WHY CROSS EXAMINE?

Why cross-examine a witness? My view is that it's done with the principal purpose of
giving you a basis for the arguments you will make in summation at the end of the case.

There are at least two different types of cross-examination:

(1) Supportive (Concession Based) Cross-Examination: This type of cross is

employed when you want to ask questions and get answers that support and
advance your case. In a supportive cross, you won't use your questions to attack,
pillage, and plunder the witness. Instead, you use cross to obtain favorable
information, e.g., admissions, fill-in-the-gaps in the story facts, etc., from the
witness. Think about it. If you can develop favorable evidence from the
opposition's witness, you can then argue, "Their own witness said (insert the
testimony favorable to your position)." It adds credibility to your evidence if it
comes from an opposing witness. If you are going to rely on the evidence from an
opposition witness, it may not make sense to attack the credibility of that witness.
Occasionally, the testimony on direct may be so helpful to your theory of the case
that you simply have the witness repeat it on cross and pass the witness. In most
instances, the favorable evidence that you will accrue from opposition witnesses
will come in small increments. Seldom will you receive a single blockbuster
answer that obliterates or skews the opposition's theory of the case; however, it
does happen.

(2) Discrediting Cross-Examination: A discrediting cross-examination occurs

when you attempt to discredit the believability of a witness' factual testimony by
showing that it doesn't jibe with common sense and/or with what others say. You
may want to use cross to show what the witness does not know or what the
witness did not do in investigation. You may want to employ cross to impeach the
witness. Evidentiary procedure and rules provide a number of traditional modes
of impeachment. For example, a witness may be impeached by proof of inability
to understand the nature and obligation of an oath to tell the truth, Rule 601(a)
TRE (children and the insane) and Rule 603 TRE; proof of difficulty in perception,
Rule 602 TRE; proof of faulty memory, Rule 602 TRE; proof of inability to
communicate, Rule 604 TRE; proof of bias, Rule 613(b) TRE; proof of interest in
the outcome; proof of motive to falsify; proof of corruption, as when a witness has
 been offered an incentive, reward, sentencing concession, or bribe for her
testimony; proof of the witnesses admissible prior criminal convictions, Rule 609
TRE; proof of the witness' prior inconsistent statement (PIS), Rule 613 (a) TRE.
Sometimes you can discredit an opposition witness by something in addition to or
other than cross-examination, e.g., where you use another witness to prove the
target witness' bad reputation for telling the truth per Rule 608 TRE or where you
show under Rule 613(a) TRE through extrinsic evidence, e,g., another witness,
that the target witness, who has denied or equivocated making a PIS did in fact
make the PIS that the target witness has denied making.

CONTACTING THE WITNESS WHO WON'T TALK TO YOU - Building Your

Impeachment

During your pretrial investigation, why should you try to contact an opposing witness
who probably won't talk with you? For the impeachment value as you begin your cross.
Make it a habit to send a letter of inquiry to each opposition witness. Send the letter by
certified mail, return receipt requested. In the letter, appeal to the witness to speak with
you or your investigator about what the witness knows about the case. Make clear that
the witness may pick a date, time, and place that is convenient to the witness. In the
alternative, have your investigator make a phone call to the witness asking the witness
to discuss the facts. When the witness doesn't respond or responds negatively you may
want to use your cross by showing that the witness is prejudiced against your side of the
case and biased in favor of the other side.

Here's an example of the dialog a cross-examiner might employ to demonstrate

the prejudice and/or bias of an opposition witness who has refused to discuss
the during the investigative phase : Q: I'm (your name), and I'm here to speak for
(name the defendant). Q: Do you recall receiving a letter from me (indicate the
date) asking if I might discuss (name the defendant) case with you? Q: And
would it be fair to say that you didn't respond to my letter asking if you would
discuss what you know about the case with me? or Q: Do you recall an
investigator from my office by the name of (state the investigator's name)
contacting you by telephone on (state the date) and asking if you would discuss
what you know about this case with us? Q: And you told (name the investigator)
that you wouldn't discuss the case with him/her, didn't you? Q: So this is the first
time that our side has had the opportunity to talk about what you know about the
accusation against (name the defendant). Q: By the way, did you talk to the
lawyers or investigators for the other side? Q: (If "yes" to the previous question,
consider asking some of the following.) When? Where? How long? Who was
present? Did you give them a written statement? Did they take notes? Were you
subpoenaed to come to court or did you come on your own?