I just flipped to ESPNews where they’re showing the OJ Simpson preliminary hearing. I’m watching the defense cross-examine prosecution witness Bruce Fromong and immediately noticed a problem that many lawyers make during cross-examination… They were asking him for information. At certain parts of the cross-examination, OJ’s defense lawyers even asked him to explain his answers. Yikes! If they liked what he had to say, they would have listed him as a defense witness. This witness doesn’t help the defense case — he’s the prosecution’s witness.
During cross-examination, the trial lawyer should not be looking for information. During cross-examination, your goal is to tell the witness information, and then have the witness agree with the statement you provide. Leading questions are the only tool that the Rules of Evidence provide to the cross-examiner to help you level the playing field. Why would you approach cross-examination with the intention of asking the witness for information? Every time that you ask the witness an open ended question, you give the witness an opportunity to repeat his version of events or explain his answer. Instead, when you look at the transcript of your cross-examination, you want the witness’s answers to simply read: “Yes,” “Yes,” “Yes…”
Remember this guideline for cross-examination: EVERY question you ask should be a leading question. If you never deviate from this rule, your cross-examinations will immediately improve.