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Avoiding the Wrecking Ball of a Disastrous Cross Examination: Nine Principles for Effective Cross Examinations with Supporting Empirical Evidence

Harry M. Caldwell[1]* & Deanne S. Elliot[2]**

Effective cross-examinations share three hallmarks: they recognize and strive only for realistic goals, they maintain witness control, and they cultivate and maintain rapport with the jurors. This Article posits nine principles central to achieving these three overarching goals. Each goal is supported by empirical research, and each principle is examined and illustrated.

“Though this be madness, yet there is method in’t.”[3]

“[The Sixth Amendment] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”[4]


The graveyard of adverse verdicts is littered with the remains of disastrous cross-examinations, led to their demise by inept or overzealous advocates.[5] Yet, the myth persists of a brilliant lawyer blessed with a keen intellect and a quick wit dismantling a witness and winning her case with an exhaustive and withering cross examination.[6] As enticing as the prospect of executing a winning and decisive cross-examination appears, the sobering reality is that trials are seldom won on cross-examination but are rather frequently damaged, sometimes fatally, by inept cross-examinations.[7]

Make no mistake, cross-examination is an essential component of trial, and when executed effectively, is a critical weapon in an advocate’s arsenal.[8] Effective cross-examinations can probe vulnerabilities and flaws in the opponent’s case,[9] and can be particularly effective in exposing credibility issues.[10] Cross-examination can even occasionally be utilized to reinforce positive aspects of an advocate’s case.[11] However, as suggested by the title and as will be developed throughout this Article, advocates must temper their cross-examinations in order to meet their trial objectives without jeopardizing their case.

With rare exception, effective cross-examinations share three hallmarks: they recognize and strive only for realistic goals, they maintain witness control, and they cultivate rapport with the jurors. This Article will posit nine principles central to achieving these three overarching goals. Each principle will be examined and illustrated, and each overarching goal will be supported by empirical research evidence. To that end, this Article seeks to illustrate not only the what and how of cross-examination, but also why these principles go to the heart of effective examinations.

Set Realistic Goals

Imagine a stealthy nighttime raid on an enemy camp housing superior troops. The raider’s sole goal is to get behind enemy lines in order to reconnoiter the enemy’s fortifications and to safely return. There may be some targets of opportunity that present themselves during the foray, but engaging the targets could lead to a direct confrontation, jeopardizing the entire mission. That temptation to push beyond what is realistically and safely obtainable must be resisted. Cross-examination is about identifying and obtaining realistic goals without risking trial success.

Principle #1—First, Do No Harm

Trials are seldom won on cross-examination, but can well be lost there.[12] Cross-examinations should be conservative and only undertaken with great care.[13] Much like the oath taken by physicians to “first, do no harm,” trial lawyers should heed that same admonition.[14] Cross-examination is no time to jeopardize the case, or if you will, the patient. Rather, it requires a risk-averse assessment of the overall trial strategy, combined with a careful execution of questioning.[15]

Adverse witnesses are by their very nature hostile to the examiner’s position. As such, examiners must strive to prevent them from damaging their case beyond any damage already inflicted during the witness’s direct examination.[16] Furthermore, cross-examiners must not allow the witness to simply reinforce their direct examination testimony[17] or to venture into areas that expose further vulnerabilities in the advocate’s case.[18] Cross-examination is no time to take risks—rather, it is about obtaining favorable testimony without taking risks and probing fruitful points without jeopardizing the integrity of the examiner’s case.[19]

Mistakes made during cross-examination may negate any positive gains achieved. Empirical research teaches that most people tend to recall the negative more than the positive.[20] Of course, a “negative” in the context of cross-examination is not necessarily a “no” so much as an unexpected response elicited by a question that should never have been asked. Because of the unexpected nature of the response, that negative response is more likely to stand out to the jurors.[21] It is perhaps a sad commentary on human nature, but the empirical research unflinchingly supports the fact that most people recall the negative more strongly, and in more detail, than the positive.[22] In a study conducted by Stanford, researchers found both physiological and psychological explanations for this phenomenon.[23] The study revealed that negative information is processed more deeply than positive information because negative information involves more thinking.[24] Specifically, the prefrontal cortex processes positive and negative experiences in fundamentally different ways because the cells are built differently.[25] Using a type of genetic modification called “optogenetics,” researchers were able to determine which brain cells were the most active during positive or negative experiences.[26] The results indicated that people tend to remember unpleasant information more vividly and in more detail than pleasant information.[27] Because of how the prefrontal cortex processes positive and negative experiences, the positive gets lost in the wreckage of an ineffective cross-examination, leaving only the negative fact, question, or answer to be remembered by the jurors.[28]

Control the Witness

Principle #2—Never Ask a Question to Which You Don’t Know the Answer

In implementing a conservative approach to cross-examinations, effective examiners recognize that every question must have a known answer.[29] In other words: Never ask a question to which you don’t know the answer. Advocates must be “protected” on every question, such that the question is one the witness has previously answered in a deposition, a statement to another, a document they prepared, and so on.[30] Indeed, the examiner may simply be protected by common sense.[31] And should the witness’s response vary from the protected or common sense response, the examiner should consider impeaching the witness.[32] A notable example of asking an unprotected question occurred when former prosecutor Arthur Liman examined Colonel Oliver North as part of the Iran-Contra investigation:[33]

Q: “Colonel North, was the day Iran[-]Contra unraveled the worst day of your life?”

A: “No, Mr. Liman, the worst day was in Viet Nam [sic] when I was in a foxhole with my best friend, and the Viet Cong threw a grenade into the foxhole, and my friend threw himself on top of it and saved my life. My best friend died. That was the worst day of my life.”[34]

Colonel North’s answer devastated Liman’s cross-examination and gained North the sympathy of the nation.[35] Liman overreached with an unprotected and unnecessary question, giving the witness the opportunity to give an answer that called the examiner’s motives into question and simultaneously boosted the witness’s character. Venturing into the unknown can be devastating for a cross-examination.

Effective cross-examiners strive to maintain absolute control of the witness.[36] Ideally, the witness’s response to every question is a monosyllabic agreement with the examiner’s inquiry.[37] That ideal situation is often not realized—hostile witnesses are typically non-compliant.[38] But even so, it should remain the goal.

