Cross Examination

• Publication year: 1995
• Pages: 35
• Citation: Vol. 8 No. 9 Pg. 35

Cross Examination Vol. 8 No. 9 Pg. 35 Utah Bar Journal November, 1995

Robert S. Campbell, Jr.

I. INTRODUCTION

Much has been written and more said about the judicial philosophy and psychology of cross examination. There is no reason to expect that this will be the last. In fact, some of the best materials written on cross examination were published over 50 years ago. More recently, Exhibit A of "how not to conduct cross examination" has been seen on virtually every television set in America this past year as a result of a sensational criminal trial in Los Angeles.

Purportedly skilled cross examiners have appeared on the screen incapable of asking short, punctuated and non-repetitive questions. Rather, the examination has been conducted as though a jury is incompetent to arrive at even the most self-evident conclusion, but rather must be led by the paw to the mundane conclusion of every redundant point.

In all but that one California courtroom, no other method apart from cross examination has yet to be invented in our socratic process which, if employed properly, is better able to penetrate bias, expose fault and phony argument, and reveal the ultimate truth. It is a method which, upon proper use, can devastate the opposite side's case. As the Supreme Court of Utah wrote:

There is no other instrument so well adapted to discovery of the truth as cross examination, and as long as it tends to disclose the truth it should never be curtailed or limited. Any inquiry should be allowed which an individual about to buy would feel it in his interest to make.

State of Utah v. Peak, 265 P.2d 630, 637 (Utah 1953).

Despite its importance, cross examination remains one of the most difficult skills to utilize effectively. The Primer which follows assumes the typical case, with the unusual case or witness almost always invoking an exception to the rule. It will examine general concepts applied to a typical witness which have been assembled through association with some of the best common law trial lawyers in this Country and England.

II. THE FOIBLES OF CROSS EXAMINATION

In many if not most cases where it is a close call on the facts, cross examination may be the key to unlocking the mysteries or the conflict in the evidence. Often, it will determine the outcome in the case. For a tool that can be so decisive in result, it is wrapped in a shroud of myths which are largely responsible for the perplexities of cross examination. In providing a setting for strong and meaningful cross examination, it is well to spend a few moments reviewing the myths of what cross examination is not.

MYTH 1 — Every adverse witness must be cross examined as to what has been said on direct examination.

MYTH 2 — Waiving cross examination is the sign of a weak lawyer or a frail case.

MYTH 3 — Every...