In law, cross-examination is the interrogation of a witness called by
one's opponent. It is preceded by direct examination (in the United
Kingdom, Australia, Canada, South Africa,
Pakistan known as
examination-in-chief) and may be followed by a redirect
(re-examination in England, Scotland, Australia, Canada, South Africa,
India, Hong Kong, and Pakistan).
1 Variations by jurisdiction
2 The art of cross-examination
3 Affecting the outcome of jury trials
4 See also
6 Further reading
Variations by jurisdiction
In the United States federal Courts, a cross-examining attorney is
typically not permitted to ask questions that do not pertain to the
testimony offered during direct examination, but most state courts do
permit a lawyer to cross-examine a witness on matters not raised
during direct examination. Similarly, courts in England, South Africa,
Canada allow a cross-examiner to exceed the scope of
Since a witness called by the opposing party is presumed to be
hostile, cross-examination does permit leading questions. A witness
called by the direct examiner, on the other hand, may only be treated
as hostile by that examiner after being permitted to do so by the
judge, at the request of that examiner and as a result of the witness
being openly antagonistic and/or prejudiced against the opposing
The art of cross-examination
The main purposes of cross-examination are to elicit favorable facts
from the witness, or to impeach the credibility of the testifying
witness to lessen the weight of unfavorable testimony.
Cross-examination frequently produces critical evidence in trials,
especially if a witness contradicts previous testimony. The advocate
Edward Marshall-Hall built his career on cross-examination that often
involved histrionic outbursts designed to sway jurors. Most
experienced and skilled cross-examiners however, refrain from caustic
or abrasive cross-examination so as to avoid alienating jurors. John
Mortimer, Queen's Counsel, observed that
"cross-examination" was not the art of examining crossly. Indeed, the
good cross-examiner gets a witness to assert to a series of linked
propositions culminating in one that undermines that witnesses'
evidence rather than pursuing an antagonistic approach.
Cross-examination is considered[by whom?] an essential component of a
jury trial because of the effect it has on the opinions of the judge
and jury. Few lawyers practice trial law or complex litigation and
typically refer such cases to those who have the time, resources and
experience to handle a complex trial and the commitment involved to
complete a trial successfully. Few attorneys get the practice
necessary to develop the techniques needed to do an effective job
cross-examining a witness.
It is sometimes referred to as an art form, because
of the need for an attorney to know precisely how to elicit the
testimony from the opposing witness that will help, not hinder, their
client's case. Typically, a cross-examiner must not only be effective
at getting the witness to reveal the truth, but in most cases to
reveal confusion as to the facts such as time, dates, people, places,
wording etc. More often than not, a cross-examiner will also attempt
to undermine the credibility of a witness if doing so will not cause
the cross-examiner to be perceived as a bully (such as discrediting a
very elderly person or young child).
The cross-examiner often needs to discredit a potentially biased or
damaging witness in the eyes of the jury without appearing to be doing
so in an unfair way. Typically, the cross-examiner must appear
friendly, talk softly and sincerely to relax the guarded witness. Or
on other occasions they may start by being more confrontational,
unsettling an already disturbed witness. They typically begin
repeating similar basic questions in a variety of different ways to
get different responses, which will then be used against the witness
as misstatements of fact later when the attorney wants to make their
point. If it is too obvious the questions are too clearly repetitive
and making the witness nervous, the other attorney may accuse the
cross examiner of badgering the witness. There is a fine line between
badgering and getting the witness to restate facts differently that is
The less the witness says, and the slower the witness speaks, the more
control they can maintain under the pressure of a crafty
opponent. The key for a witness is to understand the
facts that they believe to be the case and not add additional thoughts
to those facts, lest they be used to undermine the testimony. Sticking
to the brief known facts is key for the witness, making it difficult
for the cross-examiner to make the witness appear confused, biased or
deceitful. The cross examiner will assume the witness has been told
that and begin asking supporting questions about where the witness
was, what time it was, what the witness saw, what they said, and
sooner or later upon asking again the witness may use a different word
that will give the cross-examiner a chance to ask the question again
doubtfully and pointedly implying contradiction. The witness will try
typically to explain and clarify, which sometimes reveals weakness in
the witness's statements of fact. Other times the witness is just
being truthful but undermined for the purpose of casting doubt to the
jury and or judge.