Furthermore, controlling the witness is critical to ensure that the cross-examiner’s story of the trial is told.[39] Rarely is cross-examination seen as a place in which an advocate can tell her client’s story. However, it does present an opportunity for the advocate to frame the story in a way that helps the jury accept and interpret the evidence presented by the cross-examiner in a favorable light for her client.[40] Drawing on linguistics principles, in cross-examination the advocate takes on the role of author (selecting the phrasing and information expressed), animator (voicing the story), and principal (the person whose beliefs are represented), despite the fact that the witness is the primary knower—the person from whom the facts are extracted to tell the story.[41] Even though the information is elicited from the witness in the form of confirmation during a cross-examination, the advocate embodies each of these roles, allowing her to carefully shape the story in a way that favors her client’s position.[42]

Three types of stories can be told. First, the “challenge” narrative—in which the elements of the opponent’s case are attacked as “inconsistent, unproven, or subject to a competing interpretation.”[43] Second, the “redefinition” narrative—requiring the cross-examiner’s story to “re-interpret ambiguous elements” of their opponent’s case to lead to differing conclusions.[44] And lastly, the “reconstruction” narrative provides an entirely new context in which the facts should be seen and which, of course, yields an entirely different conclusion.[45]

Principle #3—Questions Should be in the Form of Assertions

At its baseline, witness control during cross-examination should consist of assertions seeking ratification by the witness.[46] Some may frame this principle by admonishing examiners to only ask leading questions.[47] While both iterations arrive at the same point, emphasizing assertions rather than questions perhaps makes the point clearer. Following the admonition set forth in Principle #2 to only ask questions that have a known or “protected” answer, this approach effectively controls the witness’s response. Should the witness’s answer vary from where the examiner is protected, once again impeachment should immediately follow.[48] One rule of thumb is to begin the question-assertion with “Isn’t it true . . .” or ending with “. . . correct?” A question-assertion in this form screams for a monosyllabic response. Conversely, questions should not begin with “who,” “what,” “when,” “where,” or “how.” Framing questions in such a manner invites a more extensive, and, as a result, a less controlled response.[49]

An example of this technique can be seen in the cross-examination of Richard Bruno Hauptmann, who was tried, convicted, and executed for kidnapping Charles Lindbergh’s infant son.[50] From the start, the prosecutor made obvious use of this principle, asking specific question-assertions to shape the narrative that Hauptmann had benefited upon immigrating to America from Germany, and yet had the audacity to kill the son of an American icon.[51] While this trial is widely regarded as a miscarriage of justice,[52] the point remains that when Hauptmann took the stand in his own defense, the prosecutor effectively told a story that he was a villain who took advantage of an American opportunity:

Q: “And you have been in the United States of America since 1923, haven’t you?”

A: “Yes.”

Q: “You have enjoyed the privilege and opportunity of earning a livelihood, haven’t you?”

A: “Yes.”

. . . .

Q: “You married in this country.”

A: “Yes.”

Q: “You saved money.”

A: “Yes.”

Q: “You bought stocks.”

A: “Yes.”[53]

Principle #4—One Fact – One Question

A simple yet often ignored method to maximize witness control is to limit each question to one fact.[54] Methodical adherence to one fact-one question “keeps tight control of the witness and keeps the jury in sync with the attorney’s line of questioning.”[55] A question-assertion loaded with more than one fact can lead to ambiguities or confusion, which may allow the witness to open up and qualify his answer.[56] For example: “You went into the house and saw the gun, correct?” Such a seemingly straightforward question can be confusing. If the witness went into the house but did not see the gun, she cannot respond with a single affirmation and is now given license to respond beyond the scope of the question. Whereas simply breaking the compound question-assertion into two questions maximizes control.

An excellent example of this is found in the cross-examination of Dr. Hawley Harvey Crippen.[57] Dr. Crippen was tried in 1910 for the murder of his wife, whose remains were found buried in their London home months after he claimed she left him.[58] Fearing he would be arrested, Dr. Crippen fled on a ship headed for Canada with his mistress, who was disguised as his son.[59] Dr. Crippen testified in his own defense and claimed he was afraid that he would be arrested on the suspicion of his wife’s disappearance.[60] During cross-examination, the prosecutor methodically used the one fact-one question approach, highlighting the intricate steps Dr. Crippen and his mistress took in fleeing the authorities:

Q: “You thought you were in danger of arrest?”

A: “Yes.”

Q: “And so you fled the country?”

A: “Yes.”

Q: “Under a false name?”

A: “Yes.”

Q: “Shaved off your moustache?”

A: “Yes.”

Q: “Left off wearing your glasses in public?”

A: “Yes.”

Q: “Took [your mistress] Le Neve with you?”

A: “Yes.”

Q: “Under a false name?”

A: “Yes.”

Q: “Posing as your son?”

A: “Yes.”[61]

Note the complete control by the prosecutor.[62] Methodically building the examination one fact at a time follows the rationale of the scientific method which requires that “the experimenter has a controlled environment and adds one variable at that time to that environment to determine the effect of that variable.”[63] Adding one new fact at a time keeps the cross-examination focused and unambiguous, allowing the story to build one piece at a time.[64] The prosecutor’s cross-examination of Dr. Crippen brilliantly illustrates this principle.

The one fact-one question principle is also significant in that it facilitates information “chunking.” Chunking refers to related pieces of information. For instance, in the Crippen cross-examination, the “chunk” of information set forth related solely to Crippen’s efforts at his flight. Most people can only process limited “chunks” of information at one time.[65] This limited ability to process and remember constrains “the amount of information that we are able to receive, process, and remember.”[66] As the advocate adds each new fact during the cross-examination, each smaller piece of information can be integrated more easily into the larger “chunk” of information.[67] In the examination of Dr. Crippen, all the facts integrated together illustrate his guilty conscience. Each new fact which the witness affirms can be integrated more fully by the jury into the larger chunk of information if it is the only fact introduced in each question.

Principle #5—Use Characterizations Carefully

Cross-examiners, in their efforts to control witnesses, should be wary of characterizations.[68] Characterizations may often be subject to several interpretations which can allow the witness to offer her own interpretation or clarification that significantly differs from what the cross-examiner intended.[69]

One example of how careless characterizations can make a cross-examination go awry is illustrated in the following domestic violence case.[70] During the cross-examination of the victim, defense counsel took issue with the witness’s description of her conduct as merely an attempt to “hit” the defendant.[71] Counsel, attempting to intensify the witness’s conduct, sought to characterize her conduct as “smashing” the defendant in order to establish that the victim was also violent during the altercation:[72]

Q: “It was at that point in the proceedings that you picked up an object with the view of smashing the defendant in the face with it?”

