to the law school?

A: Yes.

Q: During the drive you talked with Professor Knapp?

A: Yes.

Q: He told you he was in a hurry because he was late for class?

A: He mentioned he was late.

Q: The car you were both in was stopped at an intersection by a crossing guard?

A: Yes.

Q: While the car was stopped, Professor Knapp made some remark about the crossing guard?

A: Yes.

Q: He said he wished he were a crossing guard instead of a law professor?

A: Yes.

Q: And you said, “There is not much difference.”?

A: As a joke, obviously.

Q: After the accident, both of you drove on to the school?

A: Yes.

Q: You don’t recall Professor Knapp saying anything else to you about the accident, do you?

A: No, I don’t recall.

Q: You do recall that he said after the accident he was going to be late for class?

A: He said that, and he was sad.

D. Poor Recollection/Lack of Memory

Witnesses will not remember everything they observed or perceived. They may have had their recollection influenced by what they learned after an event. Cross-examination can reveal reasons why the memory of a witness is lacking or unduly influenced. If the witness denies the underlying fact showing poor or absent memory, the cross-examiner can introduce that fact through extrinsic evidence. Common factors that diminish the recollection of a witness include:

• The passage of time.
• The absence of any record.
• Discussing the matter with others.
• Being involved in similar situations.
• Inability to distinguish this event from others.
• Matters that adversely affect memory.

Example (Inability to Remember Details):

Q: After the accident, you immediately drove on to the law school, correct Professor Knapp?

A: Yes.

Q: You did not wait at the accident scene?

A: We left.

Q: You didn’t then give your name or address to anyone?

A: I did not.

Q: You didn’t tell anyone at that time what you saw?

A: Not then.

Q: Back at the law school, you discussed the accident with Professor Juergens, the passenger in your car?

A: Yes.

Q: You discussed what you saw?

A: We talked about it.

Q: You taught four hours of classes that day?

A: Yes.

Q: You stayed in your law school office and sent some emails?

A: Yes.

Q: You bought some—I won’t mention what—from eBay on the Internet?

A: For my collection.

Q: You did not talk about this accident with anyone else while you were at the law school?

A: No.

Q: After school, you went home for dinner?

A: Yes.

Q: You recall you told your wife, Ms. Jesson, and your children—Chris, Nathan, and John—that you saw an accident that day?

A: I mentioned it at dinner.

Q: You don’t recall all the details of what you told them, do you?

A: No, not really.

Q: About a week later you talked to an investigator about this accident?

A: Yes.

Q: During that week after the accident, you don’t recall whether you talked to anyone else about the accident, do you?

A: No.

Q: Sometime later you talked with an investigator, a Brad Cousins, didn’t you?

A: Yes.

Q: He gave you an accident report form to complete?

A: I believe so.

Q: You never filled out that form, did you?

A: No.

Q: You never made any notes about the accident, did you?

A: No, they’re not a part of my memoirs.

Example (Experienced Officer/Lack of Details):

Q: Detective McConaughey, you mentioned on direct that you thought the street lights were on and working at the corner where the opioid sale took place, correct?

A: Yes.

Q: This event took place approximately two years ago?

A: Almost two years ago.

Q: You arrived at the scene shortly after the event took place?

A: Yes.

Q: You immediately began an investigation, correct?

A: I did.

Q: You talked with witnesses at the scene?

A: Yes.

Q: During an average week would you say you talked to dozens of potential witnesses?

A: It’s difficult to say, but that’s likely.

Q: You may talk to more than a hundred different people during a month?

A: Some weeks more, some less.

Q: How long have you served as a detective?

A: Six years.

Q: It’s fair to say you can’t remember the details of all the cases you have worked on?

A: I can’t recall them all, no.

Q: When you conduct an investigation and talk with a witness you complete a report, correct?

A: Yes.

Q: You can’t possibly remember all the details these witnesses tell you?

A: That’s correct.

Q: You have investigated many cases over the past two years since this event?

A: Yes that’s true.

Q: It’s impossible to remember all the details of those cases?

A: That’s right.

Q: That’s why you need reports?

A: Yes.

Q: These reports need to be accurate?

A: Yes.

Q: And complete?

A: Yes.

Q: The reports need detailed information?

A: Yes.

Q: If the reports don’t have the details, an incident can be confused with another?

A: Yes, that can happen.

Q: You complete a report to make a record of the investigation?

A: Yes.

Q: I’m handing you Exhibit 7, your report. This can help refresh your memory about details of that investigation?

A: It can.

Q: This report that you completed in this case included the important information from all the witnesses?

A: Yes.

Q: It also had all the important details that you saw?

A: Yes.

Q: There is no mention anywhere in your report that the streetlights were working, correct?

A: There is no mention.

Q: There is no mention about other sources of lighting in that area, is there?

A: Not in the report.

Q: And, there is no mention anywhere in your Exhibit 7 report about the lighting conditions at the corner where the drug sale took place?

A: No, there isn’t.

Example (Salesperson/Lack of Knowledge/Memory):

*Plaintiff has sued defendant for breach of an express warranty made during a pre-owned car sale. The salesperson has testified on direct *examination that he does not recall stating that the car had no major mechanical problems and denies that the plaintiff consumer asked whether the car had major mechanical problems.

