The main goal of cross-examination is to maintain witness control. Probably the best way to maintain control of the witness is by asking leading questions. Leading questions should be phrased more as statement rather than questions, which the witness can either confirm or deny.
The leading questions should be asked in a way that establishes one fact per questions. This way the witness has to either admit or deny the fact. If the witness denies a statement with two facts, then you don't know which fact the witness denied. Leading questions should also be asked in a progressive manner, where each questions builds upon the other in a given topic. In other words don't jump the gun. If there is a fact that needs to be established as a precondition to another fact, make sure to establish the preconditioned fact first. While this may seem obvious many attorneys will assume preconditioned facts, which allows witnesses to deny questions based on unestablished facts. Also if the witness denies a preconditioned statement you know the cross-examination might not be going in the direction you thought.
Questions on cross-examination should be as clear and short as possible. Terry MacCarthy use to talk about one word cross-examination, where some of your questions are a single word. This is probably a challenge/exaggeration that is not helpful, although short questions are generally more focused. They are also easier for the witness and jury to understand. Short questions make it harder for the witness to pivot, or answer the question in a way that doesn't really answer the question. If the witness fails to properly answer a question that is short and clear they will look like they are evading the question because they know the answer is not good for them.
If you ask a question in the form of a statement it may not actually sound like a question. Terry MacCarthy gives 4 ways to begin your questions to make it clear you're asking a question:
- It would be fair to say...
- You would agree...
- It's a fact that...
- Isn't it true that...
If you use the above phrases to start your first couple of questions the need for these phrases will go away, and everyone will understand your statements are actually questions. Some attorneys add the phrase "correct" or "right" at the end of their questions, but the need for these endings will go away too.
Many attorneys believe it is not practicable to ask only leading questions, that you need to take risk at trial, and ask some non-leading questions. While this may be true, non-leading questions should be used sparingly to minimize risk, and you should have good reason to believe the non-leading question is unlikely to hurt you. It should be noted on tough cases there are other considerations. The hope of a witness giving favorable testimony might be the best chance to win your case.
