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Irving Younger’s 7th Commandment It is probably the most common mistake – the cross-examiner has the witness repeat their direct examination. Question: “On direct examination you told this jury that . . .” The error is grievous. It violates Irving Younger’s 7th commandment: “Don’t allow the witness to repeat his direct testimony.” Younger’s commandment directs the cross-examiner  to focus on accomplishing the goals of cross-examination which are to gain concessions that either bolster the cross-examiner’s…
On cross-examination, avoid pitting. When the cross-examiner asks the witness to contradict another witness, it’s called pitting. Here’s an example: Q. . . .You never told those detectives that you were a lookout in this case, huh? A. No I didn’t. Q. So you heard them both get up there and say that you told them that, right? . . . Q. And, now, I guess, you’re telling this jury that these two detectives came…
What follows is a list of five of my favorite books on cross-examination. These books are not strangers to this blog that concentrates on the art and science of cross-examination because I have blogged about them before. Below you will find the five favorites, including mine of course. With each book, you’ll find a link to where you could purchase it on Amazon as well as a gem from the earlier blogs and links to…
First Jury Selection Via Zoom in Texas An article in the May 11, 2020 ABA Journal, entitled “Could Zoom jury trials become the norm during the coronavirus pandemic” explored the constitutional hurdles to a virtual jury trial. The article quoted Locke Bowman, executive director of the MacArthur Justice Center in Chicago, as saying that “trials by video would likely compromise rights of defendants under the Sixth  Amendment’s Confrontation Clause, which allows them to confront witnesses.”…
In the past, we have discussed how to handle the evasive witness on cross-examination. In Chapter 10 of the Cross-Examination Handbook, we explore the different methods witnesses use to evade the question and how to control the witness. The inimitable Elliot Wilcox discussed this topic in a blog piece entitled, “How to Detect ‘Non Answers’ During Cross-Examination” Here’s what Elliot Wilcox has to say on the subject: Prof. John Henry Wigmore argued that “Cross…
Visit the Cross-Examination Handbook WEBSITE. This website is dedicated to the Handbook and everything involving cross-examination. Features of the website include the following: Inside the book–The contents of the book Author Information Teacher’s Resources—Login for a Teacher’s Manual for professional development CLE workshops and law school courses and clinics, which can be Cases Files–The case files that come with the book and are for use in CLE programs and law school classes
Go Big: As we explain in Cross-Examination Handbook: Persuasion, Strategies, and Techniques, the primary purpose of cross-examination is to convince the jury to adopt your case theory and reject your opponents. This is the big picture. To do this, seek concessions that either build upon or protect your  own case theory or damage the other side’s. A secondary purpose is to impeach the witness’s credibility as unworthy of belief, thereby damaging your opponent’s case.…
   In Cross-Examination Handbook: Persuasion, Strategies, and Techniques, we explore both the evidentiary and ethical issues that proof of a prior inconsistent statement raise. If a lawyer wishes to impeach with a prior inconsistent statement, can the lawyer offer the prior statement into evidence through extrinsic evidence, such as testimony by the witness to whom the prior statement was given? Federal Rule or Evidence 613(b) clearly states: “Extrinsic evidence of a witness’s prior inconsistent statement…
Shane Read never disappoints his readers, and this is certainly true with his book Winning at Cross-Examination: A Modern Approach for Depositions and Trials. As someone who has written a book on cross-examination—Cross-Examination Handbook: Persuasion, Strategies, and Techniques, perhaps I should be jealous and critical. I’m not and won’t be. His book is splendid, proving that you can never write enough about activity that demands thorough preparation and has accurately been described as…
Even when you are equipped with the skills and strategies covered in Cross-ExaminationHandbook, they will not be enough to do damage to the credibility of a tough witness. A tough witness is one who is armed with the truth and has been thoroughly prepared to testify at trial. The best that you can accomplish with a tough witness is to elicit concessions that either support your case theory or undermine the other side’s case theory.…