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Wednesday, April 26, 2017

The Power of Cross-Examination

     The ability to conduct an effective cross-examination is one of the most important skills in the arsenal of the trial attorney, as well as one of the most difficult to master. If the witness, as is usually the case, is telling the truth as he knows it, but that truth is overly slanted in the favor of say, the prosecution, then the defense attorney must bring that truth back toward or past the middle by careful questioning. However, if he is too assertive with a likable witness who appears to be honestly trying to tell the truth, then he runs the risk of alienating the jury and undoing any good he accomplishes in the examination.

     One question on cross-examination that tends to be productive is, "Have you discussed your testimony with the state's attorney or anyone from his office?" The answer almost has to be "yes," because the prosecutor would be foolish to put anyone on the stand without knowing what he or she is going to say. But many witnesses think that it's wrong to admit to having talked about their testimony. Consequently, they will often hem and haw and deny it, and end up looking furtive when they are forced to admit that, yes, they spoke to the prosecutor twice in his office.

Louis Nizer, My Life in Court, 1961

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