A: “No. I was not going to smash him in the face. I was just going to hit him and the way I was aiming it was going to hit him in the face. Yes.”

. . . .

Q: “Was it not your intention to hit him in the face?”

A: “No. It was not my intention. No. I was just going to hit him, but the way I was holding it it would have caught him in the face. But I didn’t hit him with it though.”[73]

The cross-examiner’s unartful characterization allowed the witness to reinforce her testimony that she was trying to make the defendant back off. The cross-examiner could have reached the same conclusion without drawing such strong resistance. For example, the cross-examination could have proceeded as follows:

Q: “During the fight, you picked up an object, correct?”

A: “Yes.”

Q: “And that object was made of metal, isn’t that right?”

A: “I don’t know what it was made of. It was like a silver bowl, an ashtray/bowl thing.”

Q: “So, you would agree with me that the object was silver, metallic?”

A: “Yes.”

Q: “And when you picked up the object, you did so to hit the defendant with it?”

A: “Yes, I was going to hit him.”

Q: “You intended to hit him?”

A: “That’s what I told the police.”

Q: “And you would agree that when you hit him, it was in the face?”

A: “Yes. I didn’t mean to hit him in the face, I was going to hit him, but didn’t mean for it to hit his face.”

Q: “But you would agree with me that you did hit him in the face?”

A: “Yes.”

This version of the cross-examination reaches the same conclusion that the witness hit the defendant in the face with a metal object, but without giving the witness the opportunity to be evasive. Also, note that the use of one fact-one question kept the examination focused.

Another concern with the use of characterization during cross-examination is its potential to alienate jurors. Basic principles of persuasion and reaction suggest that characterizations by cross-examiners can cause a negative reaction.[74] Studies have shown that attempts at persuasion can cause reactance when using “forceful and controlling language,” which is perceived “as more threatening and as eliciting more reactance than noncontrolling language.”[75] In a study designed to test the impact of an opinion statement on the participants’ rating of two different profiles, researchers found that a mild statement was more effective in persuading participants than a strong statement.[76] Researchers found that participants were more persuaded when the “experimenter’s expression of preference [for one profile over the other] was designed not to restrict the subjects’ freedom to hold an opposing point of view.”[77] Conversely, the participants reacted negatively to the profile in which the experimenter expressed a strong preference which limited the participants’ ability to make an independent judgment.[78] The admonition then is to utilize characterizations carefully so as to prevent negative reactions. While the goal of cross-examination is not usually to persuade the witness of the cross-examiner’s case, advocates should strive to prevent the witness from reacting negatively to the advocate’s case.[79] Of course, that is the whole point of cross-examination—constraining the witness to the answer the cross-examiner desires. Limited use of strategic characterizations can be effective while minimizing the risk of a negative response.

Principle #6—Controlling the Runaway Witness Through Repetition

Some witnesses on cross-examination will embellish their responses substantially beyond the call of the question. A question-assertion that clearly calls for a “yes” or “no” answer sparking a lengthy response presents a particular problem. Trial lawyers differ on strategies to cope with these “runaway witnesses.”[80] Let’s consider the following exchange:

Q: “Isn’t it true that you filed for bankruptcy on October 5, 2016?”

A: “Yes, I did, because your client refused to pay me what he owed me, which started a chain reaction of financial problems, including the bank foreclosing on my building, which made it impossible to continue production.”

Such a response is not uncommon with a witness experiencing the stress of cross-examination and seeking to push back against the cross-examiner.[81]

One school of thought to prevent the runaway witness from producing a response well beyond what was called for is to admonish the witness at the outset of the cross-examination to confine himself to “yes” or “no” responses.[82] Many judges will not allow such an admonition, reasoning that it unduly restricts the witness from testifying since not all questions can be answered with a simple “yes” or “no.”[83] Furthermore, despite the admonishment, the runaway witness may well pay no heed and continue to give lengthy non-responsive answers.[84]

Another school of thought is to immediately object as non-responsive once the witness continues past “yes.”[85] Again, there are downsides to such an approach. The judge may or may not sustain the objection. Even though everything following “yes” is beyond the scope of the question, judges are often reticent to cut off a witness.[86] The greater concern in employing this approach, however, involved the jurors’ perception of the cross-examiner.[87] Cutting off the response so quickly may be perceived as rude and disrespectful, and perhaps more importantly, may communicate to the jury that the advocate is overly concerned with the answer the witness would give.[88] In either scenario, the cross-examiner loses some objectivity as he descends into an overtly partisan position, uninterested in a full development of the facts.

A third school of thought is for the advocate to let the witness “gush-out” his non-response, to which the advocate simply repeats the question-assertion.[89] There are two advantages to this approach. First, it is courteous and respectful, and thereby does not run the risk of jury alienation.[90] Second, and more importantly, it provides an opportunity for the advocate to follow-up the non-answer and once again offer the same question-assertion, which will draw particular notice from the jury since the repetition of the question-assertion highlights the question as well as the evasive nature of the witness’s response. The exchange would go as follows:

Q: “Isn’t it true that you filed for bankruptcy on October 5, 2016?”

A: “Yes, I did, because your client refused to pay me what he owed me, which started a chain reaction of financial problems, including the bank foreclosing on my building, which made it impossible to continue production.”

Q: “Mr. Witness, let me return you to my question. Isn’t it true that you filed for bankruptcy on October 5, 2016?”

A: “I did. But as I explained I had no choice.”

Q: “So the answer to my question is ‘yes,’ you filed for bankruptcy on October 5, 2016.”

Most witnesses will be hesitant to offer the same lengthy response a second or third time.[91] Should they persist, however, a non-responsive objection would be warranted, and at that point likely sustained by the judge.[92] This repetition approach will only be effective if the initial question is absolutely clear.[93] It must be free of ambiguities, obvious characterizations, or compound facts. The downside of the third approach is that the witness has once again repeated her position—the same response she offered during her direct examination and will most likely offer again during her redirect examination. But this is of little concern, as her explanation cannot be censored—it is there for all to hear. What is important during cross-examination is the repetition of the question-assertion to drive home the examiner’s point. Further, witnesses who do not cooperate and fail to directly answer a question signal to the jury their evasiveness and even aggression, potentially impugning their own credibility.[94]

One particularly striking example comes from the cross-examination of Charles Guiteau, who was tried for the assassination of President Garfield in 1881.[95] Guiteau claimed he shot Garfield because God commanded him to—not surprisingly, the defendant pleaded insanity.[96] Guiteau testified at the trial, plainly squirming under the prosecutor’s cross-examination which attempted to make clear that the actions of Guiteau were his alone.[97] Guiteau resisted the assertion that his actions were wholly his own:

Q: “You thought you had killed President Garfield?”

