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Excerpted from "Cross-Examination Skills" prepared as a Continuing Legal Education Course on behalf of Lorman Educational Services  (2003) (Chicago, Illinois).

 INTRODUCTION

Cross-examination is best viewed as part of your larger trial strategy which, like a football game, has both an offensive and defensive component.  Offensively, you seek at all times during trial including cross-examinations to advance your theory of the case.  Defensively, you seek at all times and especially during cross-examinations to refute your opponents theory of the case.  Balancing the offense and defense during cross-examination is an exquisite skill and a major theme of all of this presentation.  Note that this author will invariably mention the offense first.

                The Scope of Cross-Examination

The scope of cross-examination is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion which results in substantial prejudice.  Achanzar v. Ravenswood Hospital, 326 Ill.App. 3d 944, 762 N.E.2d 538 (1st Dist. 2001).
Proper grounds for a trial court to limit a cross-exam  include relevance and prejudice, including possible prejudice that would result from confusion of the issues.  People v. Nunn, 301 Ill.App.3d 816, 704 N.E.2d 683 (1st Dist. 1998), rehearing denied, appeal denied, 183 Ill.2d 587, 712 N.E.2d 822.  

Another familiar ground for limiting the scope of a cross-examination is going beyond the scope of the direct examination.   See, Diaz v. Kelly, 275 Ill.App. 3d 1058, 657 N.E.2d 657 (1st Dist. 1995), as modified, 165 Ill.2d 549, 662 N.E. 2d 423.   The courts construe this limitation narrowly, and usually give wide latitude to the cross-examiner in exploring the basis of direct testimony.  For example, if the direct testimony was that of an eyewitness to an occurrence, all factors relating to the witness’ eyesight are fair game even though that issue was not raised on direct.   The adequacy of the witness’ eyesight was assumed or implied by the direct, entitling the cross-examiner to test the assumption.
It has been held that a witness can be cross-examined on:

--        The substance of a conversation, statement or transaction, if there was any reference to same during the direct.
--        Other portions of a particular conversation, statement or transaction, if the direct examination elicited only part of same.
--        Other conversations, statements or transactions that are pertinent to the subject of direct examination (although here, the question of where to draw the line becomes more difficult). (I.L.P. Witnesses, §102).  

Witnesses can also be cross-examined as to writings or any other exhibits that were used in the direct exam.  (Id.).

Witnesses can also be cross-examined on any other matter that would impeach the truth of their testimony.  (Id.).  

               Facts that are not yet established

Lawyers seeking to expand the bounds of cross-examination often ask the witness if he or she was “aware” of another fact even if that fact is not yet established on the record.  This question will surely draw a lack of foundation objection that should be sustained unless the fact can be established through this witness.   In situations where it is impossible to establish the particular fact, it could be wise to advise the Court that you are reserving a right to recall the witness after the fact is established by another witness.

         Effect of evidence on Cross-Examination

The evidence given on cross-examination is generally deemed to be evidence on the part of the witness, and not of the cross-examining party.  Sullivan v. Coca-Cola Bottling Co., 313 Ill.App. 517, 40 N.E. 579 (1942).  That is, the cross-examining attorney is free to question the witness on unfavorable topics without being deemed to have presented unfavorable evidence.  An important exception, however, is the solicitations of admissions by the witness.  A party may prove her case, in whole or part, by admissions obtained in cross-examination.

Another exception to the rule that evidence on cross-examination is not attributed to the cross-examiner may occur if the cross-examiner goes beyond the bounds of the direct examination.   People ex rel. Nelson v. Illiana State Bank, 265 Ill.App. 29 (1936).  In that situation, the evidence adduced is deemed to be part of the cross-examiner’s case.

                 Cardinal Evidentiary Rules

To state the obvious, all rules of evidence that apply in the particular court will apply during cross-examination.  For example, the court is likely to sustain objections to questions on cross that would elicit a hearsay response.  

Thus,  as cardinal rules of cross-examination:
--        Good trial lawyers are on intimate terms with the rules of evidence.   
--        Anticipate objections to your line of questions before the trial as you plan your cross-examinations.
--        Structure your planned questions to avoid objections to the extent possible, for as a general rule, objections interrupt the flow of your cross-examination.
--        Know your arguments to overcome foreseeable objections before you ask the question.  Be ready with citations to cases or to treatises such as Cleary & Graham in Illinois and Weinstein for federal cases.  Have copies of the relevant citations in your witness file, ready to tender to opposing counsel and the bench.  For example, if you are asking a question for a non-hearsay purpose such as “notice” or “verbal act”, be ready to explain that purpose to the judge, and to argue the relevance of your purpose either in front of the jury or at sidebar.  (Every opportunity to argue a point of evidence is an opportunity to advance your theory of the case).  

