QUESTIONS AND ANSWERS TO COMMON TRIAL ADVOCACY QUESTIONS:
THIS WEEK'S QUESTION: "How do I cross-examine a defendant effectively without alienating the jury?"
- CRISTINA ACOSTA BLUNT
ELLIOTT ANSWERS: Cristina, let's start by discussing some of the most common ways attorneys alienate the jury during cross-examination:
1. Demanding "yes" or "no" answers. During cross-examination, you usually want to lock the witness into "yes" or "no" answers. The answer, however, usually sounds like this: "Well, yes, but..." Then the attorney cuts him off, saying, "You must say 'yes' or 'no,' you can't explain your answer."
When that happens, jurors get offended. In a normal conversation, you wouldn't be limited to "yes" or "no," you'd be given a chance to explain your answer. When lawyers curtail the answers, jurors sense that the lawyer isn't playing fair. Of course, there are times when you need a "yes" or "no" answer, and there are several techniques you can use to limit witness's answers to "yes" or "no" without alienating the jury. But evaluate each witness carefully. Ask yourself if the witness is honestly trying to answer the question, or if he's trying to be evasive. If he's honestly trying to answer your question, you'll appear unfair if you cut him off. Instead, ask shorter questions and phrase them more carefully. You'll get more single-word responses, and you won't alienate the jurors.
2. Quibbling over minor details. When you argue over minor points, you risk losing credibility with the jury. Analyze your cross-examination and ask, "What are the most important points I need answered?" If the answer doesn't fall into one of those major points, you probably don't need to quibble with the witness. If the witness said "3:32 PM" at his deposition and says "3:34 PM" from the witness stand, is that worth an intensive cross-examination? Depending on the trial, it might be, but you better show the jury that it's a major detail before you start down that path. Pick your battles. When you fight over minor details, you'll usually lose more than you gain.
3. Doing a "cross" cross-examination. Novice cross-examiners get angry with witnesses. They treat the witness as a mortal enemy, someone to be left bloodied, beaten, and defeated on the witness stand.
Expert cross-examiners know better. They realize that there's almost never a need to become angry with a witness. When you find yourself getting upset with the witness, pause for a moment and take a deep breath. Don't let your emotions get in the way. If anyone needs to get angry at the witness, let the jurors get mad at him. Don't steal their righteous indignation by attacking the witness. Remain calm, be a professional, and let the facts, rather than your emotions, guide your cross-examination.
4. Thinking that everyone's a liar. Many inexperienced attorneys think that for their cross-examinations to be successful, they must crush the witness and expose him as a liar. In truth, most jurors aren't that willing to believe that a witness is lying. In their experience, most people are good and honest, so when witnesses promise to tell "the truth, the whole truth, and nuthin' but the truth," they probably do, right?
When you organize a cross-examination along the lines of "this scumbag is lying to you," you better be able to deliver the goods. If you don't, you will risk raising the jury's ire.
A better way to organize your cross-examination is to start from the presumption that the witness is mistaken or is relying on bad information. Jurors relate to that concept much more easily.
Cristina, as the examiner, you gain very special powers during cross-examination. You can force someone to answer your questions. Through the use of leading questions, you can put words in their mouths. And you've got the power to talk about embarrassing impeachment material, ranging from criminal convictions, to lies, to (if appropriate) sexual indiscretions, alcoholism, or drug addiction.
All of these powers can be used effectively to reach the truth during cross-examination.
But one of the dangers of cross-examining witnesses is that jurors almost always identify with the witness, rather than the attorney. When the jurors walked into the courtroom for jury selection, they, too, were on the receiving end of the questioning process. They're going to identify with the person who's forced to answer the questions, rather than with the person who asks the questions. That means that they can feel you're abusing your power simply because you're aggressively cross-examining a witness.
Since the jurors are going to identify with the witness, and not with you, the most important thing you must do when examining the defendant is to be polite. If you're going to be the guide they can trust, you can't suddenly take off your guide hat during cross-examination. Just because he's charged with a crime doesn't mean you can cross-examine him differently than you would any other witness. Don't raise your voice or lose your cool... even if he lies straight to your face. Treat the witness with respect, even when he hasn't earned it. If trial is morality plays, then you want to make sure you always take the high ground. When the witness quibbles or fights with you, don't lower yourself to his level.
These tips shouldn't limit the scope of your cross-examination, just the tone and tenor of your cross. Follow those guidelines, and you should cross-examine the witness effectively, without a risk of alienating the jurors.
I hope these tips help you in your next trial.
Best wishes for success in your next trial!
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