1.“ No Questions, Your Honor...”
I begin with the threshold question: Should you even cross the witness?
Irving Younger maintains that if the witness hasn’ t hurt you, simply waive cross with“ the face of a Christian in a poker game holding four aces.” The decision turns on risk versus reward. You do not have to cross-examine every witness, particularly if you are more likely to hurt your case than help it. The real criterion is simple: Do the potential benefits outweigh the risks?
You must quickly assess:
• How badly has the witness damaged your case?
• Will the jury perceive a failure to cross as weakness?
• Does the witness have favorable testimony to give?
• Is this the only source for that information?
• Did the witness appear credible— and can you realistically dent that credibility?
• Do you have impeachment material?
• Is it better to confront the witness or introduce that material later?
• Can you show important facts were misstated or taken out of context?
• How will the witness react under pressure?
• Can you minimize the testimony by waiving cross?
48 The Trial Lawyer
Sometimes you must make this decision in the seconds it takes you to rise from your chair.
Judge Herbert Stern famously wrote,“ More crossexaminations are suicidal than homicidal.” Yet he advised never to waive cross in a triable case. If your adversary has called a witness on the merits, there is something to do. Perhaps you cannot impeach, but you may blunt. You may limit. You may hitchhike. And if the witness truly offers nothing, then perhaps you have bigger problems.
Increasingly, trial teachers suggest at least some cross is expected. I’ m comfortable with no cross. Silence can speak loudly.
2. Constructive Cross( Hitchhiking)
Most lawyers first think of cross as destructive— impeachment. Fair enough. But constructive cross is often undervalued and overlooked.
Constructive cross extracts favorable concessions from the opposing witness. It is“ hitchhiking.” And it is an invaluable tool. Use it early. Once you become hostile, witnesses harden. So before you attack, ask:
• What parts of the direct examination helped me?
• What in my case can this witness corroborate?
• What must this witness admit?
• What should the witness concede under the rule of probabilities?
Mauet suggests that if you secure meaningful admissions, you may want to omit later destructive cross because jurors may