Cross-examination is used to question “hostile” witnesses during depositions and in both civil and criminal trials. Cross-examination is usually more focused than direct examination, giving the witness fewer chances to explain, tell a story, or develop her answers beyond the “yes” or “no” the questioner is looking for. It is typically used to tease out the parts of a witness’s testimony that the party who called the witness does not want heard or that the witness herself would not likely admit to unless asked about it directly.
A “hostile” witness is a witness that is likely to be “for” the opposing side. Not all hostile witnesses have bad attitudes, however; the term describes whether or not the witness is likely to be sympathetic to one side, not whether the witness is likely to be stubborn or bad-tempered.
Cross-examination usually comes after direct examination during a deposition or trial. It can be used to question either a lay witness, such as the injured plaintiff or the defendant in a personal injury case, or it can be used to question an expert.
The primary difference between direct examination and cross-examination is that attorneys are parties are generally prohibited from using leading questions on direct examination, but they are permitted and even encouraged to use leading questions during cross-examination. A “leading question” is one that contains the expected answer in the question. Often, these questions may only be answered “yes” or “no.” Many leading questions are actually statements, with a throwaway question tag, like “that’s right?” or “isn’t that so?” attached to the end.
The decision whether or not to cross-examine a particular witness, and on what topics, is part of the overall strategy of presenting a case. However, many witnesses, especially important ones like the plaintiff or defendant, will face cross-examination. A typical cross-examination might go like this one from a car accident case, with the plaintiff’s attorney asking questions and the defendant answering them:
Q. When you got into your car around noon on January 6, 2010, you were late for a meeting, weren’t you?
Q. It was snowing, wasn’t it?
Q. And it was hard to see the road?
Q. Even harder to see the traffic lights?
Unlike direct examination, which often asks open-ended questions like “What happened?” in order to allow the witness to paint a complete picture for the judge and jury, cross-examination often focuses on only one or two things the witness said during direct examination, in order to expose them in more detail. For instance, in the example above, the defendant may have told his side of the story when his attorney questioned him, without many interruptions. The plaintiff’s attorney, however, wants to focus on how, despite the terrible weather and his inability to see stop lights until he was driving underneath them, the defendant chose to speed on the day of the accident in order to get to a meeting on time. Therefore, the questions on cross-examination will nearly all be related to the defendant’s speed just before the crash or the weather when the crash occurred.
Cross-examination is also commonly used to impeach a witness, or to show the jury that the witness or something the witness has said cannot be believed. Cross-examination is typically used to impeach a witness in any one of the following ways:
- by showing the witness is biased, is prejudiced, has a personal interest, or has a motive to lie
- by showing the witness has acted badly in the past or been convicted of a crime relating to lying, like fraud
- by showing that earlier in the case, the witness said something that contradicts what he’s saying on the stand now
- by showing the witness has a generally bad reputation when it comes to truth-telling
- by showing that an expert witness’s facts or opinions contradict the generally accepted knowledge on the subject (sometimes known as impeachment by “treatise”)
Cross-examination can be intimidating, especially for witnesses who have never been on the stand before. Keeping a few key points in mind can help witnesses survive cross-examination:
- Make sure you understand the question before answering. If you’re confused, say “I don’t understand the question” or “Could you please rephrase that?”
- Stick to “yes” or “no,” except when your attorney tells you not to or the question calls for other information. You may feel the urge to explain yourself, but if you try, you are likely to get cut off by an objection from the attorney or the judge.
- If you don’t know the answer to a question, say “I don’t know” or “I don’t remember.” Don’t guess.
- Be polite and patient at all times. This can be especially difficult during cross-examination, because it can feel like you’re being attacked. Remember that being confrontational is the attorney’s job. Staying calm and answering every question politely will make you look more credible in the eyes of the jury, as well.
- Always tell the truth. Being caught in a lie is far worse than simply telling what happened.