Q: You have been a salesperson with Courtesy Car Company for three years, Mr. Loman?

A: Yes.

Q: Would you say that you have sold three or four cars a week on the average over the three years?

A: That would be a fair average.

Q: You, of course, talked with each of these customers?

A: Of course.

Q: Some of these customers leave and come back to the car dealer a number of times before deciding to buy a car?

A: Yes.

Q: In addition to all these customers, you also talk with other potential customers who decide not to buy a car?

A: Yes.

Q: Would you say that you talk to another 20 or 30 potential customers during an average week?

A: That is more difficult to estimate. Some weeks more, some weeks fewer.

Q: With each of these customers and potential customers, you talk about the features of the cars they are interested in?

A: Yes.

Q: You talk about the exterior of cars?

A: Yes.

Q: You talk about the interior of cars?

A: Often.

Q: You talk about various options?

A: Sure.

Q: You talk about many features of the cars?

A: Yes.

Q: The plaintiff, Betty Buckley, bought a used car two years ago?

A: She did.

Q: When you first met her on the sales lot she was like any other customer, correct?

A: Yea.

Q: And when she returned to buy the car, she was also like any other customer?

A: Yes.

Q: Most customers ask questions about the cars they like?

A: Yeah.

Q: And Ms. Buckley asked you some questions about her car?

A: Probably.

Q: You cannot remember specific questions she asked you?

A: Not really.

Q: Customers often have questions based on what they want?

A: Yes.

Q: You don’t recall whether Ms. Buckley asked about a satellite radio that gets Broadway musicals, do you?

A: I don’t recall.

Q: You can’t recall what she asked you about available colors?

A: Not specifically.

Q: Nor what she asked about sale promotions?

A: I can’t say I do.

Q: As a salesperson it’s important for you to meet the needs of your customers?

A: Well, yes.

Q: And you try your best to satisfy your customers?

A: You bet.

E. Inconsistent Conduct

Testimony of a witness may be discredited because the conduct of the witness may be inconsistent with the direct examination evidence. Cross-examination can disclose that the actions of the witness are inconsistent with the testimony of the witness. If the witness denies the inconsistent behavior, the cross-examiner can introduce extrinsic evidence.

Example:

In a personal injury case, the plaintiff Joyce Simmons has testified regarding the extent of injuries to her lower back, including pain and suffering.

Q: Ms. Simmons, immediately after the accident you got out of your car?

A: Yes.

Q: You walked over to the tram?

A: Yes.

Q: You talked to the tram driver, a John Candy?

A: I did.

Q: He called 911?

A: He told me he did.

Q: Neither of you called for an ambulance?

A: Not that I know of.

Q: You then walked over to a gas station?

A: Yes.

Q: That was about a hundred yards from the accident scene?

A: I would guess so.

Q: You used the restroom there?

A: Briefly.

Q: You talked to the gas station attendant?

A: I told her what had happened.

Q: You did not ask to call for a doctor?

A: I did not.

Q: You then walked back to the accident scene?

A: Yes.

Q: You stood around and waited for the police?

A: Yes.

Q: The police arrived about ten minutes later?

A: About that.

Q: You talked with the police?

A: Yes.

Q: You didn’t ask for an ambulance or a doctor then, did you?

A: No.

Q: A tow truck arrived?

A: Yes.

Q: You stood around and watched the truck tow your car away?

A: Yes.

Q: About an hour after the accident, a Lyft driver drove you home?

A: It was an Uber driver.

Q: You didn’t ask to go to a hospital?

A: No.

Q: When got home, you told your family about the accident?

A: Yes.

Q: You then ate dinner?

A: Yes.

Q: After dinner you and your husband went to a movie?

A: To relax.

Q: After the movie you went home and went to bed?

A: Yes.

Q: The next morning you got up?

A: Yes.

Q: You ate breakfast?

A: Sure.

Q: You went to work at the grocery store?

A: Yes.

Q: You didn’t go see a doctor then?

A: No.

Q: You talked with your friends at work about the accident?

A: A few.

Q: You worked a full day that day?

A: Yes.

Q: Later that day you decided to telephone a medical clinic?

A: I did.

Q: You then made an appointment to see a doctor three days later?

A: Yes.

Inconsistent conduct that reduces the credibility of witnesses and their action or inaction may also be established through a showing of what a reasonable witness should have or could have done. A witness may fail to do what a responsible person should have done or what a reasonable person could have done. These failures give rise to impeachment inquiries that show the witness to have acted irresponsibly or unreasonably under the circumstances. The witness is held to this common sense standard: how a responsible person would have acted and what a reasonable person could have done.

Example:

In a real estate leasing dispute, the plaintiff bookstore lessee sues the defendant lessor for breach of the lease term that required the lessor to maintain the commercial property in reasonable repair. A water leak in the roof damaged the book inventory of the lessee. Ms. Randolph, the lessor, claims Mr. Hearst, the bookstore lessee, failed to timely notify her when he initially noticed the leak before it got worse and damaged the book inventory.

Q: Mr. Hearst, you first noticed the water leak in the ceiling on April 17, correct?

A: I did.

Q: You placed a pail under the leak, correct?

A: Yes.

Q: You didn’t notify Ms. Randolph of the leak at that time, did you?

A: I didn’t. It didn’t seem like much of a problem then.

