Preparing for Cross-Examination and Appellate Review (January 2003)

Material for South Carolina Bar “Annual Convention” Lecture, January 2003; published in The American Journal of Family Law, Summer 2007

Properly done, cross-examination of opposing party witnesses can be as effective a part of winning one’s case as the direct examination of one’s own witnesses. Further, issue preservation of excluded cross-examination testimony is imperative if the case has a chance of being appealed.  To effectively cross-examine witnesses and to anticipate appellate preservation issues, an attorney must anticipate and prepare for cross-examination prior to trial.

Why Cross-Examine?

Before preparing for cross-examination, it is best to think about what one hopes to accomplish via cross-examination. There are four important things one can accomplish on cross-examination: 1) establish or corroborate facts that help one’s case-in-chief; 2) limit the effectiveness of the witness’s testimony by showing the limits of the witness’s knowledge; 3) limit the effectiveness of the witness’s testimony by showing the witness is biased; and 4) limit the effectiveness of the witness’s testimony by showing the witness is lying.  These four areas of cross-examination are not mutually exclusive; however some thought should go into how to organize the cross-examination to accomplish each of these goals.

Unlike the Federal Rules of Evidence, the South Carolina Rules of Evidence allow cross-examination “on any matter relevant to any issue in the case, including credibility.” SCRE 611(b); compare FRE 611(b) (“Cross-examination should be limited to the subject matter of the direct examination and matters effecting the credibility of the witness…”) Thus, in state court, one can use cross-examination to establish facts helpful to one’s case even if the matter was not mentioned on direct examination. Testimony favorable to one’s position becomes much more powerful when it comes out of the mouths of the other side’s witnesses.  In planning cross-examination, one should anticipate whether one can obtain favorable testimony from the other side’s witnesses.

The other three areas of cross-examination are designed not to strengthen one’s case but to weaken the other side’s case by undermining the witness’s testimony. By highlighting the limits of the witness’s knowledge, one hopes to convince the factfinder to give the testimony less or no weight.  By highlighting the witness’s bias, one hopes to convince the factfinder that the “truth” of what the witness has testified to is actually closer to your client’s view of the “truth” than the witness will let on. By showing the witness is lying, one hopes to convince the factfinder to discount the witness’s testimony entirely.

Though it requires subtlety, weakening a witness’s testimony by showing the limits of the witness’s knowledge or showing bias is often more effective than attacking a witness’s credibility directly.  Attempting to paint a witness as a liar can often confuse the factfinder when part of one’s cross-examination of the witness was designed to establish favorable points for one’s case in chief.  Further, an unsuccessful (or even partially successful) attack on a witness’s truthfulness may garner sympathy for the witness while making the cross-examining attorney appear a bully.  If the opposing party’s witness can be used to successfully establish important parts of one’s case, a direct attack on credibility should be reserved for the very end of the cross-examination (to put some temporal distance between the helpful facts established and the credibility attack) and only if the evidence of lying is extremely strong.

Preparing the Cross-Examination

After determining the purpose for a witness’ cross-examination, the next step is preparation.  I like to prepare my cross-examinations in outline form so that I can add sections or questions or move items around as I think of new ideas during trial or through discussions with the witness.

It is better to outline the points one wishes to establish in cross-examination (as opposed to listing each individual question one might wish to ask). Outlining the points one wishes to establish allows one to listen to the witness’s answer (which can often provide fruitful additional areas to explore on cross-examination) rather than worrying about the next question. Further, with an outline, it is easier to keep track of the cross-examination if the witness rambles (answering many questions in one answer).  Simply check off the outline topics as the witness provides answers establishing each point.

Some witnesses may require very few questions on cross-examination.  I mostly practice family law so I handle numerous custody cases.  In defending a change of custody case, where my client has custody and I am cross-examining a witness who does not know my client, it may be sufficient to establish three simple points: 1) the child is doing well; 2) the child is in my client’s custody; and 3) the witness does not know my client.

The old Irving Younger aphorism about never asking a question on cross-examination where the answer is not known is not necessarily true. One big exception is when either answer to a yes/no question will help your case. A perfect example is in defending a custody modification case where the child is doing well in school.  If one asks the witnesses, on cross-examination, to confirm that the child is doing well in school, either answer helps. If the witness answers yes, one establishes a point helpful to the case in chief: the child is doing well in school while in one’s client’s custody.  If the witness answers no, the witness’s bias is exposed: this witness cannot even acknowledge the client’s strong points. Either answer helps.

