Lawyers in both civil and criminal trials use direct and cross examination. This column uses the criminal trial as an example of how direct and cross examination of witnesses are conducted.
Q: What is “direct examination”?
A: In “direct examination,” an attorney questions a witness to get the witness’s account (“testimony”) of what happened during the event that triggered the trial. There is a lawyer who represents the defendant (the person accused of the alleged crime), and a lawyer for the prosecution, representing “the people” whose law the defendant has been accused of breaking. Both lawyers will conduct direct examinations of the witnesses they call to testify, and both will conduct these examinations to develop the facts (that is, what the witness observed that is relevant to the issues at trial). The lawyers expect that the witness’s testimony will support their clients’ views of what happened. In fact, the only purpose of direct examination is to present to the jury evidence that supports each lawyer’s theory of a case. During direct examination, the lawyer questions a witness to get information before the jury that the lawyer expects will persuade the jury that the facts related by the witness are true, and that the jury should accept and believe them.
Q: How does a lawyer conduct a direct examination?
A: Often, the lawyer will begin by asking background questions to introduce the witness as a person who has many of the same personal characteristics that the jurors themselves possess. The lawyer does this based on the theory that jurors are be more likely to believe people they perceive are more like themselves. The lawyer’s use of background questions may also help the witness to become more comfortable (and perhaps more persuasive) while on the witness stand.
After establishing the witnesses’ background, the lawyer usually sets the scene for the witness’s factual testimony. This shows the jury that the witness has personal knowledge from having observed or participated in the events in question. It also allows jurors to visualize the events as the testimony proceeds.
The lawyer usually will ask the witness open-ended questions, so that the witness can testify fully about the topic in his or her own words. The jury may be more likely to accept information that comes directly from the witness rather than something suggested by the lawyer.
The lawyer’s goal in conducting a direct examination is to leave jury members with the impression that they are listening to an interesting conversation between two people (questioning lawyer and answering witness) about a subject critical to proving the lawyer’s side of the case. When done effectively, the lawyer is using the witness to tell part of a story to a jury in a manner advantageous to the lawyer’s theory of his or her case.
Q: What is cross examination?
A: After each witness has been questioned during direct examination, the lawyer for each side has the chance to question the other side’s witnesses. This is called “cross examination.” The lawyer’s purpose in conducting this questioning is to make his/her own side’s case look better and to make his/her opponent’s case look worse.
The first purpose of cross examination is to ask questions designed to get answers that will build up the credibility of the questioner’s own witnesses. To do this, the lawyer carefully controls the witness by using “closed” questions (for example, questions that can only be answered “yes” or “no,”). In direct examination, the lawyer is not allowed to ask “leading” questions (such as, “The car was speeding down the highway, wasn’t it?”). If the lawyer asks a leading question in a direct examination, the other side likely will object and the judge will likely uphold the objection. However, in cross examination, the lawyer not only can, but should use leading questions. The speeding car question, which is inappropriate on direct examination, is appropriate on cross-examination. When cross examination is executed properly, the lawyer will make statements or assertions that only allow the witness to respond with “yes” or “no.” A second equally important purpose of cross examination is to impeach or undermine the witness’s credibility or testimony so that the jury will no longer believe in or rely on that testimony.
Q: Why do lawyers use direct and cross examination to challenge the other side?
A: Lawyers do not use examination and cross examination to make people “look bad.” Rather, their aim is to fully and fairly represent their respective clients so that the judge and/or jury can get to the bottom of what actually happened and determine who should be held responsible. In our adversarial system of justice, the idea is that, when the lawyers on both sides of a matter are allowed to vigorously represent their clients’ interests, the facts will come out and the jury will be able to determine the truth of the situation.
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by David C. Winters, an attorney in the Columbus office of James E. Arnold & Associates, LPA.