Q: The pail filled up daily with water from the leak?

A: Yes.

Q: And you emptied the pail every day?

A: Yeah.

Q: The pail held about two gallons of water when filled?

A: About that.

Q: By the week’s end, you emptied over 12 gallons of water?

A: About that much.

Q: And you still had not notified my client, Ms. Randolph?

A: I had not.

Q: You decided not to notify her?

A: I was busy.

Q: You could have phoned her?

A: Perhaps.

Q: You could have texted her?

A: I’m not sure I had her cell phone number.

Q: You could have emailed her?

A: Yeah.

Q: You chose, instead, not to notify her, right?

A: Well, it was a busy time.

Q: The next week, water was still leaking from the ceiling?

A: It wasn’t getter any better.

Q: And you had to empty the pail several times that week?

A: I recall doing that.

Q: And you still failed to notify Ms. Randolph?

A: I wouldn’t say it was a failure.

Q: You decided not to contact her?

A: I did not contact her then.

Q: That was your choice: not to tell her about the leak?

A: I guess I didn’t tell her then.

Q: You know you didn’t notify her then?

A: That’s right. I did not.

F. Criminal Record

A witness may be impeached by introducing a prior criminal conviction of that witness. Federal Rule of Evidence 609 and similar state rules determine the type of criminal convictions that may be used to impeach and establish the foundation to admit evidence of a criminal record. In general, convictions for a crime of fraud, dishonesty, false statements, or felony convictions (convictions of crime punishable by a term in excess of one year) may be used if the conviction or the release from confinement occurred within ten years from the date of the present case. Convictions may be inadmissible if their unfairly prejudicial impact substantially outweighs their probative value. The fact that a witness has been arrested or convicted of misdemeanors or lesser offenses is usually inadmissible as a basis for impeachment.

Most jurisdictions allow all witnesses to be impeached through cross-examination questions revealing criminal convictions, but some jurisdictions permit only party witnesses to be impeached by prior convictions. Questions may be asked of the witness that reveal the crime involved, type of conviction, date and location of the conviction, and the sentence imposed. Some jurisdictions do not allow witnesses to be cross-examined in regard to their prior convictions and only permit impeachment to be proven through a certified record of the conviction.

Cross-examination questions cannot usually delve into the facts or details of the crime to avoid unfair prejudice. Ordinarily, direct or redirect examination questions may be asked of the witness to explain the circumstances of the crime or to reduce the impact of the conviction and the negative effect on the credibility of the witness. If the witness denies committing the crime, the cross-examiner can introduce extrinsic evidence, typically a certified copy of the judgment of conviction.

G. Untruthfulness

Evidence relating to the untruthfulness of a witness may be introduced against that witness during cross-examination. Federal Rule 608(b) and similar state rules provide the decision maker with discretion to permit a witness to be cross-examined regarding specific instances of misconduct that relate to the untruthfulness of the witness. If allowed, the cross-examiner may ask leading questions which show the witness has committed relevant and material acts establishing an untruthful character.

Example (Employment Dispute):

Q: Mr. Gandalf, you have lied when you applied for jobs, haven’t you?

A: I’m not sure what you mean.

Q: Three years ago, you applied for a job with Equilaw, correct?

A: Yes.

Q: You filled out an application form for a job with Equilaw?

A: Yes, I did.

Q: On that application form, you wrote that you had five years experience in human relations, right?

A: So what.

Q: You didn’t have any experience in human relations, did you?

A: Not necessarily in that type of job.

Q: What you wrote on the Equilaw application was untrue?

A: I didn’t have that experience.

Q: That statement was a lie, was it not?

A: It was incorrect.

Q: Two years ago, you applied for a job with the Fellowship of the Rings?

A: Yes.

Q: You interviewed with the human resources director there?

A: I believe so.

Q: You told the director you previously worked for Equilaw?

A: I may have said that.

Q: Equilaw never hired you?

A: I never worked there.

Q: That statement you made to the Fellowship of the Rings director was untrue?

A: Yes.

Q: That statement was a lie?

A: Yes.

Evidence of the untruthful character of the witness may be introduced through witnesses called to testify on direct examination, as explained in Sections 9.5(C) and 7.10(D). These witnesses may be cross-examined like any other witness, and they may also be asked questions about specific acts of truthfulness by the witness who is being impeached. Further, to contradict the testimony of these impeaching witnesses, other witnesses may testify on direct to the reputation for truthfulness of the witness who is being impeached. These witnesses may also be cross-examined like other witnesses, and may be asked questions about specific instances of untruthfulness by the witness.

These situations infrequently occur. The information needed to establish the untruthful character of a witness is seldom available. Even if the information is available, it may be inadmissible because it is unfairly prejudicial or collateral to the issues of the case. Further, the tactic may backfire, because the fact finder may perceive the attack to be unfair and unrelated to the issues of the case.

Example:

A witness testifies on direct examination that a party has a reputation for truthfulness.

Q: Did you know the witness lied in the past to employers?

A: No, I didn’t know that.

Q: Did you know he had lied to Equilaw when he falsely told them he had five years of experience in human relations?

A: No.

Q: Did you know he lied to the Fellowship of the Rings when he told them he had worked for Equilaw?

A: I did not.