A: “I supposed so at the time.”

Q: “You intended to kill him?”

A: “I thought the Deity and I had done it, sir.”

Q: “Who bought the pistol, the Deity or you?”

A: “I say the Deity inspired the act, and the Deity will take care of it.”

Q: “Who bought the pistol, the Deity or you?”

A: “The Deity furnished the money by which I bought it, as the agent of the Deity.”[98]

While the prosecutor did not get a clear affirmative answer from the witness, by repeating the question, he was able to get the witness to accept some agency in purchasing the gun that was used to commit the assassination. By using repetition to rein in the unruly witness, the jury is not only exposed to the same question-assertion two or three times, the jury will also be left to infer that the witness is being evasive if the question-assertion is carefully worded so as to not justify the witness’s rejection of the advocate’s phrasing.[99] In fact, if the jurors become aware that the witness is avoiding answering a reasonably phrased question, researchers have found that “jurors are more often persuaded when they, not the attorneys, draw the conclusion” that a witness is being evasive.[100]

Further, a potential benefit of having to repeat the question-assertion is found in the “illusion of truth” effect.[101] The “illusion of truth” effect suggests that “statements repeated even once are rated truer or more valid than statements heard for the first time.”[102] Researchers theorize that the reasons for this are varied, but such reasons can include that the hearer has been activated to the general topic, even if the specific statement is not presented until later.[103] Thus, if an advocate appropriately primed the jury during opening (constructs the framework of the story), the cross-examination can be used to enhance the perceived truthfulness of the question-assertion.

Maintain Juror Rapport

It is, of course, axiomatic that advocates throughout trial must cultivate and maintain goodwill with their jurors.[104] Jurors respect professionalism and competence.[105] Conversely, an advocate who appears unprepared, disorganized, or disrespectful will not engender confidence or goodwill with his jurors.[106] Professionalism and confidence beget trust and credibility.[107] Throughout a trial, jurors are taking measure of the advocates, and those advocates who best instill that sense of professionalism hold an advantage over their adversaries, even so far as to impact the verdict.[108] The following principles help prevent juror alienation.

Principle #7—Strike the Proper Demeanor

An overly aggressive cross-examination runs the risk of losing the advocate any goodwill or likeability previously developed at trial.[109] That goodwill is more at risk during cross-examination than at any other phase of trial. Cross-examination, by its very nature, is a hostile exercise often sparking conflict.[110] Cross-examiners perceived as unnecessarily aggressive or disrespectful will pay the cost with their jurors.[111] Throughout this hostile phase of trial, it is particularly critical for advocates to be measured and respectful, with few exceptions.[112] The information to be obtained during cross-examination can be gotten without slipping into an attack mode.[113] It is better to use an ice pick than a broad axe. The point is still made, but there is a lot less blood splashed about the courtroom.

That being said, there may arise occasions during cross-examination when the witness is overtly hostile or evasive, which allows the examiner to become more assertive.[114] There is a sense of proportionality at play, and the jurors may feel that the witness’s conduct merits a sterner approach. This is a very fine line that advocates should only cross when necessary and with extreme caution.

Principle #8—Respect the Jurors’ Time and Patience

Jurors’ attention spans are frequently challenged throughout trial.[115] Advocates must realize that it is difficult, maybe even impossible, to successfully advocate when the target audience is not focused.[116] This maxim holds as true for cross-examination as it does in every other component of a trial. A tedious cross-examination loaded with unnecessary repetition or focused on peripheral points will cause jurors to question the advocate’s competence and impact the advocate’s ability to effectively make her case.[117] Further, such a cross-examination is disrespectful to the jurors in two ways. First, it is treating the jurors in a condescending manner to be unnecessarily repetitive; and, second, it wastes the jurors’ time by unduly lengthening the trial. Any goodwill the advocate might have previously garnered is jeopardized as the jurors are left to wonder why this lawyer is engaged in such a tedious and pointless exercise.

Principle #9—Anticipate and Prepare for Objections

In preparing for trial, any good advocate assesses the evidence for potential flaws and pitfalls, and the same can be said of every aspect of the cross-examination.[118] In deciding which points must be addressed on cross examination and the manner in which those points will be addressed, the examiner must anticipate which question-assertions will be the most likely to draw an objection and anticipate the appropriate response.

On the front end, preparing for objections on cross-examination should start with crafting the question-assertions to avoid objections.[119]However, objections are inevitable and should be anticipated and dealt with expeditiously. An unartful response to an objection reflects a lack of preparation and professionalism which can impact the jurors’ perception of the attorney.[120]


Cross-examinations should never be viewed as free-wheeling affairs striving to damage the witness and his view of the events at issue. There is little—if any—room for spontaneity. Even in the rare event that an opening to explore a fruitful area has unexpectedly appeared, cross-examination must still maintain a conservative, thoughtful approach and heed the principles set forth above. Trials are not often won on cross-examination, but can well be lost there.

