Plenty of us are familiar with the basic skills of cross-examination: Always lead, Don’t ask that one last question that lets the witness deny the conclusion you want to draw, Don’t ask a question if you’re not pretty sure of the answer, Don’t let the witness explain, Take it one fact at a time, Have a goal, etc. They’re good rules to follow in pretty much every case. But they’re not really a blueprint to follow for crafting a useful cross. Every case is different, and each witness requires a different strategy.
One of the most challenging types of cross-examination comes in the he-said/she-said situation. That’s not just domestic disputes, but any situation where there are only two people who really know what happened, and one of them is testifying against you. Maybe it’s a purported victim, telling a story about a date rape that your client insists was consensual. Maybe you’re a prosecutor in an undercover buy-and-bust, and the defendant is testifying to a story completely different from what your undercover is saying. It happens in all kinds of cases, to all kinds of lawyers.
The he-said/she-said is especially tough when the other side’s witness is telling a cogent story that makes sense on its face. Taken at face value, it rings true — though that doesn’t mean it is true. A false story can be concocted out of pretty much any factual situation, and a lie that fits a juror’s worldview can be more believable than the truth. A lying witness has lived just like anyone else, and has just as many experiences to test the believability of their stories against. By the time the witness is testifying, there’s been plenty of opportunity to hone and perfect that story. (And, of course, they might just be the one telling the truth, or at least the version closest to it.) It’s hard to even prepare for such a cross.
If all you’ve got to challenge them with is your own side of the story, you’re not going to have a very effective cross-examination. Q: “Are you telling this jury that my client’s story is wrong?” A: “Yup” — that’s not how to win a case. But lots of the time, that is all you’ve got. What can you do?
Well, when all else fails, there are three simple steps to a basic but effective cross-examination here. When all else fails, and you’ve got nothing else to go with, you can always do these three things. It may not guarantee you a victory, but if you do these three things, you will have at the very least done a workmanlike job of it. And often enough, it gets results.
STEP 1: LOCK IN THE STORY
The first thing you do is (more…)