H. Refreshing Recollection

There are situations when the cross-examiner wants to prove a fact and will prefer to refresh the recollection of the witness rather than impeach. This may occur when the witness is not fabricating information but has made a mistake or cannot remember an event. Refreshing recollection can be accomplished by showing the past statement to the witness. If a witness on cross-examination forgets a fact the cross-examiner wants to establish affirmatively, it will be more effective for the advocate to refresh the recollection of the witness through a prior statement. The cross-examiner may use a leading question to introduce the answer or may display to the fact finder and witness the source of the previous statement, which may be more effective.

Example:

Q: On direct examination, you testified that the Forum arbitration clause in the poetry contract was signed on November 17?

A: I believe so.

Q: Do you now recall that you signed the arbitration clause on October 17?

A: No, it was November.

Q: I show you Exhibit 20, the original of the Forum clause. Please look at the bottom of the page.

A: I see it.

Q: You did sign the arbitration agreement on October 17?

A: Apparently.

Q: October was the month you signed, Ms. Paige?

A: Yes.

Impeachment with Prior

Inconsistent Statements

A. Impeachment Preparation

The credibility of a witness may be diminished on cross-examination by the use of prior inconsistent statements. To be used on cross, prior statements must be inconsistent or contradictory. The obvious point to be made is that the witness provided testimony on a previous occasion that was significantly different from the direct examination testimony. Effective cross-examination establishes and emphasizes the difference between the previous inconsistent statement and the testimony at the trial or hearing.

Testifying witnesses may be impeached only with prior statements they made. A witness cannot be impeached with past statements made by others. Witnesses can only be held accountable for inconsistencies in their own conflicting stories. The loss of credibility arises from the fact that the witness has given different responses at different times about the same event. Contrary statements by other witnesses can reduce the credibility of another witness, but these statements cannot be used to impeach that other witness with a prior inconsistent statement.

The cross-examiner has to be very familiar with the prior statements so they can be quickly located during cross-examination. The statements need to be easily available so counsel can access them. An LLM program that contains previous statements of a witness can be used to search for inconsistencies. See §§ 9.2(B) & 9.3(A).

B. Stages of Impeachment

The use of prior inconsistent statements usually includes four stages.

1. Reaffirm the Direct Testimony

The cross-examiner commits the witness to the direct examination testimony by having the witness repeat the testimony to reaffirm the evidence. This ought to be done in a way that does not unnecessarily alert the witness to the cross-examiner’s intentions. Direct examination testimony that differs from a prior inconsistent statement should be selected. Precise questions should be asked which restate as exactly as possible the direct examination testimony. The cross-examiner should avoid asking questions that paraphrase or improperly summarize the testimony to avoid a disagreement with the witness. Repetition of the direct testimony prevents the argument that there was no inconsistency, reduces the ability of the witness to explain away some ambiguity in the testimony, and highlights the contrasting answer.

2. Describe the Prior Circumstances

The cross-examiner can then lead the witness through a series of questions describing the circumstances and type of prior inconsistent statement. These questions establish the date, time, place, and setting of the previous statement. If the fact finders are to believe that the prior inconsistent statement is accurate, questions that establish the reliability of the past statement need to be asked.

Some prior inconsistent statements are admissible as substantive proof. Federal Rule of Evidence 801(d)(1)(A) provides that a prior inconsistent statement made under oath at a legal proceeding is not inadmissible hearsay but is substantive evidence. Some states provide that other past inconsistent statements may also be considered substantive evidence. If the cross-examiner does not want the fact finder to believe that either statement is true, then questions that establish the reliability of the prior statement need not be asked.

The Federal Rules of Evidence and similar state rules no longer require an attorney to call the attention of the witness to the circumstances of the prior inconsistent statement. However, strategic considerations usually mandate such an explanation. These questions explain the circumstances of the previous statement, highlighting what happened and the effect of the inconsistent statements. These background questions also reduce the opportunity of the witness to explain away the prior statement, emphasize the importance of the mistake, and further increase the anxiety of the witness. There are no required number of questions that should be asked to establish the circumstances. The case, the witness, the previous inconsistent statement, and the purpose of cross-examination determine how many and which questions will be asked.

The familiarity of the fact finder with the circumstances of the prior statement also determine the extent of these questions. In a jury trial, the jurors may need to hear details regarding the circumstances supporting the reliability of the prior statement. In other cases, judges, arbitrators, and ALJs will understand the reliability of the circumstances. For example, if a deposition is the source of the prior statement, the jurors will need to hear the details of the deposition process, whereas a professional decision maker will know about the reliability of deposition procedures.

3. Introduce the Prior Inconsistent Statement

The cross-examiner then introduces the previous inconsistent statement. Usually, the most effective way is to read the inconsistent statement to the witness, while the witness reads a duplicate copy silently along, and have the witness admit making it. Another way to introduce the statement is to have the witness read it aloud. The problem with having a witness read a past statement is that the witness may not read it with the same degree of emphasis as the cross-examiner.

Opposing counsel ought to be told the source of the statement, and, if from a deposition or sworn statement, the page and line number. The prior inconsistent statement need not be marked (unless required) if the document itself is not being offered as evidence. The reading of the previous statement and the verbal affirmation by the witness of the answer is typically the evidence offered. See Fed. R. Evid. 615(a). If the advocate prefers to have the document marked and introduced, counsel may do so.

