Court Questioning Guidelines
- “Voir Dire” Examination – A witness may be examined regarding their qualifications before they are allowed to present evidence as an expert witness and permitted to give opinion testimony.
- Direct Examination – In direct examination you are questioned initially by the attorney who called you as a witness (or by the judge if not represented by an attorney). The questioning generally focuses on the areas referred to in the petition and usually includes conversations, observations and interactions with the child and family.
- Cross-Examination – At the conclusion of the direct examination, the attorneys representing the other parties may cross-examine or question you as the witness. You usually are asked to elaborate on specific incidents mentioned in you direct testimony. Keep in mind that cross-examination is designed to discover any untruths or weaknesses in testimony, and that it is the prerogative of the opposing attorney asking the questions to attempt to destroy credibility by uncovering inconsistencies.
- Rebuttal or Redirect Examination – Upon conclusion of all cross-examination the attorney who called you as the witness may ask rebuttal or redirect questions. These questions are designed to show that the apparent untruths and weaknesses discovered on cross-examination are not really damaging to the party’s case. Keep in mind that the scope of the rebuttal is limited to the subjects dealt with on cross-examination.
- Recross Examination – After rebuttal or redirect examination is completed, the opposing counsel may conduct a cross-examination, asking leading questions on subjects covered during the redirect or rebuttal examination. The questioning is then complete. Keeping in mind, however, that the judge may ask questions at any time during the process and may even interrupt during questioning by the attorney.
Cross Examination Guidelines
- Be careful about what you say and how you say it. Be deliberate.
- If an objection is made to a question being asked of you, do not answerâ€”wait until the judge makes a ruling on the objection.
- Listen carefully to the question; don’t answer it unless you understand it.
- If you do not understand a question, request that it be restated or rephrased.
- If a question has two parts requiring different answers, answer it in two parts.
- Be careful of leading questions fashioned by opposing attorney that suggest the answer.
- Keep calm. Avoid losing your temper.
- Answer positively, not doubtfully.
- Don’t close yourself off from supplying additional details.
- Don’t allow yourself to be rushed.
- Don’t get caught by a trick question.
- Don’t be put totally at ease by an attorney who seems friendly.
- Keep in mind that skilled attorneys seldom ask a question to which they do not know the answer.
- If you don’t know the answer, say so. If you don’t remember, say â€¢I don’t remember.”
- Be familiar with common tactics of cross examination and appropriate responses to those
Common Tactics of Cross-Examination
Tactic – Rapid Fire questions
- Example: One question after another with little or no time to answer.
- Purpose: To confuse the witness; an attempt to force inconsistent answers.
- Response: Take time to consider the question; be deliberate in answering; ask to have the question repeated;
- remain calm.
Tactic – Condescending Counsel
- Example: Benevolent in approach, over-sympathetic to the point of ridicule.
- Purpose: To give the impression that the witness is inept, lacks confidence or may not be a reliable witness.
- Response: Firm decisive answers; asking to have the questions repeated if improperly phrased.
Tactic – Friendly Counsel
- Example: Very courteous, polite; questions tend to take a witness into his or her confidence
- Purpose : To lull the witness into a false sense of security wherein he or she will give answers in favor of the defense.
- Response : Stay alert; bear in mind that the purpose of defense is to discredit or diminish the effect of your testimony.
- Example: Counsel, staring you in the face, shouts, “That is so, isn’t it?”Generally, rapid-fire questions will also include this approach.
- Purpose: To make the witness angry and lose sense of logic and calm.
- Response: Stay calm; speak in a deliberate voice, giving your attorney time to make appropriate objections.
Tactic – Suggestive Question
- Example: Wasn’t the mother always willing to talk?
- Purpose: To suggest an answer to the question in an attempt to confuse or lead the witness (This tactic is
- allowable on cross examination.)
- Response: Concentrate carefully on presenting the facts; disregard the suggestion and answer the question.
Tactic – Demanding a ‘Yes” or “No” answer to a question that needs explanation.
- Example: Did you form an opinion on this case without seeing the child?
- Purpose: To prevent all pertinent and mitigating details from being considered.
- Response: Explain the answer to the question. If stopped by the counsel demanding a â€œyesâ€ or â€œnoâ€ answer,
- pause until the court instructs you to answer in your own words. If you must give a â€œyesâ€ or â€œnoâ€ answer,
- expect your attorney to ask you to explain further on redirect.
Tactic – Repetitious questions
- Example: The same question asked several times but slightly rephrased.
- Purpose: To obtain inconsistent or conflicting answers from the witness.
- Response: Listen carefully to the question and state, “I have just answered that question.”
Tactic – Conflicting Answers
- Example: But, Mrs. Smith, Mrs. Brown just said, etc.
- Purpose: To show inconsistency in the investigation. This tactic is normally used on dates, times, etc
- Response: Remain calm. Conflicting statements have a tendency to make a witness extremely nervous. Be guarded in your answers on measurements, times, etc. Unless you have exact knowledge, use the term approximately. Refer to your notes, if you are permitted.
Source: Adapted from the National CASA Volunteer Training Manual