How to Cross-Examine

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“It is the power over emotions that the life and soul of oratory is to be found.” Aristotle

In MacCarthy on Cross-Examination Terence MacCarthy remarks that the point of cross-examining a witness at trial is to (i) look good and (ii) to tell a story through short statements. “Obtaining helpful information, discrediting witnesses and their testimony, bolstering the credibility of other witnesses may be worthwhile goals within any given cross-examination but they are not its primary goals.” Above all, you want to look good.

By viewing the point of cross-examination as looking good, “you will not allow yourself to perform a cross-examination involving incantations, begging, or attacking.” Instead you will avoid meaningless pleasantries, attacks, and begging with the witness. “It is not worth making the witness look bad if you look worst.” 

The formula to a good cross-examination is: SHORT + STATEMENT = CONTROL

MacCarthy encourages lawyers to use short statements as questions because the length of the question usually determines the length of the answer. The long question is stupid. You do not know what part of the question the witness is answering. Also, short statements make it harder for the witness to hurt you, supporting the overall goal of looking good.

Open questions are defective because it invites the witness to participate in the cross-examination. As a participant the witness presents in the narrative mode, which enhances his/her credibility. We want them to be in the monosyllabic mode which decreases their credibility. Also, there will be little control over the witness and you will have abdicated your right to be the storyteller. And the cadence of your story will be interrupted.

To make it short:

  • A) eliminate prefixes (“isn’t it a fact that you went to the store”)
  • B) eliminate suffixes (you went to the store, isn’t that correct?)
  • C) use transitions – makes thought pattern clear to the audience. Good transitions aid memory recall and understanding of the speaker.

Ideally the witness would answer yes or no to the entire cross-examination. However, “when the enemy is in the process of destroying itself do not interfere. Do not say anything. Relish the silence. Every witness who delays an answer loses credibility.”

Interestingly, MacCarthy says that an entire cross-examination can be prepared before the trial begins. Plan your cross-examination as an easy to follow story for the judge. The best way to persuade someone is through storytelling.

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