  1. * Harry M. Caldwell is a professor of law and the director of trial advocacy at Pepperdine University School of Law. He teaches criminal law, criminal procedure, and trial advocacy courses. Prior to teaching law, he served as a trial prosecutor for Santa Barbara and Riverside counties in California. He has been published extensively in the areas of criminal procedure, trial advocacy, and the death penalty, including his work as co-author of Ladies and Gentlemen of the Jury (1998), And the Walls Came Tumbling Down (2004), and The Devil’s Advocates (2006). He is also co-author of The Art and Science of Trial Advocacy (2d ed. 2011), Case Files for Basic Trial Advocacy (2009), Criminal Pretrial Advocacy (2013), and Criminal Mock Trials (2012). The authors thank and acknowledge the Pepperdine Summer Grant Program and the efforts of Lavinia Osilesi.
  2. ** Deanne S. Elliot graduated from Pepperdine University School of Law in May, 2018, and she plans a career as a prosecutor. She would like to thank her family for their support and Professor Caldwell for this opportunity.
  3. . William Shakespeare, Hamlet act 2, sc. 2, ll. 205–06 (George Richard Hibbard ed., Oxford Univ. Press 1987) (1603).
  4. . Crawford v. Washington, 541 U.S. 36, 61 (2004) (overruling Ohio v. Roberts, 448 U.S. 56 (1980), and holding that ‘testimonial’ statements give rise to a right of cross-examination to test the validity of the statements).
  5. . Texas Trial Handbook § 16:31 (3d ed. 2017) (noting that improper use of a cross-examination can be harmful to a trial attorney’s case); Thomas D. Burns, Cross-Examination, 48 Mass. L.Q. 224, 225 (1963) (“Many cases are lost by the injudicious use of cross-examination . . . .”).
  6. . 59 Am. Jur. Trials § 10 (2018) (noting that a persuasive advocate must expend effort, energy, and proper attention to the jury in order to ensure that she wins the battle that is cross-examination); Kenneth M. Mogill, Examination of Witnesses § 8.8 (2d ed. 2017) (describing that the media often portrays attorneys engaging in cross-examination by destroying a witness on the stand by accusing them of villainy, iniquity, or sin until the witness is broken, makes an admission, or makes a confession); see Francis L. Wellman, The Art of Cross-Examination 105–20 (new & enlarged ed. 1908) (studying methods of great cross-examiners).
  7. . Burns, supra note 3, at 225 (noting that many cases are lost by poor cross-examinations); Gerald A. Klein, The Art of Cross-Examination, The Gavel (2010), (noting that oftentimes cross-examination will not add to an advocate’s case); Irving Younger, The Art of Cross-Examination (Monograph Series 1, 1976).
  8. . Linda Miller Atkinson, Depositions, in 2 Litigating Tort Cases § 18:52 (Roxanne Barton Conlin & Gregory S. Cusimano eds., 2017) (stating that the most important tool is cross-examination); Albert S. Osborn, Cross-Examination—Its Benefits and Defects, 33 Canadian L. Times, 130, 130 (1913) (noting that cross-examination is highly valuable and indispensable); Paul J. Passanante & Dawn M. Mefford, Cross-Examination, 62 J. Mo. B. 28, 28 (2006) (quoting the Supreme Court of Missouri’s statement that “[t]he right of cross-examination exists solely because cross-examination is a necessary safeguard against the receipt of false or mistaken evidence”).
  9. . Cathleen Bennett, Trial Advocacy, in Massachusetts District Court Criminal Defense Manual § 15.4.4 (Cathleen Bennett ed., 4th ed. 2016) (noting that cross-examination can be used to “under mine [sic] a witness so that the jury will reject the witness’s testimony either because the witness is mistaken and unreliable, or the witness is untruthful”); Chris K. Gober, Cross-Examination, U.S. Att’ys’ Bull., Nov. 1998, at 20, 21 (noting a form of cross-examination that is “designed to weaken the opponent’s case through the testimony of . . . witnesses”).
  10. . Bennett, supra note 7, and accompanying text; Robert E. Jones et al., Federal Civil Trials & Evidence § 12:90 (Rutter Grp. Practice Guides, 2018) (noting that a witness’s credibility can be attacked with evidence from a prior inconsistent statement or the witness’s lack of memory).
  11. . 43A Harry P. Carroll & William C. Flanagan, Massachusetts Practice Series § 14:1 (3d ed. 2017) (noting that one purpose of cross-examination is to validate an examiner’s theory of the case); Mogill, supra note 4, § 8.8 (acknowledging that counsel can use cross-examination to elicit additional facts that support her case or place her direct examinations in a more sympathetic context); see 6 Am. Jur. Trials 297 § 3 (2018) (noting that one objective of cross-examination is to provide testimony to support counsel’s case).
  12. . See Advertisement for Noel C. Stevenson, Successful Cross Examination Strategy (1971), 60 A.B.A. J. 765, 765 (1974) (noting that “[o]ne wrong question, one error in judgment—could be enough to cost you your case!”); supra note 3 and accompanying text.
  13. . L. Timothy Perrin et al., The Art & Science of Trial Advocacy 279 (2d ed. 2011) (indicating that “instead of cross-examining witnesses with the objective of single-handedly winning the case through that particular cross, trial lawyers should approach each cross-examination as having more limited utility. The more modest objective of cross-examination should be not to lose the case.”).
  14. . From the Latin “primum non nocere,” which is translated from Greek. Ironically, the phrase “first, do no harm” is not part of the original Hippocratic Oath, but is derived from the ancient Greek physician Hippocrates’ work Of the Epidemics. Robert H. Shmerling, First, Do No Harm, Harv. Health Blog (Oct. 13, 2015, 8:31 AM), Despite the absence of this phrase from the Oath, however, medical students pledge to avoid harming their patients. Some debate exists over the necessity or reality of this phrase. “The idea that doctors should, as a starting point, not harm their patients is an appealing one. But doesn’t that set the bar rather low? Of course no physician should set out to do something that will only be accompanied by predictable and preventable harm.” Id. See also John Wesley Hall, Jr., Professional Responsibility in Criminal Defense Practice § 9:6 (3d ed. 2017) (noting that attorneys should “do no harm to the[ir] client’s case”).
  15. . Steven Susser, Rules for Successful Cross-Examination, Mich. B.J., Oct. 2017, at 40–41 (noting techniques to turn the witness in your favor, like extracting helpful points during a cross-examination rather than attacking a witness).
  16. . Id. (indicating that two reasonable goals of cross-examination are to get useful admissions and dent witness credibility).
