Cross-Examination: Don't Ask One Question Too Many (Podcast)

Dan Small: The ninth commandment of cross-examination, according to the late, great Irving Younger, is don't ask one question too many. That's a pretty common problem, unfortunately. A lawyer gets up to cross-examine – their big moment – building a series of facts that they believe is helpful. Then they ask one last question intended to be the triumphant capstone of this line of inquiry. Although this often works on TV, surprise-surprise, this is not TV. In real life, questions like that usually just don't work.

Let's suppose a criminal case involves an attack at night, and the issue is whether the victim can identify the attacker. You're the defense attorney, and you ask a series of really good, basic building block questions.

"You were attacked on a country road?"

"Yes."

"The attack occurred after midnight?"

"Yes."

"There was no moon?"

"That's right."

"The nearest light was 100 yards away?"

"Yeah, that's right."

Note, by the way, these short, simple questions: brick by brick, step by step, building that wall around the witness. And so you keep going.

"There were no other lights in the area, were there?"

"That's right."

"The first thing that happened in the attack was that your glasses were knocked off?"

"Yes, they were."

"And the whole episode took maybe two or three seconds?"

"That's right."

A smart lawyer obeying the ninth commandment stops there. You have plenty to work with. What happens if you don't stop trying to ask that one final capstone question?

"So, you couldn't really see your attacker, could you?"

What happens is you get this kind of answer:

"Well, I could see him well enough to identify him. There's no doubt in my mind he's the right guy. I got a good look at him, and believe you me, I will never forget the look on his face."

Not exactly the answer you wanted. Witnesses generally will not agree to broad conclusions that make them look foolish or wrong. It just won't happen. Some witnesses are looking for opportunities to hurt your case. Don't ask that last capstone question. It won't work as a means of eliciting evidence, and it's not a good time to argue your case because the witness can talk back. Worse, as a practical matter, it may wreck your entire building block cross-examination.

The "one question too many" is not always that obvious. It can be more subtle or incremental. But if it's a bridge too far, don't take it. You build across, piece by piece, brick by brick. But just like building a wall, one brick too many or one brick in the wrong place can topple the whole thing. So know when to stop and know when to sit down. Don't ask one question too many. Save your arguments for the end of the trial.