Trial Techniques – The Art of Cross-Examination Part IV

In this our fourth entry, we discuss again the objectives of cross-examination. We have talked about obtaining evidence which is favorable to one’s case, impeaching or corroborating the testimony of another witness in the case and discrediting the testimony of the witness through proof of prior convictions, inconsistent statements or prior writings. In this entry, we address another alternative to cross-examination and that is “to appear to be cross-examining a witness without really doing so” because counsel really does not have anything that can be accomplished otherwise.
A classic example of what we address in this article is the testimony of a wife or close friend who is called to testify in support of their spouse or friend. Here, questions about the relationships with the parties, cross-examination about their having met with lawyers concerning their testimony before taking the stand and other such innocuous matters may appear to be effective cross-examination in front of the jury when in actuality there is very little that can otherwise be accomplished. If the other alternatives of cross-examination are unavailable, that being that there is no ability to impeach the witness and there is no favorable testimony that can be elicited from them (this is the rare case as typically there is always some favorable testimony that can be elicited) then in such a case, counsel should consider a very brief cross-examination which will leave the jury with the impression that no cross-examination is even necessary given the close relationship between the parties.