I was watching the end of A Few Good Men the other day and it reminded me of something I’d long wondered about this (and a lot of other movies/TV shows’) depiction of lawyers examining witnesses: when “questioning” witnesses Kaffee (Cruise’s character) spends much of his time doing what appears to be testifying followed by a loaded question.
I can’t imagine this is allowed in real life, is it?
Been a long time since I saw that movie. But in Cross examination, you are supposed to put your case to the witness in order to impeach his or her testimony. The classic “it was very dark you never saw him properly did you”. And yes you are in cross supposed to ask leading questions, with one or two exceptions.
You are supposed to ask leading questions in cross, but they should be pointed. Telling a long-winded story followed by a leading question merely invites the witness to ramble off on a tangent of his own - replying to some part of your long-winded screed - and you ‘lose controll of the cross’.
On a good cross, the witness should be squirming helplessly in the questioner’s verbal grip. Long-windedness is antithical to that.
:smack:
Sorry missed the bit about being long winded. My bad. yes the man is right.
Not to mention – unless your long-winded story is bad for your case or so boring that the opposing attorney has fallen asleep-- that the opposing attorney would probably object to the long-winded story itself. If the story is about the case, it’s either saying something that hasn’t been already put into evidence (in which case there’s an immediate objection for just that) or it’s repetitive and useless (in which case the opposing attorney would probably object that there’s no question here, just to make you look bad).
In the original “Legally Blonde” Elle had a spiel about haircare vis-s-vis showering. She was told to “get to the point”.
I have never seen, but like to imagine, a long-winded cross getting cut off at the knees when either the witness or opposing counsel says “if you’re going to testify, shouldn’t you be under oath?”
Or an experienced/well-coached witness will just point it out, saying “Sorry, I got lost. What was your question again?”
antithetical
-The more long winded you are, the more openings you leave for a witness who does not appreciate being badgered by a BSer.
Would an effective riposte be something like replying: “I’m sorry, are you saying that (repeat the question /oration)? If this is what you are saying, I’m not sure I understand fully-could you repart the question”?
I suspect that the tricks of cross-examination are pretty transparent-a lawyer with experience can defeat most of them.
I was in a deposition once, and this was what I was taught to do. “I’m sorry, I don’t understand.”
Hollywood is not exactly known for its accuracy in depicting courtroom proceedings. A long question on cross will probably draw an objection, and it will probably be sustained. It’s just bad lawyering. I’ve sustained a few objections over the years to counsel “testifying” on cross.
Tv shows and movies have to advance the narrative quickly. That’s why they smoosh comment and questions into one thick syrupy speech - for the benefit of the audience following along.
But in real life, cross-examination is to ask questions (and the best questions are very focussed to prevent the witness having any wriggle room) and addresses are for editorial comment, and never should the twain meet.
But I find young lawyers have to unlearn what they have seen on TV or in movies when they learn to XX. The Tom Cruise thing seems to work on the movies, because it is written that way. The hero lawyer is using the force of his/her personality to extract answers, enhancing the hero’s hero-ocity and making it look like anyone could do it if only they had enough grit/moxie/cajones. Thus, the audience gets to identify with the hero who gets vanity buy-in.
But in real life, witnesses aren’t cowed by mere bullying, and long questions give the witness too many outs and opportunities to make counter-speeches. And of course opponents object to double barrelled questions. No person in the position of the Jack Nicholson character would ever fall for a simple minded appeal to his vanity like that, any more than the Sideshow Bob character would have fallen for Lisa’s cross-examination of him by goading him into bragging about how clever his evil scheme was.
In truth, XX is very hard because it is very counter-intuitive. It looks like a conversation to someone watching the process, but doesn’t feel like it, because you are very busy in your head listening to the answer and simultaneously structuring the next question in a form that is non-intuitive without lots of practice.
It is true that at some point, a cross-examiner has to put his client’s case squarely to the witness, but where contentious, that still has to be in bite sized pieces, one proposition at a time.
Double-cross? :eek:
XX: Cross examination
XIC: Examination in Chief.
But they do often allow seven-year-old girls to cross-examine, don’t they?
Cross-examination isn’t about tricks - it’s a combination of lots of preparation and having a clear understanding of your own case, as well as the opponent’s case. As Noel Prosequi puts it, the lawyer in cross works on building up individual propositions, point by point. One effective approach is to start asking the witness relatively non-controversial points. Normally the witness will agree with those. Then, the cross-examiner will start working towards the more controversial matters. If the groundwork has been properly laid, the witness will find that by agreeing to the non-controversial matters, he has boxed himself in - to try to disagree now means he has to disavow his earlier answers.
However, if the cross-examiner has not properly understood the case, or not properly laid the groundwork in preliminary questions, the witness will be able to respond accurately to the more controversial questions but not necessarily in the way the cross-examiner expects.
It is a duel, and it depends a great deal on the cross-examiner’s knowledge of the case and the accuracy of the cross-examiner’s understanding.
A cross- examiner who finds him/herself on the losing end of an exchange with a witness doesn’t have many “tricks”. Simply repeating the questions and trying to bully the witness into changing the answer is not at all effective - it just highlights for the court that the witness has given a damaging answer, and isn’t changing.
Sure, but if you do it right, then at the end, the witness breaks down and admits guilt!
I did it.
I KILLED her!
She wouldn’t stop talking about KENNY.
She was making my life a living hell.
So I took my knife, and I stabbed her.
Again, and AGAIN and AGAIN!!!
::Sobs::
Bricker, you have unmade me!
When I was a juror the defendant destroyed her own credibility under cross-examination. She never gave a one word answer to yes-or-no questions. She always had a story, a reason why it wasn’t her fault. Question after question, time and again. It got old fast. I don’t think the prosecuting attorney was that great, but he was good enough.
If the prosecutor had been good, he would have brought up during the trial the one item in evidence that undid the defendant’s explanations/excuses. Instead we jurors found it after a day and a half of reviewing the defendant’s check records.
In this real-life example the lawyer’s cross-examination questions were short, pointed, and built a case step by step. The defendant might have walked if she stayed off the stand.