12 You Need to Do When Cross Examining a Mock Trial Witness

 

12 Things You Need to Do When Cross Examining a Mock Trial Witness

I’ve seen hundreds of cross examinations. Here are the top 12 strategies I’ve learned, which you can (and should!) implement in your mock trial cross examinations.

1. Script YourCross Examination

First, figure out what testimony you want to get out of the witness. Then, determine what questions you need to ask to get them to give the testimony you need.

The must-follow rule for cross examinations for attorneys is: Never ask a question you don’t know the answer to.  

Write out the questions you want to ask the witness. You want to get the wording juuuust right, so that the witness has no choice but to give you the answer you want. Consider patterning your questions after statements the witness made in their witness statement.

After you write out your questions, put them in the order you want to ask them.

2. Stay Focused

Make your cross examination quick and to the point. Plan on making just a few key points. If it gets too long or if you bring up a bunch of minor points, the audience loses track of what’s actually important.

Help your audience stay focused. Resist the urge to ask the witness a bunch of questions, and use transition words and phrases to move from one topic to another.

3.Prepare Your Cross Examination by Reading the Witness Statement

Carefully go through the witness statement and look out for:

  • Any admissions that support your case.
  • Statements that undermine the witness’s credibility. For example:
    • Does the witness have a motivation for protecting the defendant or a motivation for committing the crime?
    • Is the investigating officer biased because they didn’t at other suspects? Were they just in a hurry to close the case? Did they just glom onto the first suspect, which happened to be the defendant?
    • Was the witness unable to clearly observe what they testify to? For example, perhaps the eyewitness viewed the events from a distance.

Once you’ve found all the good stuff in the witness’s statement, make a list of them.

4. Turn the Witness Statement Into Your Questions

Once you have a list of the good stuff from the witness’s statement, turn them into your questions by asking something like, “Isn’t that true?”

Here’s an example. Your witness is the defendant’s friend and the witness statement says, “I was with David Defendant all night on February 14. We found out later that Victor Victim was killed on the 14th.”

You would turn this statement into a question like: “You were with the defendant all night on February 14, isn’t that right?”

You can even quote the witness’s statement verbatim if you’d like. For example, if you’re cross examining the defendant, you might ask: “After your conversation with the victim, you were ‘angrier than [you] had ever been’, weren’t you?”

5. Ask Only Closed-Ended Questions

Open-ended questions typically start with “who,” “what”, “why”, or “how.”  Those questions are great for direct examinations, but you should NEVERask them on cross.

Instead, during a cross examination, ask only closed-ended questions, which are questions that can be answered with just “yes” or “no.”

This is because you don’t want to give the witness room to give an unexpected answer. Your goal is to ask a question that the witness can only answer by giving the testimony you want from them.

6. Don’t Be Argumentative

Your tone definitely should be confident, and you shouldn’t let the witness run all over you. But you shouldn’t argue with them either.

Be careful about how you phrase your questions. Don’t ask questions like “When you allegedlysaw the attack you claimedto have seen, isn’t it true you were standing 50 feet away!?”

Ask your questions more objectively; for example: “Isn’t it true you were standing 50 feet away from the attack when it happened?”

You also shouldn’t argue with the witness if they don’t answer a question in the way you expected. If their response was inconsistent with their witness statement, impeach them. (See Tip #12.) If their answer was consistent with their witness statement, but you just didn’t like it, ask another question.

7.Listen Carefully to the Witness’s Responses

Make sure you actually get an answer to your each of your questions! If you don’t, follow up using the tips in #8.

And listen carefully to make sure that the witness’s answer is consistent with their witness statement. If not, you should take the opportunity to impeach them. More on impeachment in Tip #12.

8. Ask a Follow-Up Question

If the witness does not explicitly answer your question, repeat your question and ask them to confirm an answer.

You can end your question by directing the witness to answer with just a “yes” or “no.” And addressing the witness by name is often an effective tactic.

For example:

Q:  Isn’t it true that you had argued with the victim two days before he was attacked?

A: I really wasn’t all that upset with the victim. I had nothing against him; I have nothing against anyone, really. [This doesn’t answer the question asked.]

