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JURY RESEARCH UPDATE

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A witness for the opposing party has testified, possibly producing a shift in the jury's view of the case.  This shift needs to be attenuated or reversed.  Thus, the major purpose of cross-examination is to discredit the witness through attacks on the ability of the witness to (a) know the true state of affairs (knowledge/expertise) and/or (b) accurately relate this information to the jury (trustworthiness)—the two components of credibility.  Additional purposes of cross-examination include the use of the testimony of the witness to discredit others of the opponent's witnesses and to uncover any favorable evidence for one's case.

Several considerations should be kept in mind concerning cross-examination.  First, cross-examination rarely discredits totally the witness's testimony.  Research indicates that, in all but the most extreme cases, discrediting a witness on cross-examination fails to eliminate totally the persuasive impact of the witness.  As discussed in a previous issue on opening statements, this fact highlights the need to bring into question the credibility of opposing witnesses prior to their appearance on the witness stand.

Second, ineffective cross-examination carries several risks:  (a) the reinforcement of the testimony previously given by the witness, (b) the negative reaction on the part of jurors to the examiner, and (c) the generation of sympathy for the witness.  Finally, the scope of cross-examination, if any cross-examination is needed, should be controlled by the amount of damage suffered on direct examination, the ability to attenuate the damage, and the potential for favorable evidence being revealed to the jury.

The following are a number of recommendations that will make cross-examination more effective.

Know where you are going before you start.  This recommendation is fundamental to effective cross-examination of a witness.  Without a plan as to what will be elicited from the witness, the cross-examination appears disorganized and the jury is less able to see the significance of points made during the examination.

Conduct the examination in an organized manner.  An organized cross-examination leads the jury to the important points.  The jury is able to see the significance of the points made when they are made.  The tactic of switching from topic to topic in hopes that a witness will become confused, and thereby make a mistake, carries with it the potential of confusing the jury as well.  While questioning need not be so obvious that the witness can anticipate and prepare for critical questions, it should not be done in a manner which leaves the jury with the question, "What is important about the witness's answer?"

Do not ask unclear or confusing questions.  Not only should the examination be organized to prevent juror confusion, but the questions asked should not be unclear or confusing.  The goal is to have jurors understand the points that are being made. Jurors who are confused by the questions will not understand the importance of the answers given.  In addition, perceptions of the attorney's competence can be diminished by the attorney asking confusing questions.

Be confident.  When examining the witness, the cross-examiner should project confidence.  Confidence (but not arrogance) enhances believability.  In the give and take of cross-examination, jurors look to see how the cross-examiner reacts to what the witness is saying.  If the jurors detect, through the reactions of the cross-examiner, that the witness has hurt the cross-examiner's case, they will attach significance to this testimony.  However, if the cross-examiner always projects confidence, the jury is less able to judge the testimony by how the cross-examiner responds.  The end result being the lessening of the impact of damaging testimony to the cross-examiner's case and the increase in credence given to favorable evidence elicited on cross-examination.

Do not treat all opposing witnesses as being dishonest.  Witnesses who are not subject to attack on credibility grounds or who can provide favorable evidence to the cross-examiner should not be questioned as if they are not telling the truth.  The examination should be directed to uncovering what favorable evidence is available and should conclude on a respectful note.

Keep control of the witness.  Maintaining control of the witness is very important.  Witnesses should not be allowed to restate and reinforce what they have said on direct examination.  Particularly with "professional" expert witnesses, witnesses know that they should do their best to reinforce their testimony from direct.  This leads some witnesses to answer any yes or no question as if it were an invitation to lengthy discourse on the subject.  When faced with the witness who is deliberately nonresponsive to your questions, alert the jury as to this fact.  Let the jury know that detailed explanations are appropriate at a later time.  For the nonresponsive witness, use judicial instructions and, if necessary, silence to control the witness's answers.  A calculated pause following the nonresponsive answer or a pause followed with a question, such as "Was that a yes?" highlights the inappropriate nature of the witness's behavior.  However, the pause should not come as a consequence of the examiner fumbling through notes or documents.  Such a pause simply opens the floor to the witness filling in the silence with a further explanation of his/her position.  It is also important that control be established early and not become a continuing problem throughout the examination.

Do not engage in "simultaneous" speech.  The attorney conducting cross-examination should not fight for control of the interaction by speaking at the same time as the witness is speaking.  Attorneys who engage in this practice are viewed by jurors in a more negative light than attorneys who do not engage in simultaneous speech.

Do not ask redundant or irrelevant questions.  One of the most frequently mentioned criticisms made by jurors of attorneys is the asking of redundant questions.  Jurors view this practice as a waste of their time, and their view of the competence of the offending attorney is correspondingly lowered.

Capitalize on defensive witnesses.  Some witnesses can become defensive during cross-examination.  This defensiveness can lead to a reluctance on the part of the witness to admit even the smallest error or uncertainty.  The failure to admit to obvious yet insignificant mistakes or inaccuracies decreases the witness's credibility in the eyes of jurors.  By carefully constructing a series of questions which promote a consistent pattern of responses, defensive witnesses can be led through examination to take more extreme positions than otherwise would be the case.  Often the defensive witness is reluctant to agree with the cross-examiner and, hence, is more easily led by questions whose less extreme answers would indicate agreement with the examiner.

