The Fundamentals of Cross Examination

By Dror Bikel, Esq. of Bikel & Mandarano, LLP

“Cross-examination, the ‘greatest legal engine ever invented for the discovery of truth.’” Justice Byron White – California v. Green, 399 U.S. 149, 158 (1970), quoting 5 Wigmore Section 1367.

We’re in the persuasion business

Facts persuade

A fact is something that occurred or is actually the case. Something that is verifiable

Legalisms – “she was negligent” or conclusions “He is a bad parent” do not persuade

Instead of relying solely on the cross-examiner’s own witnesses to support a theory of the case, the skilled trail attorney views the opponent’s witnesses as equal opportunities to develop her theory of the case.

The cross-examiner is not trying to base the cross-examination on emotion, presence, and oratory. She is not trying to be louder, more demonstrative, more fearsome in the courtroom. The cross-examination should be 100% percent about teaching the cross-examiner’s theory of the case to the fact-finder.

Importance of Primacy

Importance of Recency

Importance of Repetition

Looping – An Important Technique to Ensure Repetition

Step 1 – through a leading question establish a desired fact or phrase

Step 2 – Use the fact or phrase in the body of the next question, without re-asking the fact or phrase

Step 3 –Attach the looped fact to a safe fact in the second question.

Example 1 Q: The car was speedingA: YesQ: The speeding car

crossed the intersection.A: Yes

Example 2Q: What happened to Cindy was an incredibly terrible eventA: YesQ: After you learned of this incredibly terrible event, you called your supervisorA: Yes

Three Rules of Cross Examination1. Ask Leading Questions Only

Suggest an answer in the question. The question should be phrased as a short declarative statement

Example: “Your shirt is blue, correct?”

Non-Leading Questions is a question that does not suggest an answer.

Example: “What color is your shirt?”

This is the fundamental distinction between direct and cross-examination. It is the absolutely critical advantage that the cross-examiner has, and it must always be pressed.

Leading questions allow the crossexaminer to become a teacher.

Consider the following: How do you feel about eating ice cream? Do you enjoy eating ice cream? You like to eat ice cream?

-The first question is non-leading. It’s an open ended question

-The second question is leading, but it does not declare the answer

-The third question is the most suggestive of an answer. It declares the answer.

The first question is non-leading. It’s an open ended questionThe second question is leading, but it dies not declare the answerThe third question is the most suggestive of an answer. It declares the answer.

Begin each question with a pronoun if possible. “You” or “We” or “He/She” or “They”

Questions that begin with Who, What,

When, Where, how, Why, or Explain. These words invite open ended answers –

the plague of the cross-examiner

Vague, equivocal or subjective words do not count as facts

Q: You caught the red ball “well”?Note: “well” is subjective

A: What does “well” mean. I don’t know – I caught it.

Same question Q: You caught the ballA: YesQ: You caught the red ballA: YesQ: You caught the red ball with one

handA: YesQ: You caught the red ball with one

hand while runningA: YesQ: You caught the red ball wellA: Yes

2. One New Fact Per Question 3. Break the cross-examination into a series of logical progressions to a specific goal

The goal should be factual, not conclusory. Build the story around your factual goal by asking one leading question at a time, containing one new fact per question.

The Chapter Method of Cross Examination

Each chapter is an individual theme that supports a theory of the case. Each chapter has its own beginning and its own end.

The chapter method gives the cross examiner control of the topics of the cross examination. Chapters help to break the case down to understandable parts.

Draft chapters backwards

Build a story around each chapter.

Must Read:

Cross-Examination: Science and Techniques, by Larry S. Pozner and Roger Dodd

The How-to-Win Trial Manual, by Ralph Adam Fine