How to Cross-Examine the witnesses against you.

Posted August 11th, 2016.

Categories: Custody Tips, Family Law.

cross-examine witnesses mark guralnick

If you are representing yourself in Family Court, you may eventually be confronted by hostile or adverse witnesses who wish to testify against you. If the court permits the other parent to call his or her witnesses to testify, you will be given an opportunity to cross-examine those witnesses. Too often, that opportunity is squandered because of inexperience about how to conduct a cross-examination.

Here are few basic rules. First, do not lose your composure. Do not show an emotional reaction to even the most absurd testimony by the other parent’s witnesses. Maintain a professional appearance, listen careful to the testimony given by the witnesses, take notes, and then be organized and prepared to cross-examine.

Unlike direct examination, cross-examination permits you to ask “leading questions.” A leading question can be worded in such a way as to contain the information you wish to elicit within the question itself. For example, if you were asking questions on direct examination to your own witness, you might ask, “Has the Defendant ever missed a scheduled visitation in the last six months?” But on cross-examination, where you can lead the opposing witnesses, your question would sound like this: Isn’t it fact, sir, that the Defendant missed five scheduled visitations during the last six months?”

On cross-examination, be sure to wait for the witness’ answer to your question. Don’t allow him to be evasive by answering your question with another question, or by rewording the question and trying to answer something you didn’t ask him. Insist on an answer to your precise question.

Never ask a question you don’t already know the answer to. If the witness can give you a variety of possible answers to your question, then it probably is not a good question. Cross-examination can backfire if you give the witness an opportunity to tell his side of the story or to introduce additional facts that do not support your arguments.

Never ask the witness to explain himself. Don’t ask “why” in response to the witness’ answers. In fact, it is best to avoid all Who-What-Where-Why-When and How questions. Stick to leading questions. You don’t want to be surprised by an explanation that you were unaware of.

Be sure to conduct your cross-examination in whatever order serves your purposes. Ask your questions in a sequence that will offer the greatest impact. Do not follow the same order in which the witness’ testimony was originally given, even if you took notes in an orderly sequential fashion. Be selective, and question the witness only about those issues where you can score points.

Know when to stop asking questions. Don’t allow yourself to become empowered by the lawyering process. Non-lawyers and inexperienced lawyers who do so have painful stories to tell about asking one too many questions and then getting burned by the answers. Ask only what you need to ask, and try to conclude when you get a useful answer. For example, when trying to impeach a witness about his own credibility, you might ask: “You have a criminal record for perjury, don’t you Madam?” The witness responds: “yes.” You continue, “And you were convicted of perjury because you were found guilty of lying to a court, isn’t that right?” The witness responds: “yes.” And then stop. Do not ask the witness to explain her conviction, or you might get an answer like this: “I was technically convicted but the judge gave me a suspended sentence. I was trying to hide the fact that my own daughter had stolen a pack of chewing gum from the store. My daughter was rendered severely brain damaged in a car accident and had wandered off when she committed the crime. She’s since died from her brain injuries, but it was an error in judgment for me to lie about it.”

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