who does the defense attorney cross examine

How does a defense attorney cross-examine a witness?

The approach a defense attorney takes when cross-examining a witness is a strategical decision that is based on a number of factors. For example, if the witness is an expert witness, a defense attorney often focuses on getting the witness to admit that he/she is not 100 percent sure of the testimony just given.

What kind of questions should a defense attorney ask on cross?

On cross, the attorney should be asking questions that develop the defense's theory of the case theory of the case. Cross may be the defense's only opportunity to present important facts, inferences and impressions.

Can a lawyer make up cross-examination as they go?

There are a handful of lawyers who are so gifted, they can make up cross-examination as they go. More likely than not, you are not one of these lawyers. Usually, attorneys who “wing it” on cross-examination are ineffective – or worse – become victims of their own questions.

What is a cross examination in law?

Cross-Examination After the plaintiff's attorney completes the direct examination, the defendant's attorney gets to cross-examine the witness. Cross-examination is a fundamental right in the American system of justice. Generally, cross-examination is limited to matters covered during the direct examination.

What is cross-examination by defense?

Cross-examination is an opportunity for the defense attorney to question the prosecution's witnesses during a trial. Cross-examination is an effective way for the defense to present evidence by using government witnesses.

Who performs the cross-examination?

When the lawyer for the plaintiff or the government has finished questioning a witness, the lawyer for the defendant may then cross-examine the witness. Cross-examination is generally limited to questioning only on matters that were raised during direct examination.

Who cross examined the witness?

In civil and criminal cases, the judge has the power to summon witnesses as court witnesses and examine them. They can be cross-examined by both the parties as provided in Section 165, Evidence Act. Such cross-examination is not restricted to the points on which he has been examined by the court.

Do prosecutors cross-examine defense witnesses?

Often a prosecutor will not even know if the defense will present evidence until after the State rests. At that point, skilled and effective cross-examination of the defense witnesses becomes critical for a prosecutor. He or she will work through cross-examination of any defense witnesses with two core goals.

What is the role of Defence lawyer?

A criminal defence attorney is responsible for putting together an effective defence and developing a winning strategy for their clients. As the accused's advocate and drafter, he must prepare, file, and argue on their behalf. Negotiating a plea bargain with the prosecution is part of a lawyer's job description.

Can a defendant cross-examine a witness?

When a witness or defendant has been called to testify in court they will give their evidence 'in chief'. The opposing side then has the right to cross-examine them on their evidence.

Who examines the witness in the court?

The examination of a witness by the party who calls that witness is called the Examination-in-Chief. The examination is only confined to relevant facts and leading questions are not asked.

Can a defendant cross-examine another defendant?

A defendant may cross-examine his co-defendant who gives evidence or any of his co-defendant's witnesses if his co-defendant's interest is hostile to his own.

What is cross examining in a court trial?

Cross-examination consists in interrogating the opposing party's witness who has already testified (i.e. direct examination). It may be followed by a re-direct examination. 1. The scope of cross-examination is checking or discrediting the witness's testimony, knowledge, or credibility.

Can accused be cross-examined?

“The statement of the accused made under Section 313 CrPC can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined.

What questions Cannot be asked in cross-examination?

Section 142 does not mention asking leading questions during cross-examination. But, Section 143 states that leading questions can be asked even in cross-examination. Leading questions cannot be asked in examination-in-chief, cross-examination, or re-examination only if objected by the other party.

Is cross-examination mandatory?

The subject of cross-examination is one of vital importance in the conduct of law cases because only it has the power to sift the truth from falsehood. According to Section 137 of the Indian Evidence Act, the examination of a witness by the adverse party shall be called his cross-examination.

What is the right to cross-examine?

Generally, the right guarantees an opportunity to ask questions of government witnesses at trial. It may also preclude the introduction of written statements by the prosecution, if the defense did not cross-examine the witness at the time of the statement.

What questions can a defense attorney ask?

Generally, a defense attorney may ask questions which are relevant to facts and/or biases that relate directly to the testimony of a particular witness. In some jurisdictions cross-examination may be limited to the scope of the prosecution's direct examination.

How can a defense attorney impeach a witness?

A defense attorney can also impeach a witness through prior inconsistent statements during cross-examination. This type of impeachment simultaneously undermines the witness's credibility and establishes a question of fact for the jury. There are at least two ways of looking at prior inconsistent statements. In some cases, the lawyer will want to argue that the first statement is the most accurate of the two. In other cases, the lawyer may argue that the second statement is more reliable. In some cases, the lawyer may simply want to show that the witness is totally unreliable.

Which amendment gives the right to be confronted by witnesses?

United States - In the United States the Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him."

