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 than questions, which the witness can either confirm or deny.
Each question should establishes only 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, and are easier for the witness and jury to understand. Short questions also 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.
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...
After using these phrases for the first few questions, they generally become unnecessary, as everyone understands your statements are intended as questions. Some attorneys add “correct” or “right” at the end of their questions, but these crutches usually fade as well.
Many attorneys believe it is impractical to rely exclusively on leading questions, arguing that some risk-taking is necessary at trial. While that may be true, non-leading questions should be used sparingly and only when there is a sound reason to believe the answer is unlikely to cause harm. It should be noted on tough cases there are other considerations. The upside of a witness giving favorable testimony might be the best chance to win your case.