4. Obtain a Response to the Inconsistent Statement

The cross-examiner ordinarily asks if the witness did indeed make that prior inconsistent statement. And, usually a witness will have to admit to making the inconsistent statement. The direct examiner will most likely have instructed the witness to admit to the statement. The direct examiner may even have covered it on direct, or plans to have the witness explain it on redirect. Impeachment questions should not be asked on cross which allow the witness an opportunity to explain away the inconsistency.

If the witness admits making the statement, the impeachment process is concluded. If the witness does not admit the prior inconsistent account, the cross-examiner must prove that the statement was made. If the witness denies making the statement, or cannot recall making it, the cross-examiner will need to establish that the witness made the statement. Usually, extrinsic evidence is introduced to establish the inconsistency. The type of extrinsic evidence depends upon the type of statement made. The following sections describe the various types of prior inconsistent statements and the necessary extrinsic evidence.

It is highly unlikely that witnesses will deny they made a statement appearing in a deposition or other transcript, or in an email or text message they composed, or which appears on a video recording. Nor will they commonly deny that their signature does not appear on a written document. A witness may attempt to be evasive and say the transcript may be inaccurate or the written account incomplete, but further questioning will usually be successful in having the witness admit that the prior statement is indeed accurate and authentic.

Example:

Q: You told us you saw a fishing boat and a pontoon boat before the collision?

A: Yes that’s true.

Q: Are you sure you saw both boats before the crash?

A: Absolutely.

Q: Do you remember when Investigator Lestrade visited with you the day after the accident?

A: Yes.

Q: That was at your home, wasn’t it?

A: Yes.

Q: He asked you some questions, didn’t he?

A: Yes.

Q: And he wrote your responses down in a statement?

A: Yes.

Q: Investigator Lestrade gave you a chance to read that statement, didn’t he?

A: Yes, he did.

Q: And you did read it?

A: Yes.

Q: You signed that statement, didn’t you?

A: Yea.

Q: You signed it because it was true and correct?

A: Yes.

Q: You wouldn’t have signed it if it wasn’t true and correct, would you?

A: No.

Q: I show you Exhibit 9, your statement that you signed.

A: I see it. . .my signed statement.

Q: Now, in about the middle of this statement you told Investigator Lestrade: “I only saw the fishing boat before the crash, and not the pontoon.” Do you see that?

A: That’s what it says.

Q: And that is what you saw then—only the fishing boat?

A: Yes.

This method of impeachment repeats the direct examination. An alternative method accomplishes the same thing but does not require that the direct examination be repeated. Repeating the direct examination may over emphasize that information. The following alternative technique avoids highlighting the direct.

Example:

Q: You only saw the fishing boat just before the accident on the lake, didn’t you?

A: No.

Q: Didn’t you tell Investigator Lestrade you only saw one boat?

A: I’m not. . .maybe.

Q: Well, you do recall the day after the accident you told Investigator Lestrade you only saw a fishing boat before the collision?

A: I talked to an investigator after the accident.

Q: And you gave him a statement?

A: Yes.

Q: He wrote it down?

A: Yes.

Q: You read it?

A: Yes.

Q: It was true?

A: Yes.

Q: You signed it?

A: Yes.

Q: I hand you Exhibit 9. That is your signature on the statement, correct?

A: Yes.

Q: This statement says: “I only saw the fishing boat before the crash, and not the pontoon.”

A: Yes, I see that.

Q: That is what you saw then, that day on the lake?

A: Apparently. . .Yes.

C. Prior Inconsistent Statements

The nature of impeaching material varies from significant to minor. Section 9.7(A) explained why impeachment efforts should be made only with substantial, material evidence. If a witness testifies at a deposition that a helicopter was a “light green” color and at the trial or hearing states the helicopter was “green,” it may be ineffective to impeach the witness on this minor discrepancy, unless the precise color of the craft was significant. Minor inaccuracies will not adversely affect the credibility of the witness unless there is a pattern or a significant number of these inaccuracies. Fact finders understand that witnesses do not have perfect recall.

D. Introducing Prior Statements

The direct examiner can request that additional portions of the prior statement be introduced contemporaneously with the impeaching part of the statement to prevent a cross-examiner from introducing selective facts out of context. Federal Rule of Evidence 106 and similar state rules permit an opposing attorney to request that contemporaneous and relevant portions of the statement be promptly admitted. See § 9.7(C). This rule of completeness places multiple prior statements in proper perspective and may reduce or eliminate a harmful assessment.

Types of Prior Inconsistent Statements

There are several major types of previous inconsistent statements:

• Prior statements under oath.
• Discovery responses and verified pleadings.
• Composed statements.
• Verbal statements.
• Omissions.

The following sections demonstrate examples of each of these types of past inconsistent statements and the extrinsic evidence that is necessary to prove impeachment if the witness denies the prior statement. LLM-backed tools can help craft impeachment questions from investigative materials, discovery responses, witness statements, and other evidence. See §§ 9.2(B) & 9.3(A).

A. Statements Under Oath

Prior statements made under oath include testimony provided at depositions, previous trials, motion hearings, preliminary hearings, grand jury hearings, inquests, arbitrations, and administrative hearings.

Example:

Q: Ms. Kostrzewa, you testified on direct examination that you read the directions on the Fludrx pill box before you took your first pill, correct?

