Cross Examination - Strategies, tactics, & tips on how to effectively cross-examine a witness.

[00:00:00] Speaker 1: Hello, I'm Mark Curry, a retired trial court judge with more than 34 years of experience with working in the courtroom. In this video, I'm going to be talking about the topic of cross-examination. It is arguably one of the more difficult trial skills for trial lawyers to master, but in this video I'm going to be going over the fundamentals, the nuts and bolts of cross-examination, including how to prepare for it, some strategies and tactics of how to do it, and my own trial tips based on my years of experience working in the courtroom. And I think this video will be very helpful for law students learning trial advocacy and also for trial lawyers preparing for trial who want a refresher on the fundamentals of cross-examination. Let's get going. Good cross-examination can help win cases. In fact, during my career I've seen many cases where a lawyer does a great job on cross-examination, undermines the credibility of the witness, which helps win the case, both civil and criminal matters. However, there are some perils associated with it that you should take heed of before you contemplate and start thinking about cross-examination. I think it's worthwhile taking a few minutes to just see what some of the former experts in the area have said. John Henry Wigmore, who is the original author of a treatise of evidence, he was a professor of law, wrote, "Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it." Lewis Neisser, who was an author and also a former trial lawyer, wrote, "Cross is not a fishing expedition in which you uncover new surprises at trial. In cross-examination, as in fishing, nothing is more ungainly than a fisherman being pulled into the water by his own catch." Now the takeaway from these admonitions is that you should approach cross-examination cautiously and deliberately. And in a few minutes we're going to talk about preparation and having a strategy and a plan and that is the key to success. You need to know what you're doing, be prepared, and have a strategy and a plan and follow it. So let's take a moment and talk about preparation. One of my first trial tips should be obvious and that is that the lawyers who do the best on cross-examination are generally the most prepared. In this day and age of discovery, both in civil and criminal arenas, the days of the surprise witnesses are long gone. Through the the discovery statutes, prior to trial, you should know who your witnesses, who your opponent's witnesses are, the substance of their testimony, and that gives you a good start on how to prepare. Obviously in civil cases, many of the witnesses may have been deposed previously. So the first tactic and first strategy for good cross-examination for preparation is simply to collect and organize all the prior statements the witnesses ever made. And this might include in criminal cases statements to police officers, maybe eyewitnesses at the scene. Anything that the witness said in a prior statement should be collected and and be made available for your preparation. In civil cases, as I've mentioned, you have the benefit typically of a deposition. So you have that available to you. But there could be many other sources of witness statements, including statements to doctors at a hospital, ER nurses, police officers, as I've already mentioned. You basically want to know everything the witness has ever said prior to the day of trial. The next thing you should do is create an outline of all the prior statements and the proposed testimony and come up with a strategy or a plan of attack. And so what I mean by that is a good trial tip. And another trial tip is prepare a written outline of the questions to be covered during cross-examination. Trying to cross-examine on the fly is very difficult and often backfires. Every case should be prepared and tried with the closing argument in mind, including cross-examination. And the other thing is that's a good trial tip is that having the witness's prior statements available at your fingertips at trial and organized is important. And the reason for that is that if the witness were to deviate from the trial testimony, you have the prior statements right there at your fingertips that you can quickly go back to and find the passage and use that potentially to impeach the witness for maybe with an inconsistency. In civil cases, often big civil cases, the lawyers have the prior statements of the witness. For example, a lengthy deposition tabbed, highlighted, and maybe even with an index. So that every statement, every topic can be found quickly. And this is really the legwork that goes into preparation for cross-examination before you ever get to the courtroom. Now, so the bottom line is then, is that no cross-examination should ever begin unless there is a strategy or plan. Too often, in my experience, I've seen lawyers commence their cross-examination with seemingly no real plan or strategy. Some lawyers just cross-examine because they think, because they want to, or because they think they should. In a few minutes, we'll be talking about the idea that if there's nothing to be gained by the cross-examination, the lawyer should just say, "No questions, Your Honor," and move on. But some lawyers have a hard time saying those words. So when you're thinking up a strategy of how to cross-examine a particular witness, you can think of it this way. There are basically several important reasons why you may want to cross-examine a witness. One would be to undermine the credibility of the witness. Two might be to establish facts that are helpful to your case or harmful to your opponent's case. And three, the third reason to cross-examine a witness might be to help clarify what was said on the direct testimony. And again, the last bullet point here, again, if there's nothing to be gained, no questions, Your Honor. One important trial tip I'll give you right now is that it is as follows. A rehash of the direct testimony is not good cross-examination. What I mean by that, your strategy shouldn't be to just go back in and go over what the witness said on direct examination if it doesn't help you, or if it hurts your case, your strategy should be to only focus on very specific areas of what was said on direct that, like I just said, that undermines the witness of credibility, helpful to your case, harmful to your opponents, or makes helps clear something, clear up something. If none of those, if there's no, if there's nothing to be gained by the cross, again, no questions, Your Honor. So, in preparing again, is you have a witness and you know what the witness has said now. You've gone over and