  17. . Robert E. Larson, Navigating the Federal Trial § 7:76 (2017) (warning examiners not to repeat direct examinations on cross-examination); 2 Paul H. Tobias, Litigating Wrongful Discharge Claims § 12:15 (2017) (noting that cross-examiners should limit and discredit a witness’ testimony).
  18. . Tobias, supra note 15, at § 12:15 (noting that cross-examiners should limit and minimize the harm and adverse impact of a witness’ testimony).
  19. . See infra Section C.
  20. . Alina Tugend, Praise is Fleeting but Brickbats We Recall, N.Y. Times, Mar. 23, 2012,
    nts-more-than-positive-ones.html (noting that negative and positive information are processed in different hemispheres of the brain and that negative information is processed deeper than positive information).
  21. . Id.
  22. . Id.
  23. . Id. (indicating that the way we process negative and positive information impacts the significance that it holds within our brain).
  24. . Andrew Myers, Stanford Research Shows that Different Brain Cells Process Positive and Negative Experiences, Stan. News (May 26, 2016),
    05/26/stanford-research-shows-different-brain-cells-process-positive-negative-experiences. In another study, researchers conducted interviews with participants about their childhood, and even participants who categorized their childhood as happy revealed a litany of unpleasant memories. See Tugend, supra note 18.
  25. . Tugend, supra note 18.
  26. . Myers, supra note 22.
  27. . Tugend, supra note 18 (indicating that the deeper thinking that often accompanies negative emotions contributes to vivid recollections of unpleasant information).
  28. . See supra notes 23–24, and accompanying text.
  29. . Tom Branigan, Cross-Examination of Technical Experts, Mich. B.J., May 2015, at 59–60 (noting that the adage to “[n]ever ask a question on cross to which you do not know the answer” is a “well-worn mantra” of seasoned trial lawyers); Maureen A. Howard, Revisiting Trial Basics Every Time: A Ritual for Courtroom Success, 34 Am. J. Trial Advoc. 335, 357 (2010) (encouraging counsel to “source the answer to each question,” requiring that she know answers and the evidence to prove up that fact in advance); 2A Daniel J. McAuliffe & Shirley J. McAuliffe, Civil Trial Practice § 22.4 (2d ed. 2016) (explaining that only asking questions that counsel knows the answer to is a basic principle of cross-examination).
  30. . 3 Criminal Practice Manual § 84:2 (2017) (noting that effective advocates prepare background facts and depositions, among other things, in order to be adequately prepared); J. Duke Thornton, Trial Handbook for New Mexico Lawyers § 27.8 (2017) (explaining that counsel can utilize prior statements and depositions to ask questions on cross-examination).
  31. . See My Cousin Vinny (Twentieth Century Fox 1992). An excellent example of an impeachment by common sense (albeit dramatized) is shown in this film, when Joe Pesci’s character (the eponymous “Vinny”) impeaches an eyewitness on cross-examination with his having “magic grits.” Id.
  32. . 81 Am. Jur. 2d Witnesses § 714 (2018) (noting that advocates have wide latitude to impeach and discredit witnesses if they make an inconsistent statement); Roger C. Park & Aviva Orenstein, Trial Objections Handbook § 7:2 (Thomson Reuters, Trial Practice Ser., 2d ed. 2017) (explaining that a witness may be impeached to show defects in their “perception or ability to observe”); 9 Standard Pennsylvania Practice § 54:143 (2d ed. 2018) (emphasizing that advocates may introduce evidence that is inconsistent with the witness’s testimony to impeach the witness).
  33. . Jim Zirin, Getting at the Truth? Cross-Examination is the Crowning Glory of Our Legal System, Forbes (Feb. 11, 2014, 4:28 PM),
  34. . Id.
  35. . Id. (noting that the defendant garnered favor and changed the sympathies of spectators with his answer).
  36. . Homer L. Deakins, Jr., Cross-Examining the Plaintiff in an Employment Tort Case, in Litigating the Employment Tort Case § 7.04 (Daniel J. Rose ed., 2001) (noting that “it is critical that [a cross-examiner] control the witness”). See also 4 Robert L. Haig, Commercial Litigation in New York State Courts § 42:23 (Thomson West, New York Practice Ser., 4th ed. 2017) (explaining that leading questions are a primary tool that advocates use to control the witness); Jeffrey L. Kestler, Questioning Techniques and Tactics § 2:22 (Thomson Reuters, Trial Practice Ser., 3d ed. 2017) (noting that clear and simple questions can align the witness’s narrative with the advocate’s narrative); Fred Lane, 4 Lane Goldstein Trial Technique § 19:39 (3d ed. 2017) (indicating that advocates can retrieve desired responses from witnesses by asking leading questions).
  37. . Steven E. Arthur & Robert S. Hunter, Federal Trial Handbook Civil § 37.5 (4th ed. 2017) (observing that leading questions typically leave witnesses with the choice of answering “yes” or “no”). See also 6 David R. DeMuro, Colorado Practice Series §  9.17 (2d ed. 2017) (noting that “classic leading question[s]” begin with “Isn’t it true that . . .”); 22 Stephen A. Hess & Sheila K. Hyatt, Colorado Practice Series § 7:9 (2017–2018) (explaining that “[a] leading question is one that suggests to the witness the answer desired by the examiner”) (quoting 1 John William Strong, McCormick on Evidence § 6 (5th ed. 1999)).
  38. . 43A Harry P. Carroll & William C. Flanagan, Massachusetts Practice § 14:42 (3d ed. 2017); Kestler, supra note 34, § 5:9:50 (noting that hostile witnesses, by definition, are not cooperative).
  39. . See Branigan, supra note 27, at 59 (suggesting that attorneys use cross-examination only “to expose flaws, teach the jury, and prove [their] points through the opposing expert . . . .”).
  40. . Todd E. Edelman, Cross-Examination as Story-Telling, 12 Clinical L. Rev. 107, 119 (2005) (indicating that opening and closing statements can frame the examiner’s narrative, but cross-examination can reinterpret the narrative to that examiner’s narrative).
  41. . Janet Cotterill, Collocation, Connotation, and Courtroom Semantics: Lawyers’ Control of Witness Testimony Through Lexical Negotiation, 25 Applied Linguistics 513, 515, 533 (2004).
  42. . Id. at 533.
  43. . W. Lance Bennett & Martha S. Feldman, Reconstructing Reality in the Courtroom 94 (1981).
  44. . Id.
  45. . Id. at 94–95; Elizabeth F. Loftus & John C. Palmer, Reconstruction of Automobile Destruction: An Example of the Interaction Between Language and Memory, 13 J. Verbal Learning & Verbal Behav. 585 (1974).
  46. . Perrin et al., supra note 11, at 286.The precise form of the leading question is not as important as the fact that it is leading. Nevertheless, an easy method for ensuring that every question is appropriately leading is for the examiner to make a series of assertions, each preceded or followed, if necessary, by a word or phrase to make a question.


