A Basic Introduction to Cross Examination

A Cross-Examination is a leading question-answer based exchange between an attorney and a witness. The purpose of a cross exam is to extract unfavorable facts from the case that may help discredit the witness.

Cross exams utilize leading questions which are not open-ended and implies an answer.

Leading Questions:

→ The color of the sky was blue, right?

→ Isn’t it true that the sky was also cloudy, correct?

Context

A good crossing attorney will never ask a question to which he doesn’t already know the answer. A crossing attorney also does not like surprises and asking open-ended questions is one of them. Asking questions about who, what, when, where, and why is begging for problems.

The hardest part of crossing a witness is witness control. Many witnesses can be hostile, and the attorney needs to keep themselves under control at all times. By asking the right questions and keeping control of the witness while still being cordial, the attorney has a better chance of keeping the witness under control.

A crossing attorney should create short, to the point questions. By doing this, you limit the ability of the opposing witness to disagree with the question and argue your question. Questions must be undeniable. This means that you are asking questions that the witness must agree with since the witness cannot give an answer that differs from his affidavit without being impeached.

One question that a crossing attorney should never ask is called the Ultimate Issue Question. The Ultimate Issue is a question that the jury is there to decide upon. For example, asking the witness, “Isn’t it true that you hit the person with your car?”, Is never a good question or idea. Witnesses will never admit guilt on the stand.

Filibustering

Teams should NEVER filibuster! I will talk about this in the witness section, as well, but you NEVER want to filibuster. It may be a good strategy, and other teams may be using it, but they’re wrong in using it as a technique.

Filibustering may be tempting since you can destroy the other teams time and make the attorney lose witness control but the jurors will pick up on it and give you a low score based on it. Filibustering is also very rude and annoying to other teams and the jurors judging you. Only teams that are atrocious use filibustering as a technique. Furthermore, this doesn’t mean that you can’t explain yourself on Cross-Examination, but I would not go off topic. If the opposing attorney gives you an open-ended question, you’re allowed to go off as you please since the question is open-ended.

Tips

1. Rule of Three

Simple Chronology is a dull and outdated way of organization. In Mock Trial, cross-examinations should be organized in three topological points. Topical Organization is always most straightforward to do on cross-examination.

2. Be Friendly

Being friendly elevates your credibility with the jurors, gives you more favorability with the jurors and may extract more answers from your witness.

3. Get the Details

Focus on the details and probe for inconsistencies. Details are useful in preventing the witness from telling long and emotional stories.

4. Build your Point

Witnesses are more likely to give you the answers you want if they can’t see what you’re doing but make sure it’s clear at the end of the cross-examination. Don’t worry about starting strong on a cross.

5. Save Credibility Attacks for the End

Once you attack a witness’s credibility, don’t expect any more answers. Building incrementally won’t work, as well.

6. End Strong

Never sit down on an objection, and always have a backup question. It’s best to save the best questions for last.

7. Preparation is Key

Always have line numbers from the witness’s affidavit next to your questions so that you’re ready to impeach. Remember to bring your printed cross-examination with you even though you won’t be using it on the stand. You’re using it to find line numbers for impeachment

Know your witness’s affidavit better than your opponent.

8. Create A Style

What kind of attorney will you be? It’s best to be kind and controlled, but you will also be more aggressive? Attorney’s create their own style and signature to leave an impression on others.

A Basic Introduction to Direct Examination

A Direct Examination is an open-ended, conversational line of questioning between an attorney and their witness. The purpose of a direct exam is to extract facts that help argue your case theory in a way that is easily understandable to the judges.

Direct’s utilize open-ended questions to extract useful facts. There are two types of with used in Mock Trial: leading questions (Cross Exam) and open-ended questions (Direct Exam).

Open-Ended Question:

→ What color was the jacket?

Leading Question:

→ The jacket was blue, correct?

You NEVER ask leading questions during a direct examination. In Mock Trial, we only ask open-ended questions during a direct examination.

As a result, this leads to the next point. You cannot ask a very open-ended question. A very open-ended question is a question with no specific topic. Not only is it unfair to the opposing team but it confuses the jurors.

A Very Open-Ended Question:

→ What happened next?

A Perfect Open-Ended Question:

→ After the defendant hit you, what did you do?

As you may have noticed, a perfect open-ended question focuses on a specific topic but does not imply an answer.

The Three U’s

Witnesses and NOT Attorneys should be the focal point of a direct examination. A rule that I learned is called, “The Three U’s.”

  1. Understandable
  2. Unimpeachable
  3. Unforgettable

First! Your witness should be understandable. Therefore, they should give clear, descriptive, and relevant answers.

Second! Make sure your witness memorizes their witness statement. Above all, witnesses should be unimpeachable as impeachments lower credibility.

Third! Your witness should be unforgettable. Simply, the witness should be memorable to the jurors as they will be scoring based on performance.