organized everything and you're, you're getting close to trial and now you need to come up with where, what areas you want to cross-examine the witness about. And so, a good way to think about it is, they're basically, in my view, four separate distinct areas that you might want to consider cross-examining a witness about that might help to impeach the witness. Now, I put up their evidence code section 780, and that is because in California, they've actually, um, in just, in a statute, made a laundry list of factors that jurors are told to consider when determining the credibility of the witness. And that might be a good place for you to look. Maybe others, uh, at jurisdiction have a similar list and their journey instructions that, that are told to the jurors. But when you're preparing, it's a good place to look to see if there's, what areas you feel might be fertile ground for cross. So, let me just quickly go through the four areas, um, that can be very, uh, good, good areas to cross on. One is perception and memory. So, basically, what you're doing here is, you're not calling, you're not really attacking the witness as a liar, or anything like that. You're really just attempting to show to the jury or to the court, if it's a bench trial, that the witness may have made a mistake, that their perception of the event was somehow skewed or wrong, or that their memory of the event, uh, is not accurate. As we all know, people observe things and see them differently. And so, memory perception, uh, is a very common fault of all witnesses coming into the courtroom. And you want to highlight that with your cross-examination. For example, um, you may want to ask the witness and cross the witness about their mental state. Um, and that might include where they, had they been using any drugs or alcohol at the time. In other words, were they intoxicated? Were they under stress? The age of the witness might matter. You know, if it's a very elderly person or some person that has mental or cognitive issues that might affect, um, memory and perception, that might be fertile ground for cross right there. Anything that would show a deficiency. One thing I want to just talk about here, kind of taking a side note, and I've noted, I'm calling it here, memory getting better, better. So if you're been a trial lawyer for very long, you would, you probably have seen this happen. And that is the witness takes the stand and previously they've given statements where they didn't remember things. For example, let's suppose they were deposed, um, a year before trial or six months. And during the depositions, they were asked very specific questions and may say, I don't remember. I don't recall or their memory is hazy. Now here they are at trial with the jury or the court if it's a bench trial. And suddenly there are their memory of very important detail seems to become incredibly improved. In other words, it appears as though their memory is getting better with time. Now, obviously this isn't generally true. And so this might be an area where you want to cross-examine the witness and say, isn't it true, you know, during your deposition, you said this or that or couldn't remember. And now your trial, you can suddenly remember the facts and you're pointing out to the jurors that the memory appears to be getting better. And really what you're really demonstrating is that the witness's memory isn't necessarily getting better. It says that they're now here and before the jury, they know it's a stake. They're very well rehearsed. And they're saying things they feel like they should say. They don't actually remember better than they did before. That's just something I've observed. Another area regarding perception and memory that you might want to cross examine on is physical conditions. And what do I mean by that? Distances, lightings, you know, often there might be questions about whether there was a street lamp or how far away was the witness from the event they saw. And as we get down a little more discussion, you'll see that's why I often recommend the use of aerial photographs or diagrams to have the pin the witness down about where they were, you know, were there any obstructions? You know, the witness may have said, uh, what I've seen a common thing happen is a witness will be asked on the stand, how far away from the intersection were you? And the witness will estimate, oh, you know, about 50 feet, maybe. And then you bring out the aerial photo that maybe has a diet, you know, shows all the exact dimensions. And you show through cross and use of the aerial photograph at the intersection of Google map or something that the witness was actually 150 feet away rather than 50. So you've undermined the witness's ability to perceive accurately there. So those, um, these are areas that you can cross-examine a witness regarding perception and memory. Now, a second area that can have good results for cross-examination has to do with bias or motives. Uh, you want to show a motive and often this has to do with relationships. Say for example, the plaintiff is the husband and the witness is the wife. Um, just by establishing that relationship might tend to show that her testimony is skewed and biased in favor of her husband. Um, also, um, motives, um, might show the witness is not being truthful. Um, one good motive that often comes up in civil trials is monetary, um, that the witness is getting paid or has some motive or incentive for testimony, uh, that may help skew their testimony. And what comes to mind is experts. I have a whole chapter dealing with the cross-examination of experts in my handbook that we'll talk about in a few minutes. Um, so showing a motive or a bias is a good area, fertile ground for cross-examination. A third ground, uh, for cross-examination, um, I call inconsistencies. And this is where you're showing the jury, jury that what the witness is saying now on the stand is differ, differs in some way from what the witness said earlier. And this is very common in a trial or a hearing that you'll have inconsistent statements, um, that the witness said, a, to a police officer may have said to a police officer, officer at the scene of an accident that she thought her light was green, but she wasn't sure. And now when she comes and takes the stand, she's positive. It was green. So there's an inconsistency, a changing, if you will, or a, uh, kind of, um, uh, an amendment of the, of their statement. So again, inconsistent statements can really undermine a witness's credibility. And that's one of the reasons you would cross-examine, cross-examine. Through the tactics we'll be talking about in a few minutes, you would have the witness admit that they made the earlier