15.3 - IV. Planning The Cross-Examination

JurisdictionNew York

Iv. PLANNING THE CROSS-EXAMINATION

Material embodying pertinent facts must be organized and marked in a way that permits immediate retrieval. Familiarity with the case not only is necessary to the competence and credibility of the lawyer’s presentation to the jury, but also makes clear to any witness cross-examined that the lawyer knows as much (or more) as the witness about the subject matter—a fact that has a chastening effect on any witness. Display of this knowledge can be communicated to the witness and the jury by incorporating specific information in leading questions.

Wherever the physical scene of an incident is important, it must be visited. Photographs should be taken. Organize all materials in advance. The entire effect of cross-examination can be destroyed by the disruption of the pace and rhythm of the trial caused by a cross-examiner’s failure to have at his fingertips the evidence with which he intends to confront a witness.2110 Fumbling with exhibits trying to find the right one or struggling to put the exhibits in the right order—this will diminish the jury’s perception of the lawyer’s competence and credibility.

Cross-examination requires precise language and specific questions. Finding contradictions in a witness’s prior testimony or statement requires the cross-examiner to be sure of what the witness has previously said. The lawyer’s summary must reflect the witness’s language accurately. It should state what the witness has said, indicate where it is said and cross-reference the statement to other locations in prior testimony, statements, exhibits or documents. It is not sufficient simply to go through grand jury, preliminary or suppression hearing transcripts, mark the important questions and answers, and then hope to find them quickly should the opportunity for contradiction arise. Fishing through transcripts in front of a jury projects a disorganized image, gives the witness an opportunity to reflect and recover, and dilutes...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT