Here are my tips for cross examining hostile or adversarial witnesses.
- Ask leading questions. These are questions that require a yes or no answer (e.g., “Did you actually see the defendant assault the alleged victim?”)
- Know the answers to your questions before you ask them.
- If the witness gives a false or misleading answer, be prepared to impeach his credibility. This is often easier to do with police officers because they write detailed reports about the relevant facts. Additionally, most arrests and investigations are recorded on body cameras, cruiser cameras, booking cameras, etc. If a testifying officer omits or misconstrues an important fact, you can usually point it out to the court or the jurors. It often takes more effort to impeach a lay witness because they provide little to no written statements regarding the facts of the case.
- Be brief. Nothing is gained from a long, hostile cross examination. It burns out the jurors, the judge, and everyone else in the courtroom. As Professor Irving Young said in this Ten Commandments of Cross Examination: “You’re not storming the beaches of Normandy. It’s a commando raid. Get in. Get out.”
- When dealing with an argumentative witness, remind the witness that he can elaborate all he wants on re-direct examination. This tactic has worked for me more than once. I’ll ask the witness a yes-or-no question. The witness repeatedly won’t give a straight answer and instead tries to dominate the exchange. In a polite way, remind the witness that the opposing attorney can and likely will conduct a redirect examination. During that redirect, the witness can expound all he wants on his answers to my questions. But, during cross examination, just answer yes or no.