statements, pin them down of what was said earlier, and then confront them with the inconsistency of how now, um, they're saying, they said A and now they're saying B. So showing an inconsistency or inconsistent statement is a good way to undermine witness credibility. The last area I feel is important that you could use for cross-examination is called the, I call the character for truthfulness. And that means often in trials, there's something in the witness's character or background that you may want to cross-examine the witness about that's relevant to truthfulness or untruthfulness. And what comes to mind immediately, often in criminal cases, is if the witness has a prior felony conviction, for example. You may want to, um, bring that fact out during your cross, um, for the purposes, again, of undermining the credibility of the witness. Sometimes it's not necessarily a felony conviction. It could just be something of, uh, what in California they call moral turpitude, meaning the witness did something, uh, maybe, uh, wrote a, uh, made up of false application for, uh, in a, you know, for a driver's license or said something under penalty of perjury that was a lie. And so again, by dredging that up during your cross, you're undermining the, the credibility of the witness. What you're really wanting to show is this witness is not believable because they're just the type of person that, that would lie or has a character for untruthfulness or lying. So those are the four main areas that you should be thinking about, uh, as you're preparing your case for trial. All right. So when coming up with a strategy or a plan for your cross-examination, in general, it's been my experience that generally the shorter, shorter the cross-examination, the better. In other words, keep it relatively short and concise. Many times I've seen, uh, trial lawyers go on for hours or hours and days and days on cross-examination. And what happens is you lose the jurors. You're up against what I call the game clock, which is the jurors limited attention span. And so after three or four hours of good cross-examination, you'll start to see jurors yawning, looking at their watches, staring up into space, which, you know, they're thinking about when the break is, how much longer, and whatever good points you wanted to make or you did make were lost because you've lost the jurors. And even as a judge, it's difficult to pay attention for hours and hours and hours to the minute details that might be important on cross-examination. The other thing about cross-examination when you're thinking about designing it and coming up with a strategy is to keep it flowing in some linear method. In other words, there needs to be a logical progression of the questioning where you go from point A to point B. Too many lawyers skip around and digress. They'll start down one path and then change course and go down the other. And we go back again that you lose the fact finder. It's the jurors, it's the court, needs to be able to track what you're doing and follow your logic. And so there needs to be a logical progression to the order of your questions, going from point A to point B. Here's a trial tip. Good cross-examination first locks the witness down on uncontested facts to prevent an avenue of escape and then moves on to the more contested issues. And this is another way of saying of going from general, the general, to the specific. So for example, let's say you're cross-examining a witness about an inconsistent statement. So you'd first start out with general questions that might be uncontested. Did you speak to a police officer the day of the accident, correct? And you tried to be as truthful as you could to the officer, isn't that right? And you wanted to be accurate because you were speaking to a police officer, correct? And you're laying down the foundational facts, so to speak. And then you move on with, as your question goes on, once you've laid down the general facts, to the more specific questions about the fact that now in court, you're saying something inconsistent with what you said to the police officer. So what that does is it tends to kind of lock in the witness. You're surrounding the witness essentially with a wall of foundational facts to prevent an avenue of escape. So in the example I just gave of the inconsistent statement, the avenue of escape could be, well, I didn't understand what the officer was saying, or he put words in my mouth, that kind of thing. So when you start out first, before you go to the confronting the contested facts, you cement in the witness on all the uncontested facts to prevent that avenue of escape. Another trial, another strategy or tactic some lawyers use for cross is that you start at the weakest or the most vulnerable point of the witness and right out the gate because that's when the jurors are most attentive. And let's say that there's a major inconsistency that might even show the witness as being untruthful. Before you get into perhaps other areas of cross-examination, you might just come out and go right for the the inconsistency right up the front end. And when you do that, it often causes the witness to tighten up and to react defensively often. And often when witnesses act defensively, it works in your favor because the jurors are watching that and it tends to undermine their credibility. The other thing about coming up with a strategy or a plan is you're going through your cross-examination. And this is where I have a red caution. Whenever I put anything in red, it means it's really, really something you should pay attention to. And that is caution regarding the unknown. Too many lawyers during their cross-examination tend to first, one mistake they make is they ask one question too many. Now I've seen this happen repeatedly over and over, and I've been guilty of it myself when I was a trial lawyer. You score some great points on cross, you've established an inconsistency or some weakness or relationship that might show a bias, and but you ask that one question too many, and suddenly the witness gives an answer that blows you right out of the water that you weren't expecting. It's similar, a similar caution is what law professors taught teach all the time in law school about don't ask a question you don't know the answer to. And it's surprising to me as a trial judge that's seen this over and over, that regardless of that admonition that the trial lawyer knows, they still do it. It's relatively still frequent in the courtroom where the lawyer just has to keep going, is tempted, wants to just go for the the coup de grace so to speak, and keeps asking questions, and ventures into an area of unknown, and suddenly the witness gives