Cross Examination Techniques
Tuesday, April 04, 2006
A. Control in Cross-Examination
No skill of the trial advocate epitomizes adversarial confrontation as dramatically or significantly as that of cross-examination. An ancient legal maxim states that there is never an outcome of a cause contested that is not mainly dependent on the advocate's skill in cross-examination.
Over the centuries of testing the veracity of witnesses by cross-examination, from Socrates' masterful questioning of his accuser Miletus through the trials that fill courtrooms today, the skills required of the advocate have developed into principles that can be learned, practiced, and mastered by the diligent advocate. The timeless nature of the adversarial skills required of the cross-examiner was recognized by the eminent New York trial lawyer, Francis Wellman, 90 years ago in his excellent treatise on the Art of Cross-Examination: It requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self-control; power to read men's minds intuitively, to judge their characters by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject matter itself; and extreme caution; and, above all, the instinct to discover the weak point in the witness under examination.1
Consequently, cross-examination is the most difficult of the adversarial skills to acquire. Once mastered, however, it is also the most significant skill, since it is from the crucible of cross-examination that truth most often emerges. As with all significant skills, mastery of the basic principles and techniques must combine with hard-earned experience to mould the neophyte into a seasoned cross-examiner. The purpose of this chapter is to present an overview of several principles and techniques of cross-examination that have been passed to our generation from the master advocates who have preceded us.
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B. Silent Cross-Examination
A. Control in Cross-Examination
No skill of the trial advocate epitomizes adversarial confrontation as dramatically or significantly as that of cross-examination. An ancient legal maxim states that there is never an outcome of a cause contested that is not mainly dependent on the advocate's skill in cross-examination.
Over the centuries of testing the veracity of witnesses by cross-examination, from Socrates' masterful questioning of his accuser Miletus through the trials that fill courtrooms today, the skills required of the advocate have developed into principles that can be learned, practiced, and mastered by the diligent advocate. The timeless nature of the adversarial skills required of the cross-examiner was recognized by the eminent New York trial lawyer, Francis Wellman, 90 years ago in his excellent treatise on the Art of Cross-Examination: It requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self-control; power to read men's minds intuitively, to judge their characters by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject matter itself; and extreme caution; and, above all, the instinct to discover the weak point in the witness under examination.1
Consequently, cross-examination is the most difficult of the adversarial skills to acquire. Once mastered, however, it is also the most significant skill, since it is from the crucible of cross-examination that truth most often emerges. As with all significant skills, mastery of the basic principles and techniques must combine with hard-earned experience to mould the neophyte into a seasoned cross-examiner. The purpose of this chapter is to present an overview of several principles and techniques of cross-examination that have been passed to our generation from the master advocates who have preceded us.
Top of Page
B. Silent Cross-Examination