Cross-examination
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In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination (in Ireland, the United Kingdom, Australia, Canada, South Africa, India and Pakistan known as examination-in-chief) and may be followed by a redirect (re-examination in Ireland, England, Scotland, Australia, Canada, South Africa, India, Hong Kong, and Pakistan). Redirect examination, performed by the attorney or pro se individual who performed the direct examination, clarifies the witness' testimony provided during cross-examination including any subject matter raised during cross-examination but not discussed during direct examination. Recross examination addresses the witness' testimony discussed in redirect by the opponent. Depending on the judge's discretion, opponents are allowed multiple opportunities to redirect and recross examine witnesses (may vary by jurisdiction).
Variations by jurisdiction
In the United States federal Courts, a cross-examining attorney is typically not permitted to ask questions that do not pertain to the testimony offered during direct examination, but most state courts do permit a lawyer to cross-examine a witness on matters not raised during direct examination. Similarly, courts in England, South Africa, Australia, and Canada allow a cross-examiner to exceed the scope of direct examination.
Since a witness called by the opposing party is presumed to be hostile, cross-examination does permit leading questions. A witness called by a direct examiner, on the other hand, may only be treated as hostile by that examiner after being permitted to do so by the judge, at the request of that examiner and as a result of the witness being openly antagonistic and/or prejudiced against the party that called them.[1]
Affecting the outcome of jury trials
Cross-examination is a key component of a trial and the topic is given substantial attention during courses on Trial Advocacy.[2] The opinions of a jury or judge are often changed if cross examination casts doubt on the witness. On the other hand a credible witness may reinforce the substance of their original statements and enhance the judge’s or jury’s belief. Though the closing argument is often considered the deciding moment of a trial, effective cross-examination wins trials.[3]
Attorneys anticipate hostile witness' responses during pretrial planning, and often attempt to shape the witnesses' perception of the questions to draw out information helpful to the attorney's case.[4] Typically during an attorney's closing argument he will repeat any admissions made by witnesses that favor their case. Indeed, in the United States, cross-examination is seen as a core part of the entire adversarial system of justice, in that it "is the principal means by which the believability of a witness and the truth of his testimony are tested."[5] Another key component affecting a trial outcome is the jury selection, in which attorneys will attempt to include jurors from whom they feel they can get a favorable response or at the least unbiased fair decision. So while there are many factors affecting the outcome of a trial, the cross-examination of a witness will often influence an open-minded unbiased jury searching for the certainty of facts upon which to base their decision.
See also
- Litigation strategy – high level plan to achieve the overarching goal of a lawsuit
- Testimony – Solemn attestation as to the truth of a matter
- Trial advocacy – Improving effectiveness of advocates
- Witness impeachment – Process of calling into question the credibility of an individual testifying in a trial
References
- ^ Ehrhardt, Charles W. and Stephanie J. Young, "Using Leading Questions During Direct Examination" Archived 2008-11-03 at the Wayback Machine, Florida State University Law Review, 1996. Accessed November 26, 2008.
- ^ Lubet, Steven; Modern Trial Advocacy, NITA, New York, NY 2004 pp. 83 et. seq. ISBN 1556818866
- ^ Mahoney, Kevin J (2008). Relentless Criminal Cross-Examination. Costa Mesa, California: James Publishing. ISBN 158012125X.
- ^ Dreier, A.S.; Strategy, Planning & Litigating to Win; Conatus, Boston, MA, 2012, pp. 79-85; ISBN 0615676952
- ^ Davis v. Alaska, 415 U.S. 308 (1974).
Further reading
- City Law School (2007). Advocacy 2007/2008 (Blackstone Bar Manual). Oxford: Oxford University Press. ISBN 0-19-921220-1.
- Du Cann, Richard (1993). The Art of the Advocate. London: Penguin. ISBN 0-14-017931-3.
- Evans, K. (1993). The Golden Rules of Advocacy. London: Blackstone Press. ISBN 1-85431-259-6.
- Morley, I (2005). The Devil's Advocate. London: Sweet & Maxwell. ISBN 0-421-91480-7.
- Ross, D. (2005). Advocacy. London: Cambridge University Press. ISBN 0-521-61117-2.
- Wellman, F. (2007) [1903]. The Art of Cross-Examination. Standard Publications. ISBN 1-59462-647-2.
- Mahoney, K. (2008). Relentless Criminal Cross-Examination. James Publishing Company. ISBN 978-1-58012-125-5.