you an answer you weren't expecting, and usually the witness the unexpected answer is not friendly to your case. So one trial tip I have here is stick to your planned objectives, and when you achieve those objectives, sit down. In other words, quit questioning. Don't be tempted to go for the coup de grace, save it for argument. What do I mean by save it for argument? I mean that you might be, you might score some great points or you know elicit some good facts that'll help you that would tend to show the witness perhaps has a biased or made an inconsistent statement. But rather than confront the witness with it, hoping that maybe the witness would admit it, and remember in real court there aren't any quote Perry Mason moments. You'll hardly ever see a witness say yeah you got me I lied, or yeah I admit I made a mistake. They just witnesses by their human nature, even when it's not something real serious, they just don't want to admit it. So they'll come up with an answer, or exaggerate, or something you weren't expecting. So one one possible strategy is establish the facts that show whatever you're looking for, but then save it. Don't confront the witness with it directly, and then and then bring it up during your closing argument. And when during your closing argument you can, when you point out to the jurors how the witness made an inconsistent statement, should not be believed, or was lying when they testified, the witness isn't there to talk back, so to speak, and you have argument to lay it out. All right, now that we've had an opportunity to talk about preparation, and a strategy, and a plan of attack, let's talk a little bit more about the mechanics of cross-examination. And we've all heard that leading questions are the primary tool that attorneys use for cross-examination, and it's true. In fact, my experience has been that the best trial lawyers, the ones who really excel at cross-examination, and are successful in trials, are those that really understand and make well-crafted leading questions. They understand how to do it, and they're very good at it. And it takes a little bit of practice. So the best type of leading question is one that is short, concise statement of one fact for the witness to either admit or deny. I want to say that again, because it's so important. It's a short, concise statement of fact, of one fact, for the witness to either admit or deny. The objective of the leading question is to require the witness to only answer with a yes or no, without any further elaboration, any further explanation or to prevent the witness from giving you any unrequested information. And the way that a good leading question is generally formed with use of what we call taglines. And taglines basically are just short little statements that go at the beginning or the end of your statement of fact. Let me give you a couple of examples here. Let's say this involved the traffic accident case, maybe a personal injury case, and it was contested who ran the red light causing the accident. And the witness is on the stand. So a tagline at the beginning of a question could be, "Isn't it true the traffic light was already yellow before you entered the intersection?" And the witness would say yes or no. A tagline at the end could be, "The traffic light was already yellow before you entered the intersection, wasn't it?" or "Isn't that true?" or "Correct?" or "Right?" So basically you've taken the same fact, the same proposition, and you've either had the tagline at the beginning, "Isn't it true?" and then you ask the question, or it's at the end. Some lawyers are good at mixing it up because it gets a little bit monotonous to always ask the same tagline over and over again. Some lawyers are good at asking questions that require the witness to only answer with a yes or no, but not actually using a tagline. It's just with the inflection of their voice. The light was already yellow as you approached the intersection, and just by the tone of their voice, the witness understands that's a question that says yes or no. Some attorneys will say, "Would you agree with me that the light was already yellow as you approached the intersection?" So that requires a yes or no. The absolute key to success for any leading question is that it must require the witness to say yes or no. When you're forming up your leading question, make sure it's not confusing. Some lawyers have difficulty getting it out, and they'll make it a little bit confusing, or sometimes they'll accidentally use double negatives. For example, "Is it not true the light was yellow as you approach the intersection? Correct?" And so that's very confusing for the witness. You may even get an objection, you know, on her objection or on her vague and ambiguous, or objection on her compound question. So a trial tip in this regard is that the most common technical problem associated with poor cross-examination is simply that the question is too long. Generally, the shorter statement of fact, the better. And practice. What do I mean by practice? So when you're not in the courtroom, just practice using leading questions. I mean, questions that require the witness to say only yes or no, that don't allow the witness to give you anything further beyond that. And the good way to do it is just take a spouse or a friend or an associate and ask some leading questions about something that you know about. Maybe a trip to the grocery store or something like that, and walk them through everything that happened just using leading questions, and you get used to it. And so that's the key. It takes some practice. It's not that easy to use good leading questions, because as you're going to see in a few minutes, we're going to be talking about witness control, because a lot of witnesses aren't just going to be roll over and be compliant, say yes or no. They're going to want to add further things. They're going to not answer your question, and you're going to have to know how to deal with it. But the first key is you have to ask a good question that only asks and only requires a yes or no. Now let's talk about things not to ask in a leading question. And again, we're back to the red caution flag. And because there are certain words or phrases that you should never ask if you're asking a leading question about a controverted or contested fact. And the two words that stick out in my mind right away are any question where you ask the witness that you have the words "why" or "how". And so if you ask the witness why something happened or how it happened, or if you ask the witness to explain something, or if you ask the witness to make an opinion or what the witness thinks about something, and if you ask any question to