                    Avoiding the Waiver Trap

It must be remembered that objections to admissibility can be waived.  During an opponent’s direct examination, objections are waived if not timely made.   During cross, the cross-examining attorney must be on guard against inadvertently eliciting testimony that would otherwise be inadmissible.  

For example, if a cross-examining defense attorney asks the plaintiff to give self-serving hearsay testimony (that had not been elicited on direct), the cross-examining attorney will have waived any objections to that hearsay and will be stuck with the testimony.   

As another example, a witness during cross-examination might attempt to give an answer that contains inadmissible hearsay (even though your skillful questions did not call for that type of answer).  In that situation, the cross-examining attorney should interrupt the witness and ask the judge to strike the testimony as non-responsive and as seeking to give inadmissible testimony.  

                         Leading Questions

In Illinois, the familiar rule that leading questions are permissible on cross-examination was recognized by the Illinois Supreme Court.  In re Mitgang, 385 Ill. 311, 52 N.E. 2d 807 (1944).  A leading question has been famously described as a question that suggests the answer.   Compare:

“What color was the stoplight?”
“The stoplight was red, was it not?”

Learning to ask proper leading questions is the most important skill necessary to conduct a successful cross-examination.  In essence, a leading question is an affirmative statement of fact by the cross-examiner, to which the witness is usually asked to agree or disagree by giving a “yes” or “no” answer.  Asking leading questions goes hand in hand with the maxim that you should not ask questions that you do not know the answer to.  The benefits of asking leading questions are obvious:

--        The cross-examiner has control of the examination.
--        The cross-examiner has the opportunity to present his or her theory of the case.
--        The witness is denied the opportunity to make speeches.

Experienced attorneys may sprinkle a few non-leading questions into a cross-examination, usually in one of two situations:
--       Where the attorney knows the answer to the question, but asks an open-ended question for the purpose of appearing “fair” to the witness as well as breaking the monotony of asking all leading questions.  In this situation, however, the attorney must be ready to demolish an untruthful answer with further leading questions.  
--        Where the attorney truly does not know the answer to the question, but has determined that a truthful answer cannot possibly hurt his or her case.  This is as dangerous as it seems, since, as Murphy’s Law would suggest, the witness is likely to give an unfavorable answer that you did not anticipate.  Equally bad, and equally likely, the witness may give the answer that you expected, but with a “spin” that cuts against you.  This exception to the rule of never asking questions you do not know the answer to should rarely, if ever, be invoked.  If you find yourself doing it with any regularity, it is a sure sign that you have not adequately prepared.     

                         Positive Questions
Which is the better question?

“The stoplight was red, was it not?”
“The stoplight wasn’t green, was it?”

Clearly the first question is preferable since it affirmatively states the fact that you wish to prove, in a manner that is not confusing, and which excludes all other possibilities.   Further, the use of positive questions projects your confidence in your case.

The second question leaves open two possibilities (the light could be red or yellow) and requires the listener to deduce that you are trying to prove that your opponent ran a red light.  Moreover, by their very nature, negative questions seem to give the witness more wiggle room, i.e. more opportunity to elaborate instead of giving a “yes” or “no” answer.

There are occasions, however, where a seasoned lawyer will use a negative leading question which essentially takes that form of:  “this fact is not true, is it?”

This could be done to break the monotony of a long string of positive questions, or it could be done for special emphasis as a follow-up question, or even to disparage the opponent’s claim with a note of sarcasm.  

                         Short Questions

Another important rule is that short questions that establish a single point are usually better than long questions that would establish multiple points.  For starters, the record of the witness’ testimony will be much more clear on appeal if needed.   Also, the witness will be more clearly locked into the “yes” or “no” that follows a single-point question than one that follows a multiple question, as the witness will be denied the opportunity to claim confusion by the multiple points.

Thus, the best cross-examinations progress by single points to the desired conclusion.  

                        Improper Questions

The trial court should sustain objections to questions that:
--         Harass, annoy or humiliate the witness.
--        Are overly broad.
--        Are argumentative.
--        Call for speculation.
--        Are unfair in that they cannot be answered in the “yes” or “no” format that is requested.
--        The witness is not competent to answer.
--        Assume facts not in evidence.
--        Are unduly repetitive.