There is a measure of drama that cross-examination adds to any trial
because of the challenging of the statements made by a witness. In the
1903 book titled
The Art of Cross-Examination by Francis L. Wellman
much effort is devoted to highlighting components of cross-examination
and the effect on trials of the past century. An example of an
inflammatory way a question will be asked by a cross-examiner to a
witness he was trying to undermine would be "What is your recollection
toDAY?" implying it was stated differently yesterday. Simply the
accent of syllables can leave a bewildered jury believing they must
put their guard up with a witness–or in some cases the
cross-examiner if they are not careful. The book freely uses accenting
in its dialogue to give the reader such insight as to how
cross-examiners rattle witnesses to obtain their desired effect for
In most[which?] common-law countries, cross-examiners are expected[by
whom?] to follow the well-established rule in Browne v. Dunn.
The key to effective cross-examination[according to whom?] is the
realization that true cross-examination is the cross-examiner
testifying and the witness agreeing or adopting the facts of the
question. This is accomplished by the use of leading questions;
questions which suggest the answer and which can only be answered with
a yes or no. Witnesses will of course attempt to explain their answer
or even attempt to answer a question not before that witness in order
to deflect the impact of the question. The cross-examining attorney
has the right to object to non-responsive answers and to call upon the
court to admonish the witness to answer the question as posed. The
cross-examining attorney will ask only those questions which assist
his or her cause and never allow the witness to repeat testimony
elicited on direct examination.
Affecting the outcome of jury trials
Cross-examination is a key component in a trial and the topic is given
substantial attention during courses on
Trial Advocacy. The
opinions by a jury or judge are often changed during cross examination
if doubt is cast on the witness. In other times a credible witness
affirms the belief in their original statements or in some cases
enhances the judge's or jury's belief. Though the closing argument is
often considered the deciding moment of a trial, effective
cross-examination wins trials.
Attorneys anticipate hostile witness' responses during pretrial
planning, and often attempt to shape the witnesses' perception of the
questions to draw out information helpful to the attorney's case.
Typically during an attorney's closing argument he will repeat any
admissions made by witnesses that favor their case. Indeed, in the
United States, cross-examination is seen as a core part of the entire
adversarial system of justice, in that it "is the principal means by
which the believability of a witness and the truth of his testimony
are tested." Another key component affecting a trial outcome is the
jury selection, in which attorneys will attempt to include jurors from
whom they feel they can get a favorable response or at the least
unbiased fair decision. So while there are many factors affecting the
outcome of a trial, the cross-examination of a witness will often
influence an open-minded unbiased jury searching for the certainty of
facts upon which to base their decision.
^ Ehrhardt, Charles W. and Stephanie J. Young, "Using Leading
Questions During Direct Examination" Archived 2008-11-03 at the
Wayback Machine., Florida State University
Law Review, 1996. Accessed
November 26, 2008.
^ Lubet, Steven; Modern
Trial Advocacy, NITA, New York, NY 2004 pp. 83
et. seq. ISBN 1556818866
^ Mahoney, Kevin J (2008). Relentless Criminal Cross-Examination.
Costa Mesa, California: James Publishing. ISBN 158012125X.
^ Dreier, A.S.; Strategy, Planning & Litigating to Win; Conatus,
Boston, MA, 2012, pp. 79-85; ISBN 0615676952
^ Davis v. Alaska, 415 U.S. 308 (1974).
Look up cross-examination in Wiktionary, the free dictionary.
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Oxford: Oxford University Press. ISBN 0-19-921220-1.
Du Cann, Richard (1993). The Art of the Advocate. London: Penguin.
Evans, K. (1993). The Golden Rules of Advocacy. London: Blackstone
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Morley, I (2005). The Devil's Advocate. London: Sweet & Maxwell.
Ross, D. (2005). Advocacy. London: Cambridge University Press.
Wellman, F. (2007) . The Art of Cross-Examination. Standard
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Mahoney, K. (2008). Relentless Criminal Cross-Examination. James
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