Nothing is more important on cross-examination than maintaining control of the witness.
The vast majority of witnesses on cross-examination are not friendly to you, which is why opposing counsel called them as a witness. If you lose control of the witness they will likely offer damaging testimony, which is even worse when it is elicited on cross-examination.
As previously stated your goal on cross-examination is to maintain witness control. As a result an effective cross examination will usually be limited to questioning the witness about:
1) Favorable evidence/information in your possession;
2) Questioning the witness on issues they can't reasonably deny; and
3) The answer to the question can't reasonably hurt you.
Answers by a witness on cross-examination should be handled using the following categories:
- If the witness concedes the answer you want (usually by agreeing with your leading question) move on, so the witness won't be able to add unfavorable testimony.
- If the witness gives you a gift move on, so the witness can't take the gift back.
- If the witness unreasonably fails to concede the answer, then follow up by questioning the witness about the unreasonableness of their answer.
- If the witness denies a question when you have the impeaching evidence, then impeaching the witness. Often attorneys make the mistake of trying to refresh their memory.
- If the witness gives a non-responsive answer then:
- If the non-responsive answer is an attempt to avoid answering the question you can simply ask the same question again. This will point out the fact the witness is avoiding the question, while forcing them to answer the question.
- If the non-responsive answer constitutes inappropriate testimony, then you will likely have to seek a remedy from the court. This will usually be in the form of a mistrial, a curative instruction, or striking the testimony.
- Asking for a mistrial is not a bad remedy, but it could be costly in terms of time and money.
- Be careful when asking for a curative instruction, as the jury can't unhear the testimony, and the court might repeat the damaging testimony as the judge tells the jury to disregard it.
- You can move to have the testimony stricken, but again the jury can't unhear the testimony. If you need an answer to this question after getting the answer stricken you may ask the court to direct the witness to answer the question to avoid another unresponsive answer.
- The majority of the time I let these statements go as the remedies are generally inadequate, and I try to avoid asking the court for help.
The majority of the time I let these statements go as the remedies are generally inadequate, and I try to avoid asking the court for help.
On cross examination a lawyer should take the Hippocratic Oath to do no harm.
Since you want to make sure the witness does not hurt you on cross-examination you will generally want to make your point and move on. There is no reason to keep questioning the witness after you've made your point. By continuing to question the witness after you have made your point it will give the witness a chance to give unfavorable testimony.
Make sure you cite to any evidence you're questioning the witness about in your notes. It can be very difficult and stressful to try to find impeaching evidence at the podium if the witness gives an inconsistent statement.