the witness that permits the witness to go beyond saying yes or no, then you've lost control. That's a poor leading question. And what's going to happen is the witness is going to give you some answer you don't like. And there's nothing you can do about it. You can object, objection your honor, non-responsive, and the judge is going to overrule it because you asked the question. You asked why, counsel. In my experience as a judge, I can't tell you the number of times I've seen attorneys cross-examining a witness and they're doing a good job. They're scoring points, the witness is going along, yes, no, yes, no, good cross-examination. But then the attorney slips in a question like, well, why did you do something? Well, why did you think the light was not operating correctly? And then now, when you ask a why question or a what or ask a witness to explain or to give an opinion, the witness now can virtually say anything. They've got carte blanche, the green light to just lay it out there and they're going to give you a bombshell. They're going to give you something you don't like. They're going to give you something that probably hurts your case. And this is one of the times as Professor Wigmore warned that you could impel yourself on your own cause because you asked the poor leading question, you ask a witness why something happened. So don't do it. And so the kind of a trial tip in that regard is the why or similar question will derail your cross-examination and permit the witness to respond at will with testimony which is usually not helpful to your case. Now I want to talk a little bit about non-leading questions because sometimes I think they're overlooked. In cross-examination, you're not always going to be asking leading questions. Sometimes non-leading questions are useful to help clear up the direct examination. Maybe there was something the witness said that was a little confusing during the direct that you want to clarify. And so a trial tip is open-ended questions can be helpful to quickly resolve less controverted matters. Now when you use a non-leading question, you're now allowing the witness to pretty much answer more than a yes or no. So you need to be confident that whatever the answer the witness gives you is not going to come back and hurt you. It's not harmful to your case. But sometimes you just need to clear up things. It might not even be a harmful area, just maybe a distance or a location or something relatively innocuous, but you feel you need to clarify the direct examination. So non-leading questions are good there. Now here is where I really feel non-leading questions can be very helpful to your case. And I call it the extraction of extreme detail. And the devil in the detail is a good is an adage that experienced trial lawyers know well. And the tactic here is when it appears that the witness is giving a patently false story, maybe a complicated alibi or maybe a fantastic story or coming up with a lot of detail, and you believe it's completely made up. So what a good tactic could be to start asking the witness to give very extreme detail down to the minutia, the very minute of the actor's motion or something. And when you start extracting detail of that, often if the witness is literally fabricating a story, they've kind of come up with the general lie. They try to incorporate much truth as they can. But if you pepper them with questions about minute detail, now they have to almost come up a lie on, you know, as it's coming. And this is where they can trip up and make inconsistencies that might be helpful to your case. So one of my trial tips is the use of open-ended questions during cross, which requests a witness to provide specific detail, can be very effective when the story is a patent lie. Further detail will only serve to entangle the witness in a web of lies. So here's a real life story. When I was a trial lawyer, a prosecutor, I prosecuted a defendant for murdering his pregnant wife and his four-year-old child. Now the defendant at that time had a complicated alibi and he took the stand in his own defense during his trial. And so I had the privilege to cross-examine him. So the first portion of my cross-examination, I used leading questions to nail them down on things that hurt his case. For example, the fact that he'd had extramarital affairs. And, uh, but however, when it came, so I used a lot of leading questions. However, when it came to questioning him about the actions in the home on the morning of the murders, where he gave a very complicated story, I did just this. I asked him to provide very extreme detail. So I wasn't using leading questions. I was just having him literally go second by second through the murder scene of what he did or didn't do. And ultimately, in my opinion, it was the, all the details he had to come up with and the inconsistencies that came out because of that, that convinced the jurors he was not being truthful and he was convicted. So that's just one example of how non-leading questions can be very powerful and effective in your cross-examination. So I want to take a moment, just take a slight pause and explain a little bit more about me and what I'm doing. So as I mentioned, I retired recently as a superior court judge in California, where I presided, uh, in on the bench, mostly trials for about 14 and a half years. And in the meantime, I've also written a handbook for trial lawyers called the Practical Trial Handbook. The object of the handbook is to provide lawyers the nuts and bolts of a trial, whether it's a bench or jury trial from beginning to end. And it really is practical. In other words, the things you really need to know before you go in there and try even a small case, even a family law, even a bench trial, a civil case, criminal. It's really the basics and nuts and bolts of putting a case on from beginning to end. And so the chapters include, for example, pre-trial procedures, jury selection, opening statements, direct and cross-examination, which we're talking about a little bit here today, impeachment, expert witnesses, which is important, courtroom evidence, how to put your evidence on, how to mark exhibits, demonstrative evidence, what's required to lay out the appropriate foundation for the admission of evidence. I have some chapters where I summarize the rules of hearsay and character evidence. I also have a good chapter on trial objections, where it lays out the common objections made in the midst of trial that you need to know really to memorize. And I also have a chapter on the closing argument. And it's available on Amazon books. So that's enough of that. Let's move on to talk a little bit more about cross-examination. So now I want to talk a