Witnesses

There are various types of witnesses. The three most common witnesses are fact-based witnesses, character-based witnesses, and expert witnesses. They are all important as they all perform different functions when combined in a solid case theory. There are much more, but these are the most common.

Fact-based Witnesses

Fact-based Witnesses provide relevant facts in the case. Similarly, they are considered “lay” witnesses and give testimony limited to things they’ve observed or experienced. However, they are allowed to make reasonable conclusions.

Character-based Witnesses

Character-based Witnesses provide relevant fact towards the background of the defendant. In addition, these witnesses know the defendant because of a specific interaction (good or bad) that they’ve had with them. For example, these can often be parents, partners, bosses, teachers, etc.

Expert Witnesses

Expert Witnesses are limited to personal knowledge and may only provide relevant facts that they’ve gathered solely for the purpose of testifying in a trial. However, a role that they possess over the other witnesses is that they can form an opinion beyond what they see.

In technical terms, an expert may offer opinions on the cause of the situation, explain the actions of others, draw conclusions on the basis of circumstances, comment on the likelihood of events, and state beliefs regarding issues as the fault, damage, negligence, and avoid-ability.

REMEMBER, “Who, What, When, Where, and Why,” when you are writing your direct examination.

Tips

1. Rule of Three

Simple Chronology is a dull way of organization. Better direct examinations are organized into three topological points. For instance, a trick that can be used is to order points strategically using the concept, Primacy & Recency.

2. Who, What, When, Where, and Why

When you are writing your direct examination, remember to incorporate this basic concept. In addition, if your question or answer cannot answer these questions, it should not be a question.

3. Primacy, Recency, and Frequency

This is the concept that can be used to order your points strategically. Simply, it states that your points should be organized based on what is important, least important, and most important.

  • Primacy – Jurors remember what they hear first
  • Recency – Jurors remember what they hear last
  • Frequency – Jurors remember what they hear often

3. Looping

In Programming With Looping, the attorney takes the answer the witness just provided and loops that answer into the next question.

Example: After the defendant hit you, what did you do?

4. Transitions

  • Phrases – The attorney uses a phrase to help the jury realize a change in topic.
  • Tools – The attorney uses exhibits to help the jury realize a change in topic
  • Movement – The attorney moves to help the jury realize a change in topic. It’s best to move in a Triangle Formation.

5. Polish their Credibility

If your witness has issues with credibility, fix that issue on direct examination rather than letting the opposing team expose it in cross-examination.

6. Strategic Objections

You can place strategic objectionable questions in your direct examination so that you can demonstrate your knowledge of the rules of evidence to the jurors. Furthermore, you should only do this if you know you will win the objection.

The Three U’s of Theme and Theory

Theme and theory are fundamental to a Mock Trial case-in-chief. Case theory will act as the game plan while the theme will guide the jurors through the case-in-chief.

Case Theory

Finding a case theory is not impossible. When you receive the case material, you will be overwhelmed with a lot of information that may further or hold back your case. However, the ultimate goal is to take this mess of information and organize it into a compelling and intelligible story.

Firstly, remember the Three U’s! Understandable, Unimpeachable, Unforgettable. 

Understandable

Cases will have good and bad facts. Use a Venn diagram, like the one you learned in elementary school, to organize your good, bad, and neutral facts. This information can then be used to develop a theme or can be developed around your theory. It isn’t a bad idea to make use of bad facts. In addition, always mitigate your bad facts than letting the opposing team expose them.

Unimpeachable

Case theory has to be unimpeachable. In other words, your theory has to be a solid theory with absolutely no loopholes as it looks awful if your theory can be used against you.

Unforgettable

Most teams will forget this step as it tends to be the most difficult. The story not only has to compelling and intelligible, but it has to be unforgettable. The opposing team will probably have a compelling and intelligible story but you can always be one step ahead with an unforgettable theme and theory. This can be accomplished with the way you organize your case-in-chief. You’ll learn more about this later as you read the entire guide.

Theme

Themes are a part of human life. We have themes for everything. For example, stories are usually centered and organized around a central theme. Themes are supposed to get your point across in one short, catchy line, phrase, or word. For example, you may use the word “Honesty”. Or you may use the expression, “Revenge is a dish best served cold.”

O.J. Simpson trying on the gloves during the trial to prove theme and theory. Credit: Sam Mircovich/Reuters

Think about the OJ Simpson Murder Case. Lawyer Johnnie Cochran, OJ Simpson’s defense attorney, emphasized his theory of the case with this theme: “If the glove does not fit, you must acquit.” (FUN FACT: This was not his original theme) This was used because the glove found at the murder scene did not fit the hand of OJ Simpson and Cochran used that fact to generate a whole theme around it. Ultimately, OJ Simpson was controversially found not guilty.