An effective cross-examination exposes weaknesses in the other side's case and builds your client's story.
However, to make the most of cross-examination, you must be on top of your game by arming yourself with effective cross-examination techniques and strategies.
The best cross-examinations add to your client's story, theme, and theory during trial. By the end of the trial, you'll deliver a Closing Argument that touches on the highs of your cross-examinations.
Unfortunately, a bad cross-examination can be disastrous to your client's case and can even cause the jury to turn against you.
No pressure, right?
Here, we'll be covering the One-Fact, One-Question technique because it is a powerful cross-examination method that simplifies the facts for the jury while keeping the witness under control.
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The Basics of Cross Examination
Before exploring the One-Fact, One-Question technique, let's examine some ground rules of cross-examination so that the technique becomes airtight.
Do Not Ask One Question Too Many
No matter the temptation, avoid trying to push the witness to confess an ultimate issue.
This mistake is often referred to as asking one question too many. Here at Law Venture, we refer to it as the Scooby Doo moment and is one of the biggest mistakes a lawyer can make on cross.
Only Ask Leading Questions
Leading questions are questions that suggest the answer. You can learn how to craft your leading questions in this YouTube video.
You want to avoid open-ended questions during your cross because open-ended questions give the witness too much control with where to take the conversation. By only asking leading questions that suggest yes/no answers, you'll be able to control the direction of the examination.
Let's examine these two questions:
Open-Ended Question: What color is your car?
Leading Question: Your car is red, correct?
Between these two questions, you will notice that the second question suggests the answer you wish to get from the witness. It is also more impactful because it makes the witness assume you already know the facts. This is how you can begin to establish and maintain control of the cross-examination.
So do away with the "who, what, when, where, why, and how" questions. Only ask questions that can be answered with a simple "yes" or "no."
Less is more
One common mistake that attorneys make is asking too many questions on cross-examination. In doing so, the attorneys give the witness an opportunity to rehash and repeat their testimony, which may cause the jury to lose interest in the case.
The rule of primacy should apply when drafting your cross-examination questions. This means that your initial questions should be effective and hard hitting.
You should also end on a strong note as well because this may set the lasting impression on the jury.
Therefore, start strong and end strong.
But what about the middle? Well that's up to the lawyer. However, the rule of thumb is that the best cross-examinations tend to be short.
As a result, if the boring part is the middle of the cross, then determine whether you can cut some of your questions out. Some times the best cross-examinations are the shortest ones.
Always maintain control of the witness
Maintaining control of the witness is a vital factor to achieving a successful cross-examination.
As the lawyer, cross-examination is one of the few times that you are the star of the show. This is your stage, so control it and own it.
However, some witnesses are more difficult to control than others. The more difficult witnesses tend to be evasive and seemingly refuse to just answer your question. But no matter how hostile or evasive the witness is, never find yourself arguing with them.
Instead, insist on getting a clear "yes/no" response to your question. If you argue, then you'll come out on the losing end.
If the witness continues to dodge the question, then go back and repeat your question. You may want to emphasize that your question is only asking for a clear "yes/no" for the jury. Doesn't the jury deserve a clear response?
Finally, no matter how hostile a witness is, never lose your cool. There's no need to be rude or to show anger. If the witness wants to make themselves look poorly in front of the jury, let them do it on their own.
Effective Cross-Examination Technique
With the above foundation out of the way, it's time to cover the One-Fact, One-Question technique! This effective cross-examination technique requires lawyers to only include one fact per leading question.
The genius is in its simplicity. To illustrate, let's check out a scenario.
Scenario: you are a prosecutor in a DUI case (driving under the influence). Here are the essential facts of the case:
- The defendant was at a bar;
- The defendant admits to taking two shots and drinking one beer;
- Eyewitness testifies to seeing the defendant drink the above amounts;
- The defendant crashed into a street light just down the road from the bar and is charged with DUI.
It's worth noting that the defendant doesn't have to testify, however, let's assume that the defendant does testify in this case.
Let's cover some cross-examination examples using this scenario.
Cross-Examination Example using Open-Ended Questions
In this cross-examination example, we will use open-ended questions to cross-examine the defendant.
Q: What happened the night of the wreck?
A: Well, I was at this bar. You know, I wasn't drunk or anything like that. I just ordered a shot. Then I ordered water. After about an hour, I got to my car and drove out. But I had an allergic reaction. Then I crashed my car. It wasn't because I was drinking. I had a medical condition. It was an accident.
In the above example, the defendant has essentially taken control of the cross-examination. By asking an open-ended question, you have given the defendant a platform to justify why the defendant crashed the car, which can hurt your case.
Again, it's imperative that you ask only leading questions during cross-examination.
Using Leading Questions during Cross-Examination
Let's use leading questions to cross-examine the defendant in the same scenario.
Q: The night of the incident, you were at Diamond's Little bar?
Q: You ordered a shot?
Q: You ordered a beer?
As you can see, the questions suggest the answers and fit into the prosecutor's theory that the defendant was indeed intoxicated. It leads to just one conclusion by getting the defendant to agree or disagree. It gives you the control and points to the direction you want to go.
One-Fact, One-Question Cross-Examination Example
Using everything we have learned, let's use leading questions to transform this into one-fact questions.
Q: You were at the bar?
Q: You ordered a shot?
Q: Drank the shot?
Q: Ordered a second shot, right?
Q: Drank that shot too?
Q: Then you ordered a beer?
Q: Drank the beer too?
Q: Then stood up?
Q: Got to your car?
Q: Got behind the wheel?
Q: Started the engine
Q: Then drove into the street light?
This cross technique incorporates one new fact per question. The questions only suggest one answer. Moreover, the questions are simple and asked in a rhythmic manner that takes the defendant on your path of questioning.
Contrast the one-fact rule, with asking the following:
Q: You were at the bar and ordered a shot that you eventually drank, correct?
Notice that the above question is not only more cumbersome to say, but it's confusing because it bundles in three separate facts into a single question.
Simplicity is king. One fact, one question!
Cross-Examination of an Evasive Witness
Sadly, the One-Fact, One-Question technique cannot prevent you from having an evasive witness. Rather, this effective cross-examination technique will help keep that evasive witness on your path of questions.
These types of witnesses may want to argue with you, avoid answering the questions, or try to explain away their conduct.
In that case, what do you do?
Simply remember: Do not give up control.
Let's go through another cross-examination example:
Q: You were at the bar?
Q: You ordered a shot?
Q: Drank the shot?
Q: Ordered a second shot?
A: Well, I wasn't drunk…
(keep control. Ignore the temptation to go off track and repeat the question)
Q: But, you ordered a second shot?
If they try to argue or take you off course, simply go back to the question. There's no need to argue. And definitely don't fall for the trap of asking open-ended questions.
Stay diligent: one fact per leading question.
By keeping the question simple, it puts pressure on the witness to answer the question. Otherwise, evading a simple question can cause a jury to assume that the witness is hiding something.
One-Fact, One-Question is a cross-examination strategy that will take your cross-examination to the next level. In doing so, it can help you prove your case's theme and theory.
But don't forget that this technique involves specific rules such as avoiding the Scooby Doo moment, asking only leading questions, never giving up control to the witness, and keeping your cross brief.
To truly master this cross-examination technique, don't be afraid to practice it with friends, family, or colleagues under a mock trial scenario. You don't want your next courtroom appearance to be your first time doing something new.