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Cross-Examination

CROSS EXAMINATIONCross-examination is the process of questioning witnesses called to the stand during trial by the opposing party. The structure at trial is typically as follows:

First, the plaintiff calls a witness and proceeds with direct examination; next, the defendant has an opportunity to cross-examine the witness. This happens with each of plaintiff's witnesses. Following the plaintiff's case, the defendant calls his/her own witnesses to testify, and proceeds with a direct examination of each. The plaintiff has an opportunity to cross-examine each individual defense witness.
Cross-examination may also be followed by a redirect or re-examination. Redirect is the process by which a party again questions their own witness, following their own direct examination and their opponent's cross-examination of said witness, to strengthen their point, reemphasize certain points brought up in the initial direct examination, or to rehabilitate a witness whose credibility has been attacked by the opposing party on cross-examination.

Scope

The scope of questioning on cross-examination refers to the limits placed upon the party doing the questioning. In general, the scope of cross-examination is limited to information revealed during the course of direct examination. In other words, the cross-examining party is not allowed to ask questions about new topics unrelated to those facts established by the opposition during direct examination.
Cross-examination is intended to either dispute the truth of the evidence offered through direct examination or to attack the credibility of the witness offering the evidence. Many times cross-examination is used by attorneys to push witnesses and try to create tension which may result in the decision maker taking a closer look at the witnesses credibility.

Leading Questions

Unlike on direct examination, leading questions usually ARE permitted on cross-examination. This is because the witness being cross-examined, being a witness testifying at the request of the questioner's opponent, is more likely to be sympathetic to and/or cooperative with the opposing party. Leading questions may thus be necessary to get complete, truthful answers.

Weakening the Opponent's Case

The main goal of cross-examination is to attack the case presented by one's opponent. There are several ways in which to accomplish this goal, and thus strengthen one's own case:
Witness Bias

Much of the work towards presenting a successful trial, including effective cross-examination, occurs before the trial begins. Witnesses that will be called by one's opponent are, for the most part, revealed during the discovery process prior to trial. It is then useful to discover any information that may be used to attack the integrity or honesty of an opposition witness.
Attacking a person's character directly is frowned upon by courts, but genuine, concrete evidence of a person's inability to testify in an unbiased, impartial way is not only allowable but imperative to weakening an opponent's case. Helpful information that could serve to demonstrate witness bias may include a special relationship: for example, that the witness is a friend, relative, or colleague of the opposing party, or that the witness has some sort of interest ”financial or otherwise” in seeing the opposing party prevail.

Witness Incapability

Cross-examination may be used to show that a witness' testimony is unreliable, even if the witness is not clearly biased toward the opposing party. For example, one may be able to prove that an eyewitness was not in a position to offer truly accurate and reliable evidence: poor eyesight but no glasses, an obstructed view of events, etc.
It is also possible to appeal to the judge or jury's common sense by playing up the improbability or even impossibility of a sequence of events occurring in the way an opposition witness claims. Parties must remain sensitive to potential hearsay, or evidence offered for the truth of what it asserts but based on second-secondhand (or even further removed) information rather than direct experience.

Inconsistent Statements

Inconsistent statements are an extremely useful tool that may be used on cross-examination to discredit an opposition witness. Many times, witnesses will have made a previous statement prior to trial, as in a deposition, signed statement to police, or answers to interrogatories. Parties should have such documents readily available at trial. If a witness responds to any question on cross-examination in a way that is inconsistent with a previous statement he/she made, their credibility is severely damaged before the decision maker.

Impeachment

Impeaching a witness is NOT the same as discrediting him/her, as described above. Impeachment during cross-examination is essentially catching the witness in a lie. If the witness testifies one way, and the cross-examining party has concrete evidence to show that the testimony is a lie, the witness will be impeached, branded as a liar by the court. Impeachment of an opposition is very helpful to a party, as it not only serves to cause the decision maker to question everything that witness professes, but also to potentially become disillusioned with the opposing party, which chose to put an untruthful witness on the stand to testify.
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