little bit about witness control techniques. During cross-examination, witness control is the name of the game. Remember, during the leading question, you're giving the witness a short statement of fact, requiring the witness to either affirm or deny to say yes or no to that short statement of fact. However, witnesses aren't always so compliant. You'll see that many witnesses will not answer your question, they'll answer your question, but give more information than you requested, or they can be just downright hostile. So you as the trial lawyer have to be prepared with some techniques of how to deal with it when you have what I call non-compliant witnesses. For example, let's say this is a personal injury trial where the allegation is the defendant ran a red light causing a traffic accident that injured the plaintiff. So let's say, hypothetically, the defendant is on the witness stand now. So you might ask a leading question if the defendant is being cross-examined by you. And so your statement of fact kind of goes like this. The light was yellow before you entered the intersection, wasn't it? So you've given them the short statement of fact, simply that the light was yellow before the defendant entered into the intersection. And that just requires a yes or no. Now what can happen is the witness can say yes, but all the other cars were ahead of me were going through or yes, but I think there was something wrong with that traffic light. So they can give you a yes, but or a no, but, and then add further information that wasn't required. So that's a non-compliant witness because the witness answered your question, but then added more information that was not requested. The other scenario that can happen is you can say the same, the same statement of fact, the light was yellow before you entered the intersection, wasn't it? Are you trying to imply that I ran the red light or I didn't run the red light if that's what you're asking? Another way is you could say the light was yellow before you entered the intersection, wasn't it? I didn't run the red light, the other car did. Now you asked a leading question, it required a yes or no, and the witness literally ignored it as if you hadn't asked it and interjected their own information that the other car ran the red light. So that's two very, very common ways of how witnesses are non-compliant during cross. I've noticed that often some of the more difficult witnesses are expert witnesses or people who are trained. Expert witnesses, they just don't like to be pinned down on cross-examination to say yes or no. They love to talk and they want to give an explanation. So sometimes you might ask a good leading question to an expert on something related to the field and the witness will say yes, but, and then give a long-winded explanation pretty much repeating what they said on direct examination, which is what you want to avoid and that is a repetition of the direct testimony. So how do we deal with that as trial lawyers? Well, here's some techniques. The first one I call is repeat and admonish. So if the witness say, for example, back to that same vignette, the light was yellow before you entered the intersection, wasn't it? Yes, but the other car ran the red light. So at that point, I feel a good trial tip is that you have to react. You can't let the witness start getting away with adding more information. Otherwise, they kind of get a cue that you're going to let it go on. You can't sit on your hands. And I would say the very first instance on cross-examination where the witness is non-compliant and adds more information, you need to do something. So the first thing might be to do is that they say, yes, but, and start giving you more information that you can ask for, you can interrupt. I would, some trial lawyers are good just holding up a hand. Okay, so let me stop you right there. You answered the question. Thank you. So if they said, yes, you know, the traffic light was yellow before you entered the intersection. Yes, but all the other cars, thank you. Thank you. You answered the question. Um, and let's please listen to my questions. So you, you've interrupted, um, and you've admonished the witness. Just answer your questions. Um, and, um, that's a good way to handle it. You're being very polite. Um, you're not being rude. And, um, you, and most judges won't, will just let that happen. Now, what happens if the witness literally does not answer it? Um, the traffic light was yellow before he entered the intersection, wasn't it? All the other cars were going through. And that wasn't the question. Um, let me ask the question again. Please listen to my question. The light was yellow before you entered the under the intersection. Yes or no. And then the witness still might do it. Sometimes this goes on two or three times. The other cars were, the other cars were going through. Okay. That wasn't my question, sir. Please just listen to my question. The light was yellow before you entered the intersection. Yes or no. And usually by that second time, the witness will say, yes, but also make sure they don't go do a yes, but because they might say, yes, but all the other, okay, thank you, sir. That wasn't that, you know, I just that you've answered my question and then move on to your next question. So the first objective is, uh, the first, um, uh, witness control technique is just, you're handling it yourself. I call repeat and admonish, um, be, be professional, but you gotta, um, use a hand if you're not, uh, a very effective, hold up. Thank you, sir. If you could stop right there. Thank you. Um, and, and answer the question. Now, some witnesses are still not going to respond to that. Um, you're going to run it up against many witnesses who are, um, even with your interruption, repeating it. They continually either don't ask, answer your question or ask, answer it with more information. So the next thing to do, uh, the next level of, um, strategy is to make an objection. It's a proper, uh, legal objection in nearly every jurisdiction of, uh, the proper objection is non-responsive objection or honor non-responsive. So if the witness said, um, yes, but the other cars were running the internet were also, um, going through, you could say objection, honor, non-responsive, I move to strike the answer after the, after the word, yes. Um, typically in jurisdictions, if there's been some answer given it, you're required to make a motion to strike. Otherwise, it could remain on the record as far as the appellate court is concerned. So, um, again, if the witness answers the question, but adds more information, objection, your honor, um, non-responsive, I move to strike the answer after the word, yes. If, if that's what