A: Yes.

Q: You further testified that you could not read the warnings on the label that explained side effects because the print was so small, right?

A: Yes.

Q: That is your testimony under oath today before this jury?

A: Yes, that is what I said.

Q: Do you recall that you previously testified under oath regarding the facts of this case?

A: Yes, I remember.

Q: You remember we call that procedure a deposition?

A: Yes.

Q: There was a reporter there taking down your statements just like there is a court reporter here today?

A: Yes.

Q: You took an oath and promised to give truthful answers?

A: Yes.

Q: You recall that your attorney was there with you?

A: Yes.

Q: And you recall that I was there?

A: Yes.

Q: Before that deposition, you had an opportunity to talk with your attorney about the deposition?

A: Yes.

Q: You had an opportunity to prepare for the deposition and recall what all happened in this case?

A: Yes.

Q: That deposition occurred a few months after you recovered from your illness?

A: Yes.

Q: Those events were fresh in your mind at the time of your deposition?

A: Yes.

Q: During that proceeding, questions were asked of you and answers were given by you just like today in court?

A: Yes.

Q: At the beginning of the deposition you were told if you didn’t understand a question to say so and it would be rephrased?

A: Yes.

Q: Some of the questions and answers at the deposition related to what happened before and after you took Fludrx?

A: Yes.

Q: You answered those questions at the deposition as best you could, correct?

A: Yes.

Q: You gave complete and honest answers?

A: I tried.

Q: You did not withhold any information, did you?

A: No.

Q: Ms. Kostrzewa, I’m handing you a document. Please look at it. Is this a transcript of your deposition?

A: Yes.

Q: Please turn to page 69 and look at line 10. You were asked this question then: “Did you read the directions on the Fludrx pill box at any time?” And your answer was: “I can’t recall.”

A: I see that.

Q: Next you were asked: “Did you read the Fludrx warning label before you took your first pill?” Do you see that?

A: I do.

Q: And your answer to that question was: “I’m not really sure.”

A: Yes.

Q: The next question you were asked was: “You don’t know whether you read the directions or the warning label before you took your first pill?”

A: That’s what it says there.

Q: And your response was: “I suppose I could have read it when I brought it home from the pharmacy.”

A: Yes.

Q: Those were your answers a year ago, under oath?

A: It appears so.

Q: And those are your answers?

A: Yes.

Q: Do you recall after the deposition going to your attorney’s office to read your deposition transcript?

A: Yes, I recall that.

Q: And you read over the answers that you gave to make sure they were correct?

A: Yes.

Q: After reading your deposition you signed the deposition?

A: Yes.

Q: You signed it because it was correct?

A: I did.

Q: Your signature appears on the last page of that transcript, correct?

A: Yes, that’s my signature.

The redirect examination can include the direct examiner’s introduction of any segment of the deposition that helps bolster the accuracy of the direct testimony, reduces the impact of the prior statement, explains what the witness meant to say during the deposition, or shows that cross-examining counsel used a response out of context.

Example (Continued):

Judge:

Redirect, counsel?

Direct Examiner:

Q: Yes, your Honor. Ms. Kostrzewa, please turn to page 215 of that same deposition, and look at line 8. This question was asked of you later in the deposition and it reads: “Do you remember when you may have read the Fludrx directions and warning label?” Do you recall that question?

A: Yes.

Q: Would you please read from your deposition the answer that you gave?

A: I said, “Now that I think about it, I wouldn’t have taken the pill without first reading the instructions.”

Q: That was your testimony a year ago, under oath?

A: Yes.

Proof of Prior Testimony

If a witness denies giving a recorded answer at a deposition or at a hearing, the statement may be proved by offering that portion of the transcript into evidence. Counsel can obtain a certified transcript for use in the case.

There are three ways to place a deposition transcript into evidence.

1. The judge, arbitrator, or ALJ may take notice of the transcript that appears in the case and receive it in evidence. Prior testimony that appears in a judicial or other proceeding may be proved by introducing a certified copy of the transcript of that portion of the proceeding containing the testimony. The clerk of court or other administrator can provide a certified copy of the transcript. The decision maker may then take judicial, arbitral, or administrative notice of the exhibit.

2. The proffering attorney may authenticate the document, overcome any hearsay problems, and establish the transcript as a certified document. The transcript of the deposition, which contains an attestation by the court reporter, is self-authenticating under the rules of evidence, and a duplicate is also self-authenticating. See Fed. R. Evid. 902(1), 902(4), 1001(3), & 1001(4). Hearsay problems may be overcome in one of two ways. If the deponent is an adverse party, the transcript can be offered as a party admission. See Fed. R. Evid. 801. If the deponent is a non-party, the transcript may be offered solely for the limited purpose of impeaching the witness (not for the truth of the matter asserted), rendering the transcript non-hearsay. See Fed. R. Evid. 801(c). If the witness is a non-party and the transcript is offered as substantive proof in addition to its impeachment value, the transcript can be offered in evidence as a public record exception. See Fed. R. Evid. 803.

3. In some cases, the reporter may have to be called as a witness to authenticate the transcript by establishing that the reporter is a qualified reporter, that the reporter was present at the proceeding, and that the reporter prepared a verbatim record of the testimony.

