Cross-examination is the foundation of the adversarial trial process. It allows us to challenge a witness’ reliability and credibility. But there are also limits; the questions must be relevant and material to the facts of the case. Sounds simple enough in theory, right? Unfortunately, it’s not that easy in practice. To begin explaining how complex cross-examination is, I’m going to use an example to help you visualize the worst type of person up on the stand. Imagine someone like Homelander sitting in court being cross-examined by you, a newbie. Why Homelander? Well, he’s the perfect example of a difficult and a hostile character - not to mention, one of the most unhinged villains on TV. Someone of his character would give the cross-examiner a hard time. You’re trying to explore evidence, expose weaknesses, biases, lies and any contradiction to help your client. By pointing out gaps in someone's story, you’re demonstrating that their version of events is implausible. Another level of difficulty is the uncertainty that comes with a hostile witness. In this example, is Homelander likely to tell you the truth? Keep quiet? Shoot lasers at you? Reality is that we don’t know! We can try to predict which trajectory a witness may go but they could also say something that we did not factor in. This is why your questions need to be tight. There will always be one witness or accused that will try to make themselves sound better at every turn; this may be through victimization, narcissistic tendencies, or gaslighting. (See example 1) Example 1: Homelander’s narcissistic beliefs. As the cross-examiner you need to remain in control and keep your questions tight. If you hear something that doesn't make sense you need to dig in “Deep” until the truth comes out - real fans of the show will get that reference. If we were to cross-examine someone like Homelander, the goal would be to reduce their credibility or reliability; this could be pointing out a lie, a contradiction in their direct examination or using an inconsistent prior statement to impeach them. But for someone like Homelander let’s be real he’d probably start screaming “I'm Stronger. I'm Smarter. I'm Better. I Am Better!” in front of the jury. It didn’t stop him before!
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ELISHA FRANCISArchives
September 2024
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