you wanted. The same principle applies if the witness just didn't answer the question, the light was yellow before you entered the intersection. Wasn't it? Well, all the other cars were doing it. Objection, honor, non-responsive, I move to strike the answer. Now, what can typically happens is that if you make an objection, the judge sustains it, uh, the witnesses generally will often fall in line now because they see that they kind of see where you're going with it. They, they see that you're a type of an attorney that won't let them get away with it and they become more compliant. So in that respect, um, your objection worked. Um, sometimes you, you'll find with particularly difficult witness, very hostile witnesses, that this, it can be difficult. It can be like pulling teeth to get them to answer your question and give a straight answer without adding more. And so the next level you could go to, even if you've objected, the judge has sustained your objection, but you're still having trouble, you could ask for court assistance. Your honor, would the court, um, admonish the witness to please just answer my questions. Um, now some judges, different judges have different views on this. If it's just, if this just happened a couple of times, usually the judges, uh, at least how I dealt with it, I didn't really want to get involved between the witness and the attorney during cross. Uh, but if the witness is just definitely being, um, uh, very obstructionist, in other words, the witness is deliberately not answering the questions and I get that feeling, um, I will lean over and look at the witness and say, just answer the questions or please listen carefully to the questions and just answer counsel's questions. Thank you. Um, and when the judge interferes like that, um, even if you, the cross examiner, aren't really scoring a lot of points as far as factually, you definitely are scoring points as far as how, how the jury, uh, look, uh, towards the witness because the witness is being totally uncooperative. And so you're clearly, um, making points in the sense that you're showing how the witness is being, um, as biased or, uh, unfriendly to your case. And that usually undermines their credibility. So those are, um, some tips again of how to deal with, um, witnesses who are non-compliant. Again, repeat and admonish, interrupt if necessary, make an objection, objection your honor, non-responsive. If the witness made an answer, move to have it stricken. And lastly, um, don't feel shy about asking the court for assistance if the witness is just being hostile and non-compliant. Now I want to give a caution here, however, about when you object and asking, you know, object non-responsive. And the caution is this, because this, that I've seen this happen a lot and I've, I've overruled the objection. And the reason the court might overrule your objection is because you asked a very poorly worded leading question. So remember when we talked about leading questions, I said, it has to be a simple statement of fact requiring only a yes or no. But if your question allowed any wiggle room, if it wasn't well phrased, if it, if you asked why, or if you gave the, if you asked a compound question or made it such that the witness couldn't say yes or no, the judge could feel that you, that you didn't really give the witness an opportunity to answer and that the answer would require more than just a yes or no. And the judge may overrule your objection. Overruled counsel, the witness may answer. And now you kind of look like the bad guy because you made an objection to the witness. So be cautious and careful that your question is framed such that it only requires a yes or no. And remember, um, the, the most common error is your question simply just too long or it's compound or it's vague and ambiguous. And this is where it really takes a lot of practice to make a good leading question. Um, here's a trial tip. Um, some law, some attorneys maintain good, uh, witness control merely by the tone of their words and the simple act of raising a hand to signal the witness to stop. Let me stop you right there. The question was, and then you repeat it. Um, it, it pays to remain polite, but be firm. Again, the witness needs to know that you, uh, the trial attorney is in control. And once you've got good, uh, control of the witness, your cross-examination will go a lot smoother. Now, here's a couple more things I've, uh, noticed, uh, that might be helpful, uh, kind of a tip to you cross-examining a witness of things that can happen in the courtroom. Um, sometimes, uh, witnesses will actually talk back to you. Um, and some attorneys seem unsure how to handle this. For example, if the question was again, the light was, uh, yellow before you entered the intersection, wasn't it? Are you trying to say, I ran the right red light council or I've already answered that. Do I have to answer that again? Or, you know, they say some comment back to you. Um, so my, uh, um, view is when the witness does that is don't respond. Uh, because if you begin to engage the witness, then it sucks you in, so to speak. And I've seen witnesses kind of, I've seen attorneys kind of stoop to the witness's level and it looks unprofessional. So if the witness really is, um, I would just ignore it and repeat the question. And again, go back to the tact that if the witness isn't answering your questions, ask the court for assistance, your honor, would the court admonish witness to please just answer my questions. The other thing to be careful about when you're cross-examining a witness is your tone and demeanor. Um, you're going to have all types of witnesses. Um, you're going to have a very, an old woman who suffers from memory issues. Uh, she was just a witness. Um, you're going to have defendants on the stand in a criminal case with felony convictions, spinning lies. Um, you're going to have hostile witnesses. You can have very shy witnesses. You can have witnesses. You may have children on the witness stand that you have to cross-examine. So the key is you need to, um, uh, the tone and forcefulness of your examination, uh, has to depend on the type of witness, the nature of the witness. So what I mean by that is you can't attack the 80 year old or the child with, uh, questions with such forcefulness or tone that you're accusing them of lying or, um, you know, insinuating that they're making up a false story or just seem to be rude and forceful to them. And the reason for that is you don't want to off put the jurors, um, jurors, uh, you know, uh, you know, so you don't want to have the jurors turn against you. If you see the jurors fold their arms and look away during your cross, that's a good sign that you've