14. CROSS-EXAMINATION
There is no area of trial advocacy more frightening then cross-examination. More law students dream of it and practioners fear it than any other area of our vocation. Few do it well and most prosecutors are even worse. When it works, people come into the courtroom to marvel and bask in the glow of a trial lawyer. There is no greater role and calling in life short of Supreme being.
Never think for one moment that the fear is not well-founded and the magnitude of the impact, on your case and pride, if you screw up. Not only can cross-examination make or sink you case, but, if you drop your pants, you will do it in the spotlight, in front of everyone and God. All will see you, they will laugh, your parents will attempt to abort you and the jury will know that you are one of the dumbest human beings to ever draw breath. The judge will snicker and your client will contemplate fecal elimination in your shoes.
However, if you are prepared, which means you have conducted proper investigation and you have written and understand your own anticipated closing argument, you are well on your way to being a deadly and positive cross-examiner. Here is the key to effective and brilliant cross-examination. Listen carefully and commit this to memory or go to medical school. If a witness for the Commonwealth does not testify to any fact which is in opposition to the substance of your intended closing, stand up and in a polite but offhanded and dismissing manner say, "No questions". A yawn might work.
If a witness does hurt you and if you have done your investigation and have an idea of where you are going in your closing, you can turn the witness or, in the very least, make his testimony less definitive. "Sir, you say you saw the robber and that this man is the person who robbed you from a distance of less than three feet and you do not remember what he was wearing or even if he was clothed"? Then SIT DOWN. End on a high point.
Never cross-examine an expert unless you are going to kill him. I mean stomp him into the dirt, wipe out his family and make him shave his head and become a monk. It is highly unlikely that an expert will destroy your case. In Virginia the ultimate issue cannot be the subject of examination. No one will say that, "In my expert opinion the defendant is guilty as hell". No one can even say, "in my expert opinion this woman was raped". See Cartera v. Commonwealth, 219 Va. 516, 248 S.E.2d 784. It is rare indeed to have a case get to trial and then find that the marijuana is really oregano and the plastic bag has "property of Domino's" affixed.
Some witnesses will have to be cross-examined. The eyewitnesses, if you are defense, or the defendant, if you are the prosecutor. Failure to cross-examine flies in the face of what good Americans expect from winners. You could do the typical ill-prepared cross-examination, that is, have the witness repeat his entire direct examination for all of the jurors who might have been contemplating something in the trial other than the person who actually saw the offense or the person who is fighting for his life. You can let the witness say AThat is the man who killed my invalid grandmother and breakdown in tears again@. Always have cross-examination and its direction anticipated for the eyewitness and the defendant should take the stand.
Some witnesses are called tar babies. This is not an ethnic term. You will surely remember Uncle Remus and his stories. Sometimes you set up a witness, you do the twenty question predicate getting ready to tear out his heart and eat it before his very eyes as he slowly loses consciousness and falls before the jury as your victim and symbol of your triumph. You hit him with your best shot and . . . stick. He is so honest, so credible, you cannot get him. You hit him again. You stick. Little old ladies and children are great examples of this type of witness. They go to prove the age old axiom that I made up a short time ago . . . You can never gut a honest and unbiased witness. Use the Tuesday scenario.