The transcript should usually be marked as an exhibit and introduced in evidence. The portion of the transcript that contains the prior inconsistent statement ought to be read to or by the fact finder.

B. Discovery Responses

Prior inconsistent statements may appear in answers to interrogatories, document productions, requests for admissions responses, verified pleadings, affidavits, declarations, and other legal documents signed by the witness.

Example:

On direct examination, a party testifies that he cannot remember whether he watched a video recording. An answer to an interrogatory states he did so.

Q: Mr. Kreskin, you testified on direct examination that you did not see the Copperfield YouTube video, is that correct?

A: Yes.

Q: You do recall that as part of this lawsuit, you received some written questions from us?

A: I think so.

Q: Those questions are called interrogatories?

A: Yes, I remember them.

Q: You, with the assistance of your attorney, provided written answers to those questions?

A: Yes.

Q: You swore under oath that your answers were true?

A: Yes.

Q: Do you recall question No. 5 which asked, “Identify all videos you watched relating to the Copperfield performance.”?

A: That sounds familiar.

Q: Your sworn answer to that question was, “I recall watching parts of the Copperfield YouTube extravaganza.”

A: If that’s what it says.

Q: That is what you stated in writing under oath at that time?

A: Yes.

Q: You discussed your answers with your attorney?

A: Yes.

Q: You understood that you had to provide complete and accurate answers?

A: Yes.

Q: And, that’s what you did?

A: Yes.

Proof of Discovery Responses and Other Legal Documents

Discovery responses and other sworn documents that appear in the case can be proved by introducing those materials. Legal documents that contain the statements may be proved by introducing the originals of those documents, which are usually in the possession of counsel, who commonly agree to their authenticity.

C. Composed Statements

Written and printed statements include documents that have been created, signed, agreed to, or approved by a party. These include: accounts given to a police officer or investigator; notes handwritten by the witness; printed statements initialed by a witness; affidavits from judicial, administrative, or arbitration proceedings; memoranda prepared by the witness; personal or business records; and emails, texts, and other social network communications sent by the witness.

Example:

The witness has testified during direct examination that the defendant was not present at a meeting on December 6. In a past memorandum the witness prepared and signed, the witness stated the defendant was present at the meeting.

Q: Ms. King, you have told us that the defendant, Dr. King, was not present during that December 6 meeting, correct?

A: That’s right.

Q: You remember the other two people who were there but not the defendant?

A: He was not there.

Q: After that meeting on December 6, you prepared a summary memo?

A: I may have.

Q: It was your normal business practice to prepare a memo after a meeting that summarized the meeting?

A: Yes, it was.

Q: And after the December 6 meeting, you prepared such a memo?

A: That is likely.

Q: I hand you Exhibit No. 6. Your name appears as the author of this memo, right?

A: Yes.

Q: It’s dated December 6?

A: Yes.

Q: The subject line refers to the meeting on that day?

A: That’s what it reads.

Q: The memo summarizes a meeting that occurred at 3:00 p.m. that day?

A: That’s the date and time.

Q: Exhibit No. 6 is the memo you prepared after the meeting?

A: Yes.

Q: In the first paragraph of that memo, you identified the individuals who were present at the meeting?

A: Yes.

Q: You state in Exhibit No. 6: “Present were Ralph Abernathy, Rosa Parks, and Martin Luther King, Jr.”

A: Yes.

Q: In that memo you identified Dr. King as being present at that meeting?

A: It appears so.

Proof of Written, Signed, Composed, or Sent Statements

If a witness denies making a prior statement, the statement can be proved by calling any witness who can identify the writing, signature, composition, or creation of the document. The questions are the same as those needed to authenticate a document. See § 8.6(B).

D. Verbal Statements

Any oral statement a witness has made to anyone may be used as a source for impeachment. These include verbal statements made to investigators, police officers, business personnel, family, friends, and any person at any time at any place. The oral account can be proven by extrinsic evidence.

Example:

A witness to a robbery was interviewed by a detective and told the detective that she did not see the person who robbed the bar. The prosecution called this witness and on direct examination she identified the defendant as the robber.

Q: On direct examination, you testified the defendant was in the saloon?

A: Yes.

Q: You identified the defendant as the robber in the saloon?

A: Yes.

Q: You believe it was the defendant who was in the saloon the day it was robbed?

A: Yes.

Q: Ms. Kitty, you do recall talking to Marshal Dillon shortly after the robbery?

A: Yes.

Q: Marshal Dillon asked you what you saw?

A: I think so.

Q: You wanted to help the Marshal find the robber?

A: Yes.

Q: You wanted to tell Marshal Dillon everything you knew?

A: Yes.

Q: Marshal Dillon was taking notes when he talked to you?

A: I’m not sure.

Q: Ms. Kitty, at that time you told Marshal Dillon that you did not see the person that robbed the saloon?

A: I don’t recall saying that.

Q: Ms. Kitty, you told Marshal Dillon that you didn’t know who robbed the saloon?

A: I don’t believe I said that.

Proof of Oral Statements

If the witness denies making the prior oral statement, the previous oral statement can be proved by calling a person who can testify that the witness made the past statement.

Example (Continued):

Q: Marshal Dillon, did you speak to Ms. Kitty shortly after the robbery?

A: Yes.

