The Difference Between Direct Examination and Cross-Examination
Many people find the procedure of a legal trial confusing. One of the most common questions that people ask concerns the direct examination versus cross-examination of witnesses. While direct examination and cross-examination both involve the questioning of witnesses, the difference between the two types of examination is their purpose. The rules for how a witness may be questioned also differ greatly in direct examination vs cross-examination.
During a civil or criminal trial, the plaintiff or prosecution must prove their case by the testimony of witnesses and the submission of evidence. The defendant must then show the flaws in the plaintiff’s or prosecution’s case by contradicting or minimizing the testimony and evidence presented and by offering his or her own testimony and evidence.
Read on to learn more about the differences between the two types of examination and when a lawyer should use direct examination or cross-examination in a trial.
What Are Direct and Cross-Examinations?
These are common cross and direct examination sample questions. Direct examination occurs when either party calls a witness to the stand to give testimony. Usually, witnesses on direct examination are called to voluntarily provide statements in favor of the party that calls the witness. However, there are occasions when a witness called on direct examination does not voluntarily provide supporting testimony.
To define cross-examination, it is necessary to emphasize that it occurs when the opposing party’s attorney questions the witness called by the other party. On cross-examination, the goal is to discredit the witness or otherwise cause doubt about the witness’s testimony.
Use of Witness Examination By Prosecution and Defense
The prosecution or plaintiff in a trial is required to prove the elements required by law to show that the defendant is responsible for the crime, act, or damages for which they are accused. If the plaintiff or prosecution offers evidence to prove their case, then the defendant will need to show why that evidence is not correct or is flawed in some way.
The most common way for both parties to offer evidence to the court is through witness statements. When one party’s attorney calls a witness to give testimony, the calling attorney will conduct a direct examination of that witness. When the attorney from the other side asks that witness questions, that lawyer is conducting a cross-examination.
At trial, the plaintiff or prosecution will call a witness and conduct a direct examination. Almost always, the defense attorney will conduct a cross-examination of the plaintiff’s witness. In most trials, the defense will call its own witnesses and will conduct a direct examination, and the prosecution will usually conduct a cross-examination of the witnesses for the defense.
When conducting a direct examination, an attorney is not permitted to ask the witness leading questions. A leading question is a question that suggests the answer to the question. For example, “You got home at 8:00 p.m., correct?” Instead, the attorney who calls the witness would need to ask the question differently. Using the same example, the attorney would ask this non-leading question, “What time did you get home that night?”
When conducting a cross-examination, a lawyer is questioning a witness called by the opposing party. Leading questions are permitted during cross-examination. In unusual cases, an attorney who calls a witness on direct examination may be able to have the witness qualified as a hostile witness. If a witness is considered a hostile witness, the attorney will then be permitted to use leading questions.
What is a hostile witness?
A hostile witness is a witness who has been called by an attorney to give testimony but who is reluctant or uncooperative. A hostile witness is sometimes referred to as an adverse or unfavorable witness. This is someone who, although the attorney has called him or her to testify, does not willingly provide testimony that will help the attorney’s case.
Example of hostile witness
There are many times when a witness who does not want to do so is called by a party to provide testimony favorable to that party. Consider, for example, a case of two sisters who had been out drinking together one night. If the two were driving home and were involved in an accident, the sister driving the car may be charged with a DUI. If the sister who was driving the car, now the defendant in the case, denied that she had been drinking, the prosecutor may want to call the other sister to testify about the events leading up to the accident.
As an attorney, it is up to you to do everything you can to solidify your case and in some cases, figuratively, that means proving a w...
In this situation, the sister, who was a passenger in the vehicle, may not want to testify because telling the truth would help prove the prosecutor’s case against her sister. The prosecutor could, however, call this witness and ask that the court allow her to be treated as a hostile witness. If the prosecutor is allowed to treat her as a hostile witness, the lawyer could ask the sister leading questions, such as, “Your sister had been drinking alcohol on the night of the accident, correct?” The sister would then be required to answer, under penalty of perjury, “yes” or “no.”
What Is Direct Examination?
Direct examination is the examination of a witness by the attorney that called the witness to the stand. The purpose of direct examination is to have the witness provide testimony that is favorable to that attorney’s case. Normally, the witnesses called on direct examination will voluntarily give testimony in favor of the party who calls them.
What happens during direct examination?
During direct examination, a witness is questioned by the attorney who called them. In most cases, the attorney will have prepared the witness ahead of time by going over the questions he or she plans to ask. This is important because the attorney calling the witness cannot suggest the answers to the questions at trial. The witness will need to have considered the questions and responses prior to being questioned at trial.
To help the witness provide the testimony that best supports the case, the attorney will usually ask open-ended questions that allow the witness to explain in detail an answer that the attorney has already reviewed with the witness. The following are sample direct examination questions:
- Who did you see at the restaurant?
- What happened?
- When were you there?
- Where did you go?
- Why did you go there?
- How did you get there?
