Did you know that 98% of criminal matters in the State of Texas settle before trial? These days, criminal lawyers apply their fact finding and persuasion skills outside the courtroom more than inside a formal trial. However, you can’t get a good outcome without any bargaining chips. A good defense attorney’s main leverage in a case is the threat of trial, which means a lot of work for the prosecutor and the risk of a total loss in the form of a not guilty verdict. An attorney can get a not guilty verdict at trial with the help of a strong cross examination. Here are the Five Golden Rules of cross examination if you find yourself headed towards trial.
Be brief, using short questions and plain language.
Jurors come to trial with attitudes ranging from mildly curious to majorly inconvenienced. They don’t want to be there, and they’re not paying close attention as a matter of course. As a skilled defense attorney, it’s your job to command their attention throughout the course of the trial. If you don’t have their attention, you can’t be persuasive. To that end, BE BRIEF! On cross, make no more than three points (and two is better, and one is best of all). Think of cross examination as a commando raid, not a prolonged invasion.
Only ask leading questions.
You can’t ask leading questions on direct examination, but on cross, you should never ask a question which isn’t leading. You’re telling a story, punctuated briefly by the witness’s monosyllabic responses. You are in control, and direct where the narrative goes. Don’t permit the witness to repeat anything he said on direct, which reinforces his testimony to the jury through the power of repetition. Don’t permit the witness to explain anything (“yes, but . . .”). Keep control of your cross examination by asking only leading questions.
Only ask questions to which you know the answer.
Trial is not the time to gather new information. Use the time before trial to prepare and gather as much information as possible, then put it on display in the light that best advantages your client the day of trial. If you ask a question to which you don’t know the answer, you run a great risk of getting a response that hurts your case. Many lawyers, seeking to deal the finishing blow to the State’s case on cross, have committed suicide to their own case instead. Ask questions to which you know the answer and stop before asking any question to which you don’t.
Stop one question too soon.
This is counter-intuitive to the novice trial lawyer, who wants to get everything out on the table right on cross examination. But the time for that comes later, at closing arguments. The purpose of cross examination is to support your closing argument. Don’t make your point right there—instead, leave the jury curious about your line of questioning by laying out the dots . . . then connecting them in your closing argument. They will pay closer attention, and you will be more persuasive, if you stop one question too soon.
Not every cross examination goes as planned. You might have done your due diligence by reading a police statement, taking a witness statement, or gathering other information pertinent to your case, only to find that the witness gets on the stand at cross examination and testifies under oath that the sun rises in the west and sets in the east. Resist the temptation to fight back, argue, or quarrel in any way with the witness if this happens. Instead, simply sit down. Come back in your closing and impeach their credibility by showing what they said was false. Quarreling with the witness on cross is unseemly to a jury, and runs the risk of impeaching your own credibility.
Contact the Skilled Trial Attorney Who Has Experience Winning in the Courtroom
If you’ve been charged with a crime, you have a choice of who to hire to represent you. Don’t take chances with a lawyer who doesn’t have the experience to take a case all the way to trial. Contact the Law Office of Walker Fults at (214) 797-1861. We will use our considerable knowledge and experience to fight until we get the very best outcome for your case.