Q: Mr. Witness, you argued with the victim two days before he was attacked, yes or no?

A: Yes.

You might also have a witness that answers your question, but gives a lengthy response or tries to explain away his answer. If you are trying to get a critical fact out of the witness, ask the witness to confirm his answer. This draws the audience’s attention to it.

Here’s an example:

Q: Isn’t it true that you had argued with the victim two days before he was attacked?

A: Yes, but I didn’t stay mad at him.

Q: Is that a yes?

A: Yes

9.Use the Non-Responsive Objection Wisely

Sometimes attorneys on cross examination cut off the witness the second the witness tries to say something more than just “yes” or “no”. They object as non-responsive because technically, anything more than “yes” or “no” is not an answer to the question.

This is a legitimate objection. But I don’t recommend making it the first time the witness tries to give you more than just a yes or no. It’s too aggressive and makes you look petty. It also looks like you have something to hide and are threatened by what the witness has to say.

Try to control the witness in other ways. Before objecting, consider using the techniques in Tip #8.

I suggest objecting only if these techniques don’t work, and the witnessis super obnoxious about giving extended answers and explanations to the questions you ask.

10.Don’t Let the Witness Take Control From You

Even though you ask a yes/no question, it’s unlikely the witness will answer every question with a single word. It’s more likely they’ll answer at least some of your questions with an explanation, such as “Yes, but….”

You may even get a witness that answers every single one of your questions with a lengthy response. This is annoying. I understand.

First of all, rest assured that if the witness is giving lengthy responses to each of your questions when explanations aren’t really needed, they look defensive and argumentative. Judges and scorers don’t like this. And they understand that your opponent is just trying to eat away at the time you have to cross examine. They don’t like that either.

Stay in control. If you’ve asked about something that isn’t critical, let the witness go ahead and give their lengthy responses. Act as if their explanations are a bunch of crap and not worth a response.

But if you’ve asked about something critical, go back to the techniques in Tip #8.

This video gives a few more techniques on how to maintain control. Consider using some of the techniques (starting at 3:25 of the video). But remember that you have limited time for cross examination and might not be able to fully implement some of the recommended techniques.

 

 

11.Prepare an Outline That Will Help You Impeach the Witness if Necessary

When preparing your outline for cross examination, make two side-by-side columns on your paper. On the left side, list the questions you’ll ask. In the right-hand-side column, you’ll list the case packet page number and line number where the witness answers the question you’re asking. (Download a form outline here.)

You want to do this so that if the witness gives something different from what you expected, you can impeach them without wasting any time or fumbling through the case packet. And you’ll look professional and prepared.

12. Know How to Impeach the Witness

If you get the opportunity to impeach your witness, take it!  Properly impeaching a witness gives you a chance to show your trial skills. Plus, it’s fun =)

There are three steps to impeaching a witness:

  1. Repeat the witness’s testimony and ask them to confirm.
  2. Ask the witness to confirm that they previously gave a witness statement.
  3. Read from the witness statement, citing the page and line number.

For example:

Q: Isn’t it true you argued with Mr. Victim on February 12, two days before he was attacked?

A:  We had a conversation and it got kind of heated, but I wouldn’t call it an argument.

Q:  Is it your testimony that you had notargued with Mr. Victim two days before he was attacked?  [Summarize the testimony given and ask the witness to confirm].

A:  Yes, that’s right.

Q:  Do you recall giving a statement in this case?  [Have witness confirm they gave a witness statement.]

A:  Yes.

Q:  I’d like to read from that statement. For the record, this is page 19 of the case packet, lines 2-6. “On February 12, I talked to Mr. Victim, and we got into an argument.”  [Read passage from witness statement that contradicts with testimony given.]

THAT’S IT. After you’ve completed this process, just ask your next question. Don’t argue with the witness. Don’t ask them to confirm what they said in their witness statement. That gives them a chance to weasel out of, or explain away, the false testimony they just gave in court.

Conclusion

There you have it – 12 strategies to use to become a cross examination rock star!  Have you tried implementing any of these tips?  Which has had the biggest impact on your cross examination performances?

 

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