One of the hardest tasks in cross-examination is proving that something the witness claimed happened did not actually happen.  In such circumstances it is useful to recall the Sherlock Holmes story, “Silver Blaze.”  In that story, Holmes uses the fact that the dog did not bark when the thief stole a racehorse to deduce that the dog knew the thief (and thus the burglary was an inside job). It was what the dog should have been expected to do but failed to do that was noteworthy.

From this story comes the lesson that what does not happen can be as informative as what did happen.  If what a witness is claiming happened did in fact happen, one should think about what logically should have followed from that occurrence and ask the witness if these things happened.  If a witness claims he or she saw one’s client beat the child, counsel should ask the witness if he or she called the police or DSS, took the child to the doctor, or immediately informed the other parent.  A witness’s failure to do what logically should have been done, if the witness is telling the truth, is often convincing evidence that a witness is lying.

In developing a cross-examination outline, there are numerous avenues for developing points to establish. Review the witness’s previous statements, transcripts of hearings or deposition testimony for ways of establishing points or attacking credibility.  Information in records obtained through discovery, subpoenas or Freedom of Information Act requests can provide similar avenues for lines of questions.  One must consider lines of questioning in which either answer to a yes/no question will be helpful. Finally, one should consider whether this witness will be useful for introducing evidence.

There are a few simple rules in organizing the cross-examination.  Begin and end with strong points (especially strong points that do not raise troubling evidentiary issues).  If you are trying to show the witness is a habitual liar, do so long after you have established the points helpful to your case-in-chief. Add brief, introductory questions when changing topics so the factfinder can follow the line of questioning.  Within this framework, try to organize the cross-examination so it flows in a logical fashion.

In drafting the outline, it is useful to cross reference any exhibit you might have at your disposal should the answer one receives not be the answer one expects.  If particular questions will be asked of a witness because of what that witness wrote in a June 14, 2002 letter, put “June 14, 2002 letter” at the end of the outline topic.  That way, if an unexpected answer is given, the answer can be impeached without fumbling around. Cross referencing the exhibits to be admitted through this witness is also helpful. “EXHIBIT, June 14, 2002 letter” is a reminder that this is the point in the cross-examination to identify and admit that letter.

It is also useful to cross reference the applicable evidentiary rule relied upon (and any case on point) if an objection to the question is anticipated. Listing “803(2) Excited Utterance” at the end of the outline topic allows one to respond quickly if a hearsay objection is likely to be raised and the basis for admitting the answer is the excited utterance exception to the hearsay rule.

Appellate Preservation

Many cross-examination outlines will have topics that one hopes to address, where it can be anticipated that the court might not allow the evidence in due to evidentiary rules. If the trial court refuses to allow relevant evidence in, it can be a basis for obtaining a new trial if the factfinder finds against the client. However, to use the lower court’s error as a basis for a new trial, one needs to preserve three things on the lower court record: 1) the court was provided the reason the requested testimony or evidence was proper; 2) the proposed testimony or evidence was proffered; and 3) the client was prejudiced from the failure to allow the evidence or testimony. Rule 103(a), SCRE, notes these three requirements:

(a) Effect of Erroneous Ruling.  Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and…

(2) Offer of Proof.  In case the ruling is one excluding evidence, the substance of the evidence and the specific evidentiary basis supporting admission were made known to the court by offer or were apparent from the context.

To establish these requirements, the practitioner should do the following if the court excludes a line of questioning or an exhibit: 1) state clearly each basis upon which excluded evidence is admissible; 2) state clearly the relevance of the excluded evidence (thus establishing prejudice). Finally, the practitioner needs to make an offer of proof. The offer of proof can either be the attorney’s recitation of the proffered testimony, or questioning the witness on the excluded information outside the presence of the jury. See Rule 103(b & c), SCRE (the court may direct the making of an offer in question and answer form, but it should not be done in the hearing of the jury). In the absence of an adequate proffer before the trial court, an alleged erroneous exclusion of evidence is no basis, on appeal, for establishing the necessary prejudice.  See, Greenville Memorial Auditorium v. Martin, 301 S.C. 242, 291 S.E.2d 546 (1990).

The exclusion of admissible evidence can be a basis for a new trial. North Greenville College v. Sherman Const. Co., Inc., 270 S.C. 553, 243 S.E.2d 441 (1978). By anticipating where the court might improperly exclude such cross-examination evidence, the practitioner can be prepared to preserve the record for appealable errors and possible new trial.