Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.


Here are ten rules for cross-examination every attorney should know:

  1. Consider whether to cross-examine at all. Has the witness testified to anything that injures your case?
  2. Keep it short and simple. Use short, simple, leading questions with four to six words (if possible). Convoluted questions may lead the jury to conclude you are trying to confuse witnesses rather than get to the true facts. A long cross-examination may endow the witness’s testimony with undue significance.
  3. Know when to quit. When a question elicits a helpful answer, don’t elaborate: The witness will likely use related questions to try to explain away the earlier answer. Once you have impeached the witness and gained a major advantage, stop and sit down.
  4. Control your demeanor. When you speak pleasantly and frankly, show confidence, refrain from acting surprised, and stay focused, you project credibility.
  5. Only ask questions that help you. Never ask a question on cross-examination unless (1) you know what the answer will be, and (2) the answer aids your side of the case.
  6. Avoid open-ended questions (such as “Why?”). Open-ended questions give the witness too much latitude to answer. They are particularly harmful when asked of an expert witness.
  7. Make good use of deposition answers (civil cases) and witness statements, sworn or unsworn (criminal cases). If the statement furthers your position, ask the question again on cross-examination.  If you get the same answer, then favorable information is before the jury; if it differs, then you can impeach the witness.
  8. Impeachment: As a general rule, only impeach on major points. Foreclose all explanations that the witness might give before confronting with the main point or impeaching material. Simplicity is the essence of good impeachment. Breaking the questions to their smallest parts will often increase your chances of success and add to the dramatic flow. Impeach with a prior inconsistent statement only when the chances of success are good.
  9. Get the court’s help with a recalcitrant witness. Each time the witness gives an evasive answer, politely ask the court to instruct the witness to answer the question. Each time the witness’s answer goes beyond the scope of the question, ask the court to strike the offending portion of the answer and to instruct the jury to disregard it.
  10. Don’t annoy the jury: Avoid verbal tics. Keep in mind the jury often focuses more on counsel than the witness. Counsel’s tics may include saying “okay” or “all right” after every answer and before every question, or beginning every question the same way, e.g., “Now let me ask you this … .” Both new lawyers and old war horses develop these tics. Spot them and stop them!

Judge Alan Pendleton

10th Judicial District




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