Use personal space to your advantage.  In many cross-examination situations, witnesses feel uncomfortable with or even hostile toward the cross-examiner.  These feelings can lead to negative reactions when the attorney comes physically close to the witness.  These reactions arise out of the stress associated with what are called "violations of personal space."  Personal space refers to the preference for certain physical distances between oneself and others, a preference that varies with the nature of the interaction.  When unwanted violations of personal space occur, the individual feels stress and will attempt to restore physical or "psychological" distance in order to reduce this stress.  Unless the witness views the cross-examiner as helping the witness, it is likely that close physical proximity is not desired by the witness.  The stress produced by the unwanted close physical proximity can lead to the witness exhibiting signs of discomfort.  Thus, when an attorney approaches the witness during cross-examination and stands close to the witness while the witness is asked to examine a document or read part of a document to the jury, the witness is likely to feel an increase in stress from the interaction.  This increased level of stress can lead to outward signs of nervousness with the subsequent lowering of credibility of the witness in the eyes of the jury.

Make notations, if necessary, on the physical evidence used by the witness.  Do not concede that the physical evidence used by a witness properly communicates the appropriate information to the jury.  If the physical evidence, e.g., charts, graphs, or pictures, is misleading, the attorney (or the witness) should make the appropriate corrections on the exhibit during cross-examination.  In some situations, it is possible that the cross-examiner's theory of the case can be advanced through having the witness make appropriate notations on the exhibit.  These corrections or notations will assist in preventing an important piece of physical evidence from simply reflecting the witness's conclusions or assumptions.  Making corrections to an exhibit is imperative when the exhibit will be available to the jury during its deliberations.

Use videotaped depositions for impeachment purposes.  Traditionally, attorneys have used written transcripts of depositions to alert the jury to prior inconsistent statements made by a witness.  When faced with these discrepancies, the witness is forced to explain why he or she made the earlier statements.  The witness has a number of options beyond admitting that his/her present testimony is erroneous—usually centering on some confusion or misunderstanding present during the deposition.  Sometimes a witness may respond by accusing the cross--examiner of causing the problem, stating, "The way you were asking me questions that day, you had me completely confused."  The important point to be made here is that witnesses are often made aware of the problems in their deposition testimony by their attorneys prior to trial.  When it comes time for cross-examination, the witness is usually well prepared to respond to the prior inconsistent statements.  Jurors observing the witness see someone whose demeanor on the stand appears credible as compared to the written transcript.  However, excerpts from important witnesses' videotaped depositions can clarify what really happened on deposition—the witness was not confused (or harassed) when the statements were made.  Jurors get a chance to see how sincere the witness was as he/she made the earlier damaging statements.  Today's video technology allows the cross-examiner to index and play selected portions of a videotaped deposition with minimal interruption in the examination process.

Conduct cross-examination immediately after direct.  While cross-examination normally follows direct examination, there are times when recesses are taken prior to the start of cross-examination.  This poses a problem for the cross-examiner.  The examiner does not want the jury to review and reinforce the testimony of a witness prior to discovering that there are reasons to question the credibility of the witness's testimony.  When a recess is short, this problem is not particularly troubling.  However, when the recess is long, e.g., overnight, the problem could be acute.  In light of this, the cross-examiner should ask the court for permission to ask a few questions prior to taking a long break.  These questions should be designed to alert jurors as to the need to question the witness's testimony but not make future questioning redundant.

Start strong and end strong.  Consideration should be given not only as to what points the attorney wants to bring out during cross-examination but when important points should be made.  As with direct examination, attorneys should capitalize on the presence of primacy and recency effects.  Primacy and recency refer to the principle that information is remembered best when encountered first or last respectively.  The issue of when primacy and recency effects will dominate is complex.  However, as a rule, information encountered in the middle is remembered least well.  In view of this, cross-examination should start on a strong point, capitalizing on primacy effects.  In addition, the attorney should save an important or dramatic point upon which to end the cross-examination, capitalizing on recency effects.  Cross-examination should not trail off with the jury wondering why the examination continued beyond what was necessary.

Effective cross-examination is organized and concise.  Jurors are able to follow the direction of the cross-examiner, understanding the important points at the time when they are being made.  The witness is kept under control by the examiner through the questions asked and the examiner's treatment of nonresponsive answers.  Finally, the effective cross-examiner takes advantage of those opportunities available in the situation that can decrease the witness's credibility in the eyes of jurors and/or further reveal favorable information about one's case.

About the editor:

Jeffrey T. Frederick, Ph.D., is the Director of Jury Research Services for the National Legal Research Group. He has consulted with attorneys since 1975 on jury selection, case preparation, and trial presentation issues. He is a frequent speaker at continuing legal education programs across the nation. His publications include two books, Mastering Voir Dire and Jury Selection: Gaining an Edge in Questioning and Selecting a Jury (ABA Press, 1995), The Psychology of the American Jury (Michie Co., 1987), and a number of articles on the topics of voir dire, jury selection, and persuasion. Those interested in information on jury research services are encouraged to call 1-800-727-6574.

LET US HELP YOU IN YOUR NEXT JURY TRIAL. We know jury trials. We offer a broad range of services including basic case evaluation, voir dire development, evidence and argument preparation, jury selection, focus groups, trial simulations, and jury surveys. All service packages are tailored to meet your litigation needs given the resources available. For more information call Dr. Jeffrey Frederick, Director of Jury Research Services, at 1-800-727-6574.