offended them somehow. So be very careful about the tone, the cadence of how you're cross-examining a witness. You know, if you get a very combative witness, that's one, uh, witness, that's one thing. Your questions might be very sharp and they might be in a cadence and, you know, quick, come in quick succession. But you need to, uh, you know, be wary of jury sympathy if the witness, again, is a sympathetic type of witness, so you don't turn off the jurors. And one thing I've noticed kind of a truism is that jurors are willing to accept more readily that a witness made a mistake, maybe an innocent mistake, or didn't perceive things accurately. If you start going out and making accusations of lying, sometimes jurors are not sure about that and can off-put them, unless you've just got very strong evidence, you know, irrefutable evidence that, uh, there's been a lie. So consider during, when you're forming up your questions, whether it might be better to go at the tact that the witness has made a mistake rather than the witness is lying. And again, you still have a closing argument to wrap it up where then you might say, yeah, in my opinion, you know, in your closing argument, you may argue the witness was being, the testimony was false or it was a fabrication, but be careful about how you cross-examine the witness about accusing someone of lying, uh, uh, how the jurors may take that. Again, a trial tip, the tone and forceful of your forcefulness of your examination depends on the nature of the witness, common sense. But again, I've seen lawyers, I can recall one case in mine, specifically a murder trial, where the defense attorney went after a witness, and as if the witness was lying, and making the whole story up. And I could just sense from the jurors, they were not comfortable with that. And a better, much better attack would have been to simply show the witnesses mistaken or point out facts. So be careful about that. A couple little things about legal things on evidence codes. The scope of cross-examination generally is related to areas covered during the direct examination. However, there are exceptions to that. For example, the federal rule of evidence, rule 611b, states that areas, the area for cross-examinations can be areas covered during direct and matters affecting the witness's credibility. That's a pretty open-ended statement. So if the if your cross-examination questions goes beyond what was covered on the direct examination, but relevant to the victims, the witness's credibility, then it would be appropriate. And again, during cross-examination, the trial courts are mandated usually to allow wide latitude. But the courts will limit that sometimes to what's called collateral issues or collateral matters. Another issue that sometimes pop up is the question whether the door was opened. So during the direct examination, the witness may have said something that you feel now has, quote, opened the door to you to cross-examine the witness about something that might not have been covered during the direct. It might be unflattering for the witness. The judge may have even ruled it inadmissible. And that's, but something about something that was brought up by your opposing counsel during the direct, now you feel it has opened the door. And again, this is areas that will have to be litigated before the judge. But keep in mind that a lot of courts have held that the open-the-door concept is somewhat of a fallacy, that you can't just let you, the cross-examiner, can't sit on your hands knowing that inappropriate evidence is coming in through direct, hoping that you're going to be able now to cross-examine the witness about inadmissible evidence. Many judge will deny your request if you want to go that far. Another issue that sometimes comes up is sometimes lawyers during their cross-examination will ask witnesses to say to opine whether other witnesses were lying. So are you saying the officer was lying when he said he saw you at the store that night? So generally that could be subject to the objection of speculation because really you're asking the witness to speculate about the testimony of another witness. Well, this pretty much wraps up this video. Basically, I covered what amounts to a first-year law school course and cross-examination all in less than one hour. So I apologize that I had to skim through a lot of information. But if this is interesting to you, if you like the video and you want more information, for example, we didn't even talk about how to cross-examine a witness with an inconsistent statement, how to lay it out, you know, the foundational aspects with it, how to confront the witness with it. So there's a lot of things, a lot more information about cross-examination that is to be learned. A lot of it just comes from good old learning experience. You're never really going to get good at cross-examination unless you do it and practice it and, you know, do some trials, some hearings. Because as we know, cross-examination is used in every type of hearing, whether it's a jury trial, a bench trial, a family law trial, any hearing where witnesses are on the stand subject to questioning, you're going to have cross-examination and the same principles will apply. And that just kind of brings me to my closing remarks. And that is that really today I just covered the basics, the nuts and bolts really of how to do it. But my experience as a trial court judge is that often the most effective trial lawyers aren't necessarily the smartest ones or the most polished. They're the trial lawyers that just understand the fundamentals, the basics, and put their case on that way. And so that kind of brings me around to my handbook. The practical trial handbook, as I've mentioned, what I attempted to do in that is put everything that a trial lawyer needs to know from beginning to end, how to put a case on competently. It's not going to make you Clarence Darrow or some great trial lawyer, but it'll get you through and you can do a competent job and you can build on that. So if you're interested in that, if you like this video, please like it. Please subscribe to my channel. I might do more of these videos in the upcoming months on every topic. If you'd like to put some comments in there and I might do more videos. Check out my handbook. It's at Amazon Books. I also have two editions. One cites the Federal Rules of Evidence and the other one is the California Rules of Evidence. And I also have one called the Criminal Trial Handbook that I did initially, but that's mainly geared around California law. The same principles are also covered in the practical trial handbook. So again, thank you for your attention and good luck in the courtroom.