                       A Confident Tone

It goes without saying that as an advocate you must strive to inspire confidence in your client’s cause.  Your tone and demeanor throughout the trial must project that you are confident in your belief that truth and justice are on your side.  Nowhere is this more important than on cross-examination, where you are (or should be) the center of attention.
Your confidence must not become arrogance, and should not indicate a lack of respect for the witness as a person.  Respect for the witness is necessary, particularly at the start of  a cross-exam. As you proceed, humor, anger, incredulity, sarcasm etc. may be proper, but must be projected as if they were perfectly natural.  

All of these elements are revealed by the tone of your voice, and the manner in which you project yourself.   However, the sum total of your “tone” should be one of confidence.
Improbability

One of the most basic purposes of cross-examination is to show that witness’ story is inherently improbable, and thus not worthy of belief.  In situations where you do not have available any impeachments, establishing “improbability” (coupled with bias, if possible) is often the best you can hope to do.   

The technique of short, leading questions, projected in a confident manner, is essential for this type of cross-examination.   Consider this example:   The witness (the director of a company) claims to have stepped out of the room during a directors meeting and that, therefore, she did not vote in favor of a resolution that is the key to a case.   The corporate secretary has already testified that he might have erred in recording her “yes” vote in the minutes of the meeting.

You are a director or XYZ Company, right?
And you were a director of XYZ Company on the day in question, right?
In fact you had already been a director of XYZ Company for 5 years prior to the date in question, right?
As a director of XYZ Company, you know that you have certain duties to XYZ Company and its shareholders, right?
Another one of your important duties as a director of XYZ Company is to attend all meetings of the Board of Directors, right?
You understand that as a director, your presence is needed to reach a quorum at the directors’ meetings, right?
You understand that a quorum of directors is needed to pass any corporate resolutions, right?
And , you knew the protocol for meetings of the board of directors, right?
The first thing that has to happen for a directors’ meeting is that all of the directors have to receive notice, right?
You received notice of this meeting, right?
That notice gave you the date and time of the meeting, right?
[state the date and time of the notice]
The notice also gave you an agenda of the proposed resolutions of the board of directors, right?
One of proposed resolutions was ….”
[use document if needed]
After you received notice of the directors meeting on …, you made arrangements to attend that meeting, right.
You made sure you had no conflicting appointments, right?
On the day in question, you arrived at that meeting on time, right?
[pin down: the location of the meeting, the time she arrived, the names of all other persons who were present]
You knew as the meeting convened that the key resolution was an important part of the agenda that day ,right?
[have the witness testify to the reasons why the resolution was important]
During this meeting, you were present for –
[establish everything she concedes she was present for – ideally she will have been present when the resolution was discussed, before the vote]
You testified in your direct examination that in the middle of this meeting, while this resolution was being discussed, you stepped out into the hallway to take a cell phone call.”  
You are a director or XYZ Company, you are attending a directors’ meeting, and you did not think to turn your cell phone off before the meeting started?
You testified that you were on the phone for __________ minutes?
While you were out in the hallway, there was no quorum at the meeting, right?
While you were out in the hallway the Board could not lawfully vote on this important resolution, right?
You did return to the boardroom after completing this phone call, right?
The meeting was still continuing, right?
When you returned, the Board once again had a quorum, right?
You participated in the meeting after you returned, right?
***

In this example, the suggestion of improbability builds slowly.  

To conclude the cross-examination, there are a lot of variable facts that you would have pinned down in discovery, which could provide further ammunition for showing the improbability that this director would leave, that the others would take a vote while she was out, that no one would notice the lack of a quorum etc., that no one would revisit the resolution after she returned, and somehow, that the meeting would end with everyone being in error as to her vote.   

Also, depending on what you could prove from testimony from the other party to the phone call, there might be some good questions about what she said over the phone when she took this call.

                 Structure and Order

Establishing that the witness’ story is improbable may be a good place to begin a cross-examination.   Consider the following:
1.        The witness has told an unlikely story.
2.        The witness is biased.
3.        The witnessed has contradicted herself – i.e., on an earlier occasion, she told a more probable story.

By establishing the improbability first, the subsequent proof of bias allows the jury to say “aha, that’s why she told an improbable story.”   In this sequence, using any available impeachment at the end of the cross-examination is so much more effective because it is placed into context.   The jury is already primed to believe that the prior statement is more believable than the improbable testimony on direct.   On the other hand, the following sequence might be preferable particularly where the witness was impressive in her direct examination:
1.        The witnessed is impeached.
2.        The witness has now told an unlikely story.
3.        The witness is biased.

Where the witness was effective on direct, it could be useful to start with impeachment to puncture the balloon quickly.

Finally, in any given case, bias might be the place to start, if the bias is particularly strong.