5 Cross Examination Secrets That the Best Mock Trial Witnesses Know
For most mock trial witnesses, cross examinations are intimidating at first because they don’t know in advance what questions will be asked. But they are a great opportunity to for you to shine. Witnesses who rock their cross examinations use just five strategies:
1.Memorize Your Witness Statement
You need to know everything that’s in your witness statement – and everything that’s NOT in it.
The worst thing that can happen to a witnesson crossexaminationis to get impeached. Don’t let that happen to you. Make sure that you know exactly what you said in your witness statement so you don’t say give any conflicting testimonywhen you’re on the stand.
Here’s an example:
In your witness statement, you said that the light was green when the car accident happened. Obviously, you don’t want to get on the stand and say the light was red. That’s an obvious contradiction.
Here’s a more subtle example:
In your witness statement, you said “I’m pretty sure the light was green.” During cross examination, you are asked “Can you be certain that the light was green?” You can’t say “yes.” You’d just say that you’re “pretty sure.”
Here’s one last example:
Assume you are the officer that responded to the scene, and an issue in the case is the time of your response. Your witness statement says “I got to the sceneas quickly as I could.”
When you testify, youshouldavoid saying “I got to the scene quickly.”
It’s a minor difference, but it isn’t clear whether getting to the scene “as quickly as [you] could” means that youactuallyarrived quickly. Maybe there was a lot of traffic, or you drove by an emergency that you needed to investigate right away. You still got to the scene as quickly as you could, but that doesn’t mean that your journey was a short and quick one.
2. Listen Carefully to Each Question
Don’t let opposing counselmake overstatements, and don’t let them misconstrue a statement in your witness statement.
You also should listen carefully to the conclusions that opposing counsel tries to get you to admit. Here’s an example.
Assume you’re the eyewitness in the case and your witness statement says that you were listening to music as you observed the event.
Opposing counsel might ask you, “Isn’t it true that you couldn’t observe what was happening because you were listening to music?”
Yes, you were listening to music, but that doesn’t mean you couldn’t see the events you are testifying to.
You must admit that you were listening to music. But you don’t have to (and shouldn’t) admit that you couldn’t observe the events.
In this scenario, you could respond with something like, “No, that’s not true. I was listening to music, but I could still see what was going on.”
This response admits the facts you have to admit (listening to music), without admitting the conclusion counsel tries to make (that you couldn’t see what was going on).
3:Vary Your Responses
You’ll probably be asked only yes/no questions. But that doesn’t mean that your responses to each question have to be just a “yes” or just a “no.” Mix up your responses. Here’s how:
a. Give an Explanation
If there’s a critical point you have to admit, you might not want to just respond with “yes, that’s true.” Consider offering a brief explanation. For example, “Yes, but…”
b. Add Emotion and Character When Appropriate.
If there’s something you have to admit, try saying something like:
- I’m embarrassed to admit it, but yes.
- I wish I hadn’t done that, but yes, that’s true.
If you are proud of something or are sure about it, try “Of course” or “Absolutely!”
If what counsel is saying is technically correct, although not phrased the way you’d say it, you could respond with:
- I suppose you could put it that way.
- You could say that.
Law enforcement officers sometimes say “negative” instead of “no.” If you’re the investigating officer, try this.
If you’re an expert witness, you might be asked whether it’s possible that another conclusion could be reached. You probably won’t be able to just say “no,” but you could say something like, “Well, anything is possible.” Use a dismissive or doubtful tone as you give this answer.
Here’s a visual showing the different ways you can say “yes” and “no.”
c. But Don’t Overuse These Techniques
If you are always answering with some kind of emotionor explanation,or always explaining your response, that weakens your credibility. When it’s appropriate, you should answer with a straightened, objective “yes” or “no.” Giving a simple response makes sense when you’re asked a straightforward question about an issue that really isn’t that big a deal.
4. Don’t Get Cute
Witnesses sometimes try to waste their opponent’stime. For example, they answer yes/no questions with sentences and sentences. Or they repeatedly ask for questions to be repeated or rephrased.
It’s fair to ask for a repeat or rephrase if opposing counsel’s question is bad or if you genuinely don’t understand. But if you’re constantly asking for a repeat or rephrase of straightforward questions, you’ll leave a poor impression on the audience.
Similarly, there may be questions that you can fairly answer with more than just a one-word answer, but repeatedly giving unnecessarily long answers is an obvious time-wasting tactic. Your audience will know what you are up to, and they will not like it. And your scores will show it.
5. Don’t Get Defensive or Argumentative
You definitely want to stick up for yourself when opposing counsel is trying to make overstatements or get you to admit things that aren’t true.
But if you’re constantly answering “yes, but…” or “no, but…”, even for issues that aren’t important, it starts looking like you’re arguing. And when you’re arguing, you look biased and you lose credibility as a witness.
If there’s a minor point in your witness statement that you don’t like,justadmit it. Don’t try to explain it away. But if it’s an important point, try to give a quick but objective-sounding explanation.
Don’t try to argue why it’s not a big deal or why it’s not important for this case. Arguing is the attorneys’ job.
Here’s an example of the difference between a factual explanation and a legal argument:
You can say, “I did argue with the victim two days before he was attacked, but I didn’t stay mad at him.”
But you cannot say, “I did argue with the victim two days before he was attacked, but that doesn’t matter because I didn’t have access to the weapon – only the defendant did.” This is an argument. You, the witness, do not know who had access to the weapon. This is an argument that only the attorneys can make.
While cross examinations might be intimidating for mock trial witnesses, you’ll have absolutely nothing to worry about if you:
- Memorize your witness statement.
- Listen carefully to each question.
- Vary your responses.
- Don’t get cute.
- Don’t get defensive or argumentative.
Cross examination is the part of a trial where witnesses can really stand out by showing their ability to think on their feet and play their role convincingly. With these tips, you’re sure shine bright!
Did you know that there are tried-and-true cross examination strategies for mock trial attorneys, too? Read about them here.