Q: Did she say anything about the robbery?

A: Yes.

Q: What did she say?

A: She told me she didn’t see the person who robbed the saloon.

Q: Anything else?

A: She also said she didn’t know who the robber was.

E. Impeachment by Omission

A common method of impeachment involves the cross-examination of a witness regarding a matter testified to on direct examination that does not appear in a prior statement but that should have appeared. These comprise material statements that the witness could have added, that a reasonable person would have added, or that are a regular or expected part of the overall statement. Witnesses frequently fail to include all important details in prior statements, and this approach identifies and highlights the omitted portions.

A material omission is significant because there is no record of this account in any report, declaration, or testimony. The absence of this important information can be revealed on cross-examination and be used to reduce the credibility of the witness. Common sources of prior statements that may omit significant facts include: emails, social network communications, reports by police officers, memoranda by investigators, deposition testimony, affidavits, and other documentary sources.

The impeachment process by omission is similar to impeaching with a prior inconsistent statement except the omission does not appear in the prior statement. A witness who testifies to an important matter that does not appear in a previous statement can be impeached by establishing the absence of this material matter from the previous statement. The impeachment process can establish that the past statement was made at a time when the events were fresh in the mind of the witness and can suggest that the witness may be adding facts or making things up because the current account was not included in the prior statement. This process is a subtle form of impeachment because the cross-examiner is establishing the nonexistence of a fact or opinion.

Example:

In a business fraud arbitration, the plaintiff, Mr. Hardy, has testified on direct examination that the defendant said, “I’m sorry I did it. I didn’t mean to defraud you.” At a previous hearing, the plaintiff never testified the defendant said those words.

Q: On direct examination, you stated the defendant, Mr. Laurel, said to you at the end of your last business meeting, “I’m sorry I did it. I didn’t mean to defraud you.”

A: Yes, that’s what he said.

Q: Your testimony is the defendant made that statement to you during your last meeting with him?

A: Yes.

Q: Now, Mr. Hardy, you recall you testified at a previous hearing in this case?

A: Yes.

Q: That was a preliminary hearing involving the appointment of a receiver to audit your business records?

A: That’s right.

Q: Arbitrator Anderson was there presiding at that hearing, as she is today?

A: Yes.

Q: You recall that during that hearing I asked you this question: “What else did Mr. Laurel say before you left the meeting?”

A: I believe so.

Q: Your answer was: “He said ‘I’m sorry this all happened.’ And then he left”?

A: I believe so.

Q: At no time during that hearing, did you say that he said he defrauded you?

A: I don’t believe I did then.

Example:

On direct examination, a police officer testified he found a cell phone on the defendant with the victim’s information on the contact list. That statement does not appear in his police report.

Q: Detective McNulty, after you arrested the defendant, you searched his pockets?

A: Yes.

Q: On direct examination, you said you found a cell phone in one of his pockets?

A: Yes.

Q: You also told us the victim’s name and phone number were on the contact list of that phone?

A: Yes.

Q: And you are sure about that?

A: Yes.

Q: After you arrest someone you prepare a report?

A: Yes.

Q: You have been trained on how to prepare such a report?

A: Yes.

Q: You were trained to include all important facts?

A: Yes.

Q: You were trained to prepare a complete and accurate report?

A: Yes.

Q: After you arrested the defendant, you prepared a report?

A: Yes.

Q: You wanted the report to include all important matters?

A: Yes.

Q: And you wanted it to be complete and accurate?

A: Yes.

Q: Let me show you your report. This is your report, correct?

A: Yes.

Q: After you completed the report, you read it over?

A: Yes.

Q: And after reading it, you signed it?

A: Yes.

Q: One of the purposes of this report is that the prosecutor relies on it to determine what happened, true?

A: Yes.

Q: Another purpose is to help you refresh your memory before testifying at trial?

A: Yes.

Q: You read this report before testifying here today?

A: I looked it over.

Q: You did so to help you recall what you did that evening?

A: In part, yes.

Q: Detective McNulty, nowhere in this report did you state that you found a cell phone in the defendant’s pocket?

A: That’s not in the report.

Q: Nowhere in this report did you state that you found a cell phone anywhere on the defendant?

A: That’s not in there.

Q: Nowhere in the report did you state that you found a cell phone with the name and phone number of the victim on the contact list?

A: That’s not in the report either.

Proof of Omissions

Once the witness admits the information is missing, the impeachment is completed and the omission has been proved. If the witness denies the omission, the past statement needs to be introduced to impeach the witness. Omissions can be proved by introducing the prior statement using the same methods described in the previous subsections.

Completion of Cross-Examination

A well prepared cross will produce responses that both support the case of the cross-examiner and reduce the favorable impact of the direct examination. It’s a wise tactic to begin the cross with a significant point and to conclude the examination with an important point. This approach makes the beginning and ending of the examination more memorable and compelling. The use of Gen AI and LLM programs can suggest and enhance cross-examination areas and questions. See §§ 9.2(B) & 9.3(A).

After cross has been completed, counsel has an opportunity to assess whether any areas were overlooked that may be covered or supplemented by additional evidence that can be offered by other witnesses or documents. Summation will provide the occasion to summarize, explain, and highlight the points made on cross-examination.

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1. Some advocates refer to these efforts as “destructive” cross-examination. ↑