  47. . See, e.g., Arthur & Hunter, supra note 35, § 37:5 (describing a leading question as “[t]he most powerful weapon the cross-examiner has to control an adverse witness”); see also Stephen E. Arthur & Robert S. Hunter, 2 Federal Trial Handbook: Criminal § 46:6 (4th ed. 2017).
  48. . See Nancy Hollander & Barbara E. Bergman, Everytrial Criminal Defense Resource Book § 40:5 (2017).
  49. . Carroll & Flanagan, supra note 36, § 13:25 (noting that open-ended questions yield expansive answers from witnesses); Perrin et al., supra note 11, at 286 (stating that “[c]ounsel relinquishes control by asking questions that are not leading, allowing hostile witnesses to reiterate their harmful testimony, and potentially compromising the examiner’s case”).
  50. . James W. McElhaney, Classics of the Courtroom: Highlights from the Direct and Cross-Examination of Richard Hauptmann i–iii (1988).
  51. . See id. at 112–13. The prosecutor’s point was likely meant to vilify the defendant and paint him in direct contrast to his alleged victim’s father, Charles Lindbergh, an American hero. Id. at i.
  52. . See id. at iii. This case is historically considered a miscarriage of justice for a number of reasons, including mishandled evidence and rampant prosecutorial and police misconduct. Id.
  53. . Id. at 112–13.
  54. . Francis P. Bensel et al., Personal Injury Practice in New York § 9:300 (2017) (noting that questions with multiple questions are objectionable); Jordan Patrick Browne & Carolyn C. Van Tine, Trial Practice Techniques, in 2 Massachusetts Divorce Law Practice Manual § 17.6.6(a) (3d ed. 2012 & Supp. 2016) (encouraging examiners to use short questions with plain language); 6 Lynn McLain, Maryland Practice Series § 611:7 (2017) (explaining that questions that are disjunctive, conjunctive, contain couple positive elements and negative elements, and use double negatives are compound questions that are likely to be misleading and ambiguous).
  55. . Perrin et al., supra note 11, at 287–89.
  56. . Id. at 288.
  57. . Notable Cross Examinations 98–110 (Edward Wilfrid Fordham ed., Greenwood Press 1970).
  58. . Id. at 98–99.
  59. . Id. at 98.
  60. . Id. at 107–08.
  61. . Id.
  62. . Dr. Crippen was convicted and sentenced to death. Id. at 110.
  63. . Larry S. Pozner & Roger J. Dodd, Cross-Examination: Science and Techniques § 10.24 (3d ed. 2018) (indicating that cross-examination is a skilled enterprise); Perrin et al., supra note 11, at 286–87 (“[A]dvocates must ask short questions that seek only one fact each . . . . Cross-examiners must eliminate opportunities for the witness to give expansive or evasive answers and the best means of doing that is by asking short and simple questions—one fact, one question.”).
  64. . See Pozner & Dodd, supra note 61, § 10.24 (“By placing only a single new fact before a witness, the witness’s ability to evade is dramatically diminished. Simultaneously, the ability of the factfinder to comprehend the significance of the fact at issue is greatly enhanced.”).
  65. . George A. Miller, The Magical Number Seven, Plus or Minus Two: Some Limits on Our Capacity for Processing Information, 101 Psychol. Rev. 343, 349 (1994).
  66. . Id. at 351.
  67. . See id. at 348.
  68. . See Mogill, supra note 4, § 8:59 (noting that oftentimes attorneys must use careful phrasing to ensure that their presentation is effective); Perrin et al., supra note 11, at 295 (“When advocates ask witnesses on cross-examination to agree with the advocate’s characterizations of events or people, the witness may feel compelled to explain why the characterization is wrong or inaccurate. The more provocative the characterization, the more likely the witness will not simply answer ‘yes’ or ‘no.’”).
  69. . See Mogill, supra note 4, § 8:55.
  70. . Cotterill, supra note 39, at 525–27.
  71. . Id. at 525–26.
  72. . Id. at 527.
  73. . Id. at 525–26.
  74. . Christina Steindl et al., Understanding Psychological Reactance: New Developments and Findings, 223 Zeitschrift Für Psychologie [Mag. Psychol.] 205, 205 (2015). Reactance generally is defined as “an unpleasant motivational arousal that emerges when people experience a threat to or loss of their free behaviors.” Id.
  75. . Id. at 209 (citing C.H. Miller et al., Psychological Reactance and Promotional Health Messages: The Effects of Controlling Language, Lexical Concreteness, and the Restoration of Freedom, 33 Hum. Comm. Res. 219, 230–31 (2007)); Brian L. Quick & Michael T. Stephenson, Examining the Role of Trait Reactance and Sensation Seeking on Perceived Threat, State Reactance, and Reactance Restoration, 34 Hum. Comm. Res. 448, 465–67 (2008).
  76. . Rex A. Wright et al., Persuasion, Reactance, Judgments of Interpersonal Appeal, 22 European J. Soc. Psychol. 85, 90 (1992).
  77. . Id.
  78. . Id.
  79. . See id.
  80. . Perrin et al., supra note 11, at 293.In the same way, ‘witness dumping,’ wherein the witness attempts to dump as much of her case as possible into the opponent’s cross-examination, is a time-honored practice. One effective device to deal with such efforts . . . is to simply repeat the question. Another technique, however, is to discipline the witness for going beyond the scope of the question, to teach that such attempts to subvert the cross-examination will not be tolerated.