What is the most common method of impeaching the credibility of a witness?

The most common method of impeaching the credibility of a witness is bias, particularly when a witness has a personal relationship with the victim. Similarly, a witness who has been given a special deal by the prosecution has a strong incentive to lie.

Who conducts cross examinations?

The defendant's attorney conducts direct examination of the witnesses, and the plaintiff's attorney will conduct cross-examinations.

What does cross examination mean in court?

During cross-examination, the attorney tries to undermine or impeach the witness's credibility by showing that the witness is not reliable or that the witness may have misstated something or even lied during the direct examina tion. For example, if the witness said one thing in an accident report or during a deposition and then testified differently at trial, the defendant's attorney can refer to the previous statements and show inconsistencies in the story.

What can a lawyer ask a witness to testify about?

During direct exams, attorneys can ask witnesses to identify demonstrative evidence, such as documents and photographs and/or to explain what they saw, heard, or did in relation to the case at hand. For example, a plaintiff's attorney in a car accident personal injury lawsuit may call a bystander to testify as to what he or she saw just before, during, and/or after the accident, including what the weather was like, what happened during the accident, and any other details the witness remembers from the day.

What happens after a witness is cross-examined?

After this, the opposing attorney can conduct a final recross examination of the witness, which is limited to the subjects brought up during the redirect.

What is the purpose of a direct examination?

The purpose of a direct examination is to get the witness to testify about facts that support the plaintiff's case. Generally, a witness can't give an opinion or draw conclusions from the evidence unless that person has been qualified as an ...

How to undermine a witness's credibility?

Another way to undermine the witness's credibility is to show that the witness has a stake in the outcome of the case, which might influence the testimony.

What happens when a defendant calls witnesses?

The same procedure is followed as in the plaintiff's presentation of witnesses. The defendant's attorney conducts direct examination of the witnesses, and the plaintiff's attorney will conduct cross-examinations.

What is cross examination in court?

Cross-Examination. When the lawyer for the plaintiff or the government has finished questioning a witness, the lawyer for the defendant may then cross-examine the witness. Cross-examination is generally limited to questioning only on matters that were raised during direct examination.

What happens when a lawyer calls an adverse witness?

When a lawyer calls an adverse or hostile witness (a witness whose relationship to the lawyer’s client is such that his testimony is likely to be prejudicial) on direct examination, the lawyer can ask leading questions as on cross-examination.

What does it mean to impeach a witness?

Impeach in this sense means to question or reduce the credibility of the witness or evidence.

What is the basis of defense expert opinion?

The Basis of Defense Expert's Opinion. During cross-examination, a witness may be asked upon what authorities the opinion is based. If the expert bases his opinion on scientific works he may be cross-examined on those authorities for impeachment purposes.

What is the big picture in cross-examination?

The big picture on cross-examination of defense experts is that you must leave the fact finder with an impression that the defendant's case is weak. It is not necessary to take the expert to task on every issue. Instead, pick the points you can win handily.

What is a notice of deposition?

The notice of deposition should include a rider that requires the expert to produce their entire file, including all letters, reports, depositions, and materials they have reviewed and any notes they have generated. These documents will provide insight into an expert's thought processes.

When is the use of the deposition to impeach effective?

The use of the deposition to impeach is never as effective when the wording of the trial question is different than the wording of the question at deposition.

Do you have to ask extra questions at trial?

As a general rule, you are more likely to regret the questions you did not ask, not the extra questions you asked and do not need to use at trial. However, on rare occasions, you may refrain from a line of questioning to avoid alerting the expert to certain trial questions.

What is the art of cross examination?

The Art Of Cross-Examination. By Gerald A. Klein. While direct examination may be the hardest – and most important – part of any trial, cross-examination is usually the most fun. Unfortunately, most lawyers do not cross-examine witnesses well and forget that the purpose of cross-examination is not simply to attack an adversary, ...

How long does it take to cross-examine a witness?

The overwhelming majority of witnesses can be cross-examined in 30 minutes or less even in very complicated cases. Effective cross-examination makes a point quickly and keeps the jury engaged from the moment you ask your first question until you pass the witness for re-direct.

What happens if an attorney cannot find the point of impeachment?

Worse yet, if the attorney cannot find the point of impeachment while the jury is waiting, the attorney looks silly and the witness looks even more credible. Effective cross-examination requires the cross-examining attorney to be able to challenge an incorrect answer in a moment’s notice.

Why do you ask questions of witnesses?

Asking no questions of a witness can minimize the importance of that witness in the juror’s eyes , as you obviously did not feel the testimony was significant enough to challenge.

What happens when you ask an open ended question?

