Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters.
Scope of examination
While the scope of cross examination should generally be limited to the subject matter of the direct examination and matters affecting credibility, it is often expedient from the standpoint of court time and the convenience of witnesses to inquire in areas that are not covered on direct examination.
More damage is done by attorneys to their client's cases in the area of cross examination than any other area. All too often, gaps in an opposing party's case are filled by the other party on cross examination. Here are nine (9) rules to follow when considering whether and how to conduct cross examination.
Rule #1: Be brief, short and concise. Use short questions with plain words. Avoid long complicated sentences containing clauses with subordinate clause on subordinate clauses. On a good day you have three (3) points to make, make them and sit down. Remember, the shorter the time you are on your feet, the less damage you will do.
Rule #2: Never ask anything but a leading question.
Rule #3: Never ask a question to which you do not already know the answer.
Rule #4: Listen to the answer.
Rule #5: Do not quarrel with the witness. If you get a stupid answer, stop and see Rule #7 below.
Rule #6: Do not give the witness an opportunity to repeat what the witness said on direct examination. This only reinforces the other party's case.
Rule #7: Never permit the witness to explain anything.
Rule #8: When in doubt, stick to safe areas for cross, e.g., bias or lack of sincerity, faulty perception, faulty memory and prior inconsistent statements.
Rule #9: Avoid the one question that is too many.
- Edward J. Peterson, III
Stichter, Riedel, Blain & Prosser, P.A.