The attorney will want to have reviewed the witness’s answers during trial preparation to help the witness understand the most crucial parts of his or her testimony. This helps to ensure that the witness will deliver the testimony that the attorney is counting on during the trial.
Tips for carrying out direct examination
Having a successful trial depends on many factors. An attorney must develop a plan for the direct examination of each witness according to the laws of procedure for the trial court’s jurisdiction. One of the most crucial factors is for the witnesses to appear credible and trustworthy to the judge and jury. The following tips can help ensure a successful direct examination:
- Meet with witnesses well in advance of the trial to understand what their testimonies can contribute to your case.
- Decide exactly the purpose of each witness’s testimony.
- Explain the theory of your case to each witness to give an idea of how his or her testimony fits into the case you are presenting.
- Make sure your witness understands exactly what they need to tell the judge or jurors and have them practice their statements.
- Be sure that your witness understands the importance of being completely truthful.
- Explain to your witness that you cannot ask a leading question, so it will be up to the witness to understand which questions to expand upon when asked.
- Ask your witness to dress nicely and behave respectfully.
- Instruct your witness to be calm and confident and to look directly at the judge—if it is a bench trial or if the judge asks a question—or the jurors—if it is a jury trial—when making his or her statement.
- Provide any other advice specific to your case.
What Is Indirect Examination?
During direct examination, the laws of procedure require a lawyer to lay a foundation for his or her questions. Remember, however, that leading questions are not normally allowed on direct examination. A useful tool in laying a foundation during direct examination is to conduct an indirect examination prior to asking direct questions. An indirect examination involves asking questions in a more formal way than direct questions. An example of an indirect question is:
- Do you know who was driving the car?
That indirect question would allow the witness to say “yes” or “no.” If the witness says yes, then the lawyer has laid a foundation to ask the more direct question:
- Who was driving the car?
Indirect questions also allow a witness on direct examination to expand upon the yes or no answer and better tell his or her story.
What Is Cross-Examination?
Cross-examination is when the opposing party questions a witness. To define cross-examination, it is necessary to consider its purpose. The purpose of cross-examination is to ask questions that cause doubt about the other side’s case by pointing out flaws and inconsistencies in the witness’s testimony.
Because a witness on cross-examination is usually there to provide help and support to the other side, a cross-examination can be confrontational.
What happens during cross-examination?
Once a witness has provided testimony on direct examination by the attorney who called the witness, opposing counsel will want to ask their own questions of that witness during cross-examination. The attorney will try to discredit the witness, the witness’s testimony, and the opposing party’s case.
Unlike direct examination, the attorney performing cross-examination does not want the witness to expand upon his or her testimony. Instead, the attorney will want to ask yes or no questions that cast doubt on the earlier statements.
Again, leading questions are permitted on cross-examination. Instead of asking open-ended questions, the attorney will often make a statement that would be favorable to his case and then ask, “Isn’t that correct?” The attorney may also ask very direct questions that require a “yes” or “no” answer.
Tips for carrying out cross-examination
Good cross-examination skills are vital to a successful trial outcome. An attorney must be familiar with the laws and rules of procedure for the court’s jurisdiction. Some tips for ensuring a positive outcome for your case include the following:
- Be prepared;
- Know the answers to all questions you ask;
- Take the deposition of the witness well in advance of trial, and know the weaknesses of the witness’s testimony ahead of time;
- Be prepared with questions that require “yes” or “no” answers that support your case;
- Keep control of the witness by asking only direct questions. Do not ask any open-ended questions; and
- Remain calm and respectful when conducting cross-examination.
Why Use Leading Questions?
Leading questions are necessary for two situations:
- During cross-examination; and
- With a hostile witness.
During cross-examination, a lawyer wants to keep control of the testimony elicited from the witness. Be sure to know the answer to each question you ask and ask “yes” or “no” answer questions as often as possible. This usually means asking a leading question.
When a hostile witness is reluctant to cooperate and provide testimony, attorneys are permitted to ask leading questions. Asking leading questions that leave the witness few options for answering is key when dealing with a hostile witness.
Good trial preparation is key to a successful outcome for either party. It is important to understand when and how to use direct examination versus cross-examination and when a witness can be treated as a hostile witness. Direct examination and cross-examination both consist of questioning a witness. However, how the questioning is done and the goals of each are very different.
An interesting & very useful legal newsletter
Frequently Asked Questions
Are witnesses required to provide testimony at trial?
If a person is served with a valid subpoena to appear and give testimony at trial, then he or she is required by law to do so. Failure to comply with the subpoena could result in the person being held in contempt of court and punished by fines, jail time, or both.
What happens when direct examination is complete?
After the direct examination is complete, the other side has the chance to question the witness by cross-examination.
What happens after cross-examination is complete?
After cross-examination is over, the attorney who called the witness to the stand will have a chance to follow up with questions about any points already covered by that attorney as well as any new testimony that came up during cross-examination. This phase of questioning is called re-direct examination.