When you ask an open-ended question, or a question where you do not know what the answer will be, the witness may hit that question out of the ballpark. The only exception to asking a question where you do not know what the answer will be is where no answer could possibly help the witness.

Can a lawyer make up cross examination?

There are a handful of lawyers who are so gifted, they can make up cross-examination as they go. More likely than not, you are not one of these lawyers. Usually, attorneys who “wing it” on cross-examination are ineffective – or worse – become victims of their own questions.

Do you disappoint your jury?

Jurors have come to expect that one of the fun parts of watching a trial is watching effective cross-examination from a skilled attorney. Do not disappoint your jury.

Who has the right to cross-examine witnesses?

The defense presents evidence in the same manner as the plaintiff or state, and the plaintiff or government in return has the right to cross-examine the defense's witnesses.

Can a defense lawyer present evidence?

The defense lawyer may choose not to present evidence, in the belief that the plaintiff or government did not prove its case. Usually, however, the defense will offer evidence. In a criminal case, the witnesses presented by the defense may or may not include the defendant.

What is cross-examination in law?

On cross-examination, an attorney typically questions a witness presented by the opposing party. An opposing party’s expert witness can be expected to have offered opinions and conclusions that favor that party’s view of the case.

Why is cross-examining witnesses difficult?

The primary difficulty in cross-examining expert witnesses, however, is that the expert has far more knowledge and expertise in the technicalities of the subject matter than the attorney does. While an attorney cannot reasonably be expected to know an expert’s field as well as the expert, an attorney should know the facts of the case as well as, ...

How to show the jury that your expert has nothing to hide?

Prepare your expert to summarize their conclusions at the end of direct examination. Consider using visual aids to boost the jury’s memory of these conclusions and the key facts that led to them.

Why is an expert witness required to be recognized before they are allowed to render opinions?

Because the Federal Rules of Evidence and corresponding state rules require an expert witness to be recognized as such before they are allowed to render opinions, the organization of your direct examination is crucial.

What is the advantage of direct examination?

The advantage of direct examination is that the attorney has (hopefully) met or worked with the expert prior to trial. During this collaborative preparation, the attorney has the opportunity to explore the expert’s opinions in depth, confirm that the expert’s opinions are inline with their case theory, and help the expert witness refine their ...

Why do jurors use visual aids?

For instance, use of visual aids can help jurors remember key points. Using an expert’s visual aid during cross-examination can be particularly valuable. Imagine, for example, an expert who writes out their key findings on a whiteboard, only to face an attorney who writes out key weaknesses, exceptions and caveats on the same whiteboard as these ...

What is the purpose of a well-crafted exploration of credentials?

A well-crafted exploration of credentials, however, can help a jury appreciate or even admire an expert as one of the top minds in their field. Once the witness is qualified, direct examination should lead the judge and jury clearly through the expert’s opinions and the basis for them.

What should a defense lawyer listen to?

The defense lawyer should listen carefully to the prosecution's rebuttal evidence and object to the presentation of evidence that goes beyond that which the defense introduced in its case in chief. New issues should not be addressed during this stage of the trial.

What happens after the defense has finished presenting all if its evidence and rests its case?

After the defense has finished presenting all if its evidence and rests its case, the prosecution has the opportunity to present rebuttal evidence, although the prosecution is not required to do so. The admission of rebuttal evidence is at the discretion of the trial judge. Rebuttal evidence is limited to that which explains, refutes, ...

What happens after a direct examination of a rebuttal witness?

After the prosecution's direct examination of the rebuttal witness, the defense has the opportunity to cross examine the rebuttal witness. The prosecution will then have the opportunity to conduct a redirect examination. The defense may then have the opportunity to present a surrebuttal to counter only the prosecution's rebuttal evidence.

Can a prosecution offer new evidence on a rebuttal?

The prosecution may not offer new evidence on rebuttal unless a foundation was laid for it earlier in the trial. This is not an opportunity for the prosecution to present its entire case again. As a result, the examination of a rebuttal witness is generally short.

Can a defense present a surrebuttal?

The defense may then have the opportunity to present a surrebuttal to counter only the prosecution's rebuttal evidence . Again, the admission of surrebuttal evidence is at the discretion of the trial judge and this is not an opportunity for the defense to present its entire case again or to open the door to new issues.

Direct Examination

Cross-Examination

Challenging Witness's Credibility on Cross-Examination

Redirect and Recross Examination

Defense's Case

• Once the plaintiff's attorney has called all of the plaintiff's witnesses, the defendant's attorney begins calling witnesses. The same procedure is followed as in the plaintiff's presentation of witnesses. The defendant's attorney conducts direct examination of the witnesses, and the plaintiff's attorney will conduct cross-examinations.

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