Cross-Exam: Chapter 11

The science and techniques of sequencing are the first and foremost methods of aiding the fact finder in understanding the facts and how they support the advocates theory of the case.

Placing chapters into desired sequences heightens the impact of the cross-exam material.

Sequencing chapters can help control the witness by:  encouraging witness to answer honestly, discourage unresponsive answers, suppress the will of the witness to steer the cross-exam into areas of unsafe inquiry.

Do not repeat or follow the direct-exam sequences.

The chapter method is more flexible than even the best general cross-exam notes because it permits speedy integration of new material gained during direct-exam.

The chapter method is a part of a total system and allows the cross-examiner to be prepared for the changing dynamics of the cross-exam.

Begin cross-exam with the chapters previously selected as the opening sequence.  Don’t “chase the direct-exam” by changing what was already planned as a strong beginning just to respond to what just happened on direct.

Begin the cross-exam with chapter that are predictably safe, that are well-developed and in which hte cross-examiner has confidence.

Sequencing in chronological order is the preferred device for the storyteller who has the task of explaining the entire picture.  However, chronological order should not be used in a confrontational cross-exam.

Damages of Chronological Order:

1. getting into area not intended to during cross
2. the witness knows full well what is coming up and can steal the cross-examiner’s ability to highlight or downplay facts
3. the witness has time to plan out answers
Avoid using chronological order in conformational cross-exam because it denies the witness the opportunity to insert undesired information and guards against unresponsive answers.

If cross-examiner needs to develop a long story it can be appropriate to utilize a chapter bundle and develop that chapter bundle’s portion of the story in chronological order.

Begin integrating the case theme in the jury’s mind as early and often as possible.  It is possible to beat to death a theme phrase by overuse.  The cross-examiner must have the self-control and the confidence to firmly establish the phrase and move on.

In general, when attacking credibility, the attack should begin early in the cross-exam so as to destroy the impression of credibility before the witness has an opportunity to bolster his own credibility.

Set up impeachments from transcripts with chapters that accredit the court reporter.  This technique establishes control over the witness and reminds jurors that the court reporter’s notes are both official and accurate.

Show bias, interest, or motive early in the cross-exam.

When numerous impeaching chapters are available, take the cleanest impeachment first.

Perform the most relevant impeachment before using less relevant impeaching chapters.

Do not have a fixed point in the cross-exam to impeach on collateral issues.  Cross on them as they come up.

A cross-examiner can build her own credibility though establishing a series of strong chapters that are safe.  Then the cross-examiner can develop risky areas of the cross.  Once the cross-examiner has introduced achapter that is more risky, the cross-examiner should not give verbal or behavioral cues that the chapter has increased risk.

At times the cross-examiner will ask leading questions to which the desired answer would be “yes” but  fully expects to receive A “no” answer.  Build a chapter around the anticipated “no” answer by placing the “no” answer at the end of that chapter.  Lead up to the anticipated “no” answer by a sequence of leading questions on facts that are going to produce “yes”.

The opponent has evidence that works well for him too.  It is best to sequence chapters that attack the power of the opponent’s case in the middle of the cross-exam.

In long cross-exams, treat each day or half day as a separate cross exam.

Once cross-exam has started the cross-examiner should be reluctant to change the predetermined sequence.  Ignore the bait and stick with the game plan.  Only change the sequence for good reason:  for example, an answer that contains information that can be immediately used against the witness.

Just because a chapter has been prepared doesn’t mean it has to be used.  After trial begins, a chapter may become unnecessary, unuseful or unsafe and may safely be abandoned.  Or, previously written chapters may safely be added.

End the cross-exam with a powerful chapter that uses the theme.  Select concluding chapters that are solid, safe and powerful in order to end on a high note.

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