  81. . Larry Pozner & Roger J. Dodd, Cross Examination: Skills for Law Students 266–67 (2009) (identifying the runaway witness as “one of the greatest fears of the cross-examiner”).
  82. . See infra note 81.
  83. . Jones et al., supra note 8, §§ 9:50, 9:90 (Rutter Grp. Practice Guides, 2018) (warning examiners of the dangers that can arise from “yes” or “no” questions); Id. § 9:99 (discouraging the overuse of leading questions). See also Lane, supra note 34, § 19:6 (noting that insulting, disparaging, and argumentative questions are not permitted).
  84. . 2 Russ Herman & Joseph E. Cain, Louisiana Personal Injury § 12:147 (Louisiana Practice Ser., 2017–2018) (suggesting that examiners do not ask long narrative questions).
  85. . Pozner & Dodd, supra note 61, § 15.
  86. . But see 28 Charles Alan Wright & Victor James Gold, Federal Practice & Procedure § 6164 n.22 (2d ed. Sept. 2018 Update) (collecting cases in which courts have used their power to preclude narrative testimony).
  87. . See Terence MacCarthy, MacCarthy on Cross-Examination 120–21 (2007) (noting that an attorney demanding yes or no answers can appear “overbearing”).
  88. . Id. at 121; James L. Mitchell, Cross-Examination, Payne Mitchell L. Grp. 13 (2007), (noting that objections to non-responsive answers are the only type of legal objections that can be used as a technique to control the witness); Steven H. Goldberg & Tracy Walters McCormack, The First Trial: Where Do I Sit? What Do I Say? In a Nutshell 318 (2009) (“Interrupting is rude, and is not viewed any more favorably by jurors than by anyone else.”).
  89. . 8 Leonard R. Stamm, Maryland Practice Series § 8:5 (2017) (indicating over twelve methods to address nonresponsive witnesses).
  90. . See Sandra H. Robinson, Cross-examination—A Delicate Balance, in 2 American Trial Lawyers Association CLE Conference Materials (2002) (noting that preparation and strategy are essential to an effective presentation to a jury).
  91. . See Stamm, supra note 87, § 8:5 (noting that, “[w]hen asked the same question in the same words, in the same tone three times, it is difficult for the witness to continue evading the appropriate response”).
  92. . Charles B. Gibbons, Federal Trial Objections § N20 (6th ed. 2017) (citing United States v. Carr, 5 F.3d 986 (6th Cir. 1993)) (indicating that, after an objection to a non-responsive answer by witnesses, the court may strike the answer or give a limiting instruction); 2 Barbara E. Bergman et al., Wharton’s Criminal Evidence § 8:36 (15th ed. 2017) (“When it appears that the witness is about to make a non-responsive answer, the court has the power to stop the witness from doing so.”).
  93. . Stamm, supra note 87, § 8:5 (noting that the technique is effective “when counsel has asked a straightforward, well-crafted question”).
  94. . Id.
  95. . Wellman, supra note 4, at 357.
  96. . Id.
  97. . See id. at 359–63.
  98. . Id. at 360.
  99. . See 98 C.J.S. Witnesses § 569 (Sept. 2018 Update) (noting that a witness who is non-responsive may be pressed for an answer or compelled to answer by the court).
  100. . Jeffrey T. Frederick, The Psychology of the American Jury 179 (1987).
  101. . Wesley G. Moons et al., The Impact of Repetition-Induced Familiarity on Agreement with Weak and Strong Arguments, 96 J. Personality & Soc. Psychol. 32, 32 (2009). Of course, repetition alone is not the sole factor in persuading the recipient of the truth of the information; “[b]oth controlled processing of message content and the automatic impact of repetition-induced familiarity contribute to the agreement.” Id. at 42.
  102. . Id. at 32.
  103. . Id. For instance, even exposure to the phrase “Statue of Liberty” prior to being presented with the statement “[t]he extended right arm of the Statue of Liberty is 42 feet long” causes the statement to be perceived as more true. Id.
  104. . 4D American Law of Products Liability 3d § 71:44 (3d ed. 2018) (noting that examiners have to trust the jury); Harry J. Plotkin, Building Trust Among the Jury, Orange Cty. Law., Aug. 2005, at 28 (explaining that it is essential for examiners to build trust among the jury); Martin Blinder, Psychiatry in the Everyday Practice of Law § 15:1 (4th ed. 2016) (noting that jurors are more likely to trust the words of gracious and even-handed examiners).
  105. . Steve M. Wood et al., The Influence of Jurors’ Perceptions of Attorneys and Their Performance on Verdict, Jury Expert, Jan. 2011, at 24, (noting that juries evaluate the “dress, demeanor, and personality [of attorneys], along with the case evidence”).
  106. . Blinder, supra note 102, § 15:3 (noting that it behooves examiners to be orderly and rational); Jason Bloom & Karin Powdermaker, Building Rapport in the Courtroom, 69 Tex. B.J. 540, 543 (2006) (emphasizing the importance of examiners to be prepared, organized, and succinct); 6 David Boies & Stephen Zack, Litigation Technology, in Business & Commercial Litigation in Federal Courts § 66:31 (Robert L. Haig ed., 4th ed. 2017) (noting that a disorganized and flustered examiner will negatively influence the jury’s perception of their case).
  107. . See Blinder, supra note 102, § 15:1.
  108. See Wood et al., supra note 103.
  109. . See Lane, supra note 34, § 19:13.
  110. . See Jake E. McGehee, A Guide to Direct Examination and Cross-Examination, GP Solo, Sept.–Oct. 2014, at 31 (noting that a common goal of cross-examinations is to decrease an adverse witness’s credibility with the jury).
  111. . Mogill, supra note 4 (“[T]he attorney who shreds the personal dignity of a witness may end up finding that her apparent success has boomeranged on her, as the jury becomes offended at counsel’s insensitivity.”).
  112. . Perrin et al., supra note 11, at 296–97 (noting that a witness under cross-examination will never agree to a lawyer’s characterization of the witness’s actions as malicious or wrong, but will have no choice but to agree to simple statements of fact).
  113. . See Walter Probert, Courtroom Semantics, 5 Am. Jur. Trials 695, § 91 (1965); Carroll & Flanagan, supra note 36, § 14:25.
  114. . While these types of occasions run counter to Lane, supra note 34, § 19:13 and accompanying text, they do exist and must be handled carefully when presented.
  115. . Ryan J. Winter, Would Someone Please Wake Juror Number Five?, Monitor on Psychology, Sept. 2010, at 26 (indicating that juror boredom can create inattention).
  116. . Id.
  117. . Howard, supra note 27, at 357 (encouraging advocates to make clear and simple statements to ensure that they make their case effectively).
  118. . Perrin et al., supra note 11, at 328–29 (“Whether making or responding to objections, advocates should not be taken by surprise. An essential task in preparing for the examination of any witness is to anticipate the objections from opposing counsel and to know in advance appropriate responses.”).
  119. . This will of course vary based on the advocate’s knowledge of the judge in the particular trial. Care should be taken to prepare for possible objections on cross knowing their opponent’s propensity to object, the likely arguments they will make for certain more important objections, and how the judge might rule. This may pose a challenge for newer advocates unfamiliar with a particular judge and/or opposing counsel.
  120. See Bloom & Powdermaker, supra note 104.