Cross-examination
Cross-examination is a critical component of the judicial process, particularly within the Anglo-American legal system. It occurs after direct examination, where an attorney questions a witness to establish credibility. During cross-examination, opposing attorneys aim to challenge and discredit the witness's testimony, often employing rhetorical techniques to highlight inconsistencies or biases. This process is rooted in the Sixth Amendment of the U.S. Constitution, which guarantees defendants the right to confront witnesses against them.
The effectiveness of cross-examination lies in its ability to reveal the limitations of witness testimony, as even credible witnesses can make mistakes. Legal professionals recognize that the goal is not merely to uncover the truth but also to minimize the impact of opposing evidence. Cross-examinations can be unpredictable; a single question may lead to unintended revelations that could harm a case. Therefore, while cross-examination is seen as a dramatic and strategic element of trials, it requires careful consideration to avoid jeopardizing the attorney's position. Overall, cross-examination plays a pivotal role in shaping the outcome of legal proceedings by assessing the reliability of witness accounts.
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Cross-examination
SIGNIFICANCE: The fact that unexpected revelations from witnesses can upset the development of cases makes cross-examinations one of the most dramatic—and sometimes perilous—parts of the judicial process.
In trial testimony, attorneys try to establish the credibility of their own witnesses through direct examinations. When they complete their questioning, the opposing attorneys then cross-examine the same witnesses and try to undo their credibility. In the popular mind and media, cross-examination offers the appealing prospect of a clever interrogator—such as Erle Stanley Gardner’s fictional Perry Mason, or one of his innumerable imitators—uncovering deception and establishing guilt.
For legal experts as well, cross-examination is at the heart of judicial proceedings. John Henry Wigmore , a famous early twentieth century theorist of the law of evidence, said of the matter:
If we omit political considerations of broader range, then cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial procedure.
The Sixth Amendment to the US Constitution guarantees the right of defendants to confront witnesses brought against them. Cross-examination gives defendants—through counsel—the opportunity to put their opponents’ evidence to the test. However, within the adversarial format of the American judicial system, emphasis in cross-examination is often less on testing the truth of claims than on discrediting inconvenient witnesses.
Many standard cross-examination techniques involve rhetorical maneuvers designed to capitalize on favorable concessions and to minimize the impact of unfavorable testimony on juries. The first question that trial counsel face is whether to cross-examine at all. Legal lore is replete with stories of attorneys who asked one question too many and elicited unanticipated answers that damaged, instead of helped, their cases.
The primary aim of cross-examination is to impugn the veracity of witnesses and thereby lessen the weight of the evidence supporting the opposing side. In practice, achieving that goal involves suggesting—if not actually proving—that a witness’s testimony is incorrect or incomplete. Witnesses seem less believable to juries if they are shown to be biased, to have interests in the outcomes of cases, to be generally careless with the truth, or to lack the ability or opportunity to secure the knowledge they claim to possess.
For reasons well known to psychologists, judges, and attorneys, witnesses, even eyewitnesses, are often mistaken in their claims about who did what to whom. Members of juries, however, are less likely to be sophisticated about such matters, so one purpose of cross-examination is to alert them to the natural and inevitable limitations of testimony.
Witnesses in special categories, such as court-recognized experts, or children, require special treatment. In general, however, the basic object of cross-examination is to attack witnesses’ credibility, without alienating judges or—especially—juries.
Bibliography
Brodsky, Stanley L., and Thomas G. Gutheil. The Expert Expert Witness: More Maxims and Guidelines for Testifying in Court. Washington, DC: American Psychological Association, 2016. eBook Collection (EBSCOhost). Web. 26 May 2016.
"Five Steps to an Effective Cross-Examination." Lexis Nexis, 31 Jan. 2023, www.lexisnexis.com/community/insights/legal/b/thought-leadership/posts/five-steps-to-an-effective-cross-examination. Accessed 25 June 2024.
Johnson, James A. “Cross-Examination.” Maryland Bar Journal 48.4 (2015): 20–25. Legal Source. Web. 26 May. 2016.
Lamb, Michael E., and John R. Spencer. Children and Cross-Examination: Time to Change the Rules?. Oxford: Hart Publishing, 2012. eBook Collection (EBSCOhost). Web. 26 May 2016.
Mauet, Thomas A. Trial Techniques. 6th ed. New York: Aspen Publishers, 2002.
Wellman, Francis L. The Art of Cross-Examination. New York: Macmillan, 1936. Reprint. New York: Simon and Schuster, 1997.
Wigmore, John Henry. Evidence in Trials at Common Law. 2d ed. Boston: Little, Brown, 1961.