Vol. 77, No. 7, July
Cross-examination Without Discovery: Part 3
There are many situations in which attorneys must cross-examine a
witness without the benefit of discovery. In this third article of a
three-part series, read how to employ the techniques covered in the
first two articles to actually conduct cross-examination absent
by Larry Pozner & Roger
In Wisconsin we generally think of trials taking place after
extensive discovery, including depositions. In practice, however, there
are many circumstances in which attorneys will need to cross-examine
witnesses without having had the opportunity to depose them first. In
virtually all criminal trials, attorneys confront witnesses without the
benefit of a deposition. This often is true in juvenile and civil
commitment cases with strict timelines and in other cases, like small
claims, that frequently are litigated on limited budgets for lesser
amounts of damages. In these circumstances, a lawyer's ability to
cross-examine well without the benefit of a prior deposition often is
critical to success in the action.
In this third article in a three-part series, excerpted from Chapter
31 of their book Cross-Examination: Science and Technique
(Lexis Law Publishing), Larry Pozner and Roger Dodd lay out some
techniques for conducting the cross-examination absent discovery. Parts
1 and 2 of the series appear, respectively, in the May
2004 issues of Wisconsin Lawyer.1
Sequencing the Cross-examination
Safety and Control. Of all the benefits and reasons
for sequencing chapters of cross-examination, the most important
guideline with the "no discovery" witness is to keep control of the
witness on cross-examination.2 Of course,
the absence of pre-trial discovery tends to lessen counsel's ability to
control the witness. The beginning of the cross-examination is more
important than usual in that a lawyer's cross-examination of "no
discovery" witnesses will tend to be shorter, and the witness will be
more able to evade. Consequently, with the "no discovery" witness it is
crucial that counsel begin the cross-examination with a "control"
chapter.3 If the cross-examiner has solid
chapters on motive, interest, or bias, she should lean toward using them
at the start of the cross-examination. There is a safe sequence for the
"no discovery" witness. The sequence is based primarily on control of
the witness and safety for the cross-examiner. Because this is the focus
of the sequencing, the cross-examiner's confidence will build as the
cross-examination goes on. The witness's confidence will recede for the
same reasons that the cross-examiner's confidence will rise.
Another way to look at this sequencing of the cross-examination is
that the cross-examiner is going to start with safety. The
cross-examiner prioritizes what will help the cross-examiner's theory of
the case and what will hurt the opponent's theory of the case. All else
is eliminated. What is left is what is safest. What is safest is where
to begin. It may well be that by doing these safe and productive
chapters the witness will offer up answers that help in other targeted
areas: bias, assistance to the cross-examiner's theory, harm to the
opponent's theory, marginalization, or credibility. So much the better.
The hastily planned and safe cross-examination has yielded more safe
material - only now it is the opponent witness who is forced to work
What Has Hurt the Opponent's Theory. If no motive or
credibility chapters are available to the cross-examiner, or when these
chapters are exhausted, she can turn to chapters that build on aspects
of the direct examination that hurt the opponent's theory of the case.
Counsel has used the available motive, interest, and bias material;
developed the material that helps her theory or bolsters her witnesses;
and exploited the testimony that hurts the opponent's theory. Now the
cross-examiner can consider chapters that marginalize the witness.
Finally, the cross-examiner can use general credibility attacks that
show inconsistencies between this witness and every other witness,
inconsistencies with common sense or with documents, or internal
inconsistencies in the testimony.
The cross-examiner is never restricted to only those questions to
which she knows the answers. The cross-examiner may ask with confidence
and with safety all leading questions (facts) that logically flow from
testimony the witness gives. As an example, the witness has testified on
direct examination that he saw the defendant at the crime scene; then,
the cross-examiner can logically infer that the witness saw the crime
scene and its contents. The cross-examiner can logically infer that the
witness then had the ability to see the details surrounding the crime
scene. Undeniably, the witness can testify that he did not see other
things, but the less the witness recalls of the scene, the less the jury
will credit the original testimony. But what if the witness denies the
leading questions that logically flow from the facts stated on direct
examination? In that event, the cross-examiner will still have a good
cross-examination chapter. Imagine a witness who says he saw only one
fact but none of the related facts. Such testimony is inherently weak.
Testimony that can be shown to be illogical loses its credibility.
Just as admitted facts logically flow to other facts that should be
admitted, certain emotions logically flow from facts. When the admitted
facts logically would produce a particular emotional, physical, or
behavioral reaction in most people, the witness can safely be asked a
leading question that suggests he experienced that emotion, had that
physical reaction, or engaged in that appropriate responsive behavior.
Show the witness the facts that ordinarily would produce surprise and
the witness should admit being surprised. Show the witness a factual
setting in which the normal person would inform his or her supervisor,
and the witness can safely be asked the leading question, "You told your
supervisor?" Certainly, the witness can deny the leading question, but
in so doing, loses credibility. The technique of cross-examining from
the known fact to the logical but unsourced or undiscovered fact is
useful, easy, and safe. It is one of the foundations of
cross-examination of the "no discovery" witness.
This logic-based cross-examination opens up broad factual areas in
which to cross-examine logically and consistently with the
cross-examiner's theory of the case based on fleeting direct testimony
Example: The "no discovery" witness (police officer) has
testified on direct examination that he arrived at the scene of a
collision moments after the cars had collided. The collision resulted in
a vehicular homicide prosecution. The witness has testified that the
defendant was being taken out of his vehicle, and that he observed the
defendant to be unsteady on his feet, to be nearly hysterical, and that
other on-scene persons had to verbally insist that the defendant not
walk away from the scene of the collision.
Because the witness was at the scene and made the observations
concerning the defendant, the witness can be cross-examined successfully
and safely on areas that are consistent with the defense theory of the
case. The following chapters suggest themselves. The witness should
- it was dark;
- it was raining;
- there was no lighting at this particular intersection;
- the cars were terribly mangled;
- there was tremendous damage to the deceased's vehicle;
- he would be able to identify the tremendous damage to the deceased's
- the defendant also was in that same collision and his car also was
- the windshield of defendant's car was shattered;
- it appeared as if defendant had hit his head against the
- a head injury to the defendant was completely consistent with the
amount of damage done to his vehicle;
- defendant's hysterical behavior was consistent with head
- defendant's loud boisterous conduct was consistent with head
- defendant's being "unsteady" on his feet was consistent with head
- defendant's disorientation was consistent with head injuries.
All of these facts are consistent with the defendant's theory of the
case. It is true that the witness could refuse to acknowledge any or all
conduct resulting from head injuries by saying: "I don't know." Is that
really a downside risk to the cross-examiner? The fact finder could
accept these responses as illogical or likely untruthful. On the other
hand, the cross-examiner could become more aggressive. She could attack
the illogical lack of information more aggressively.4 Which way the cross-examiner chooses to go is a
courtroom judgment. However, because of the rule of logic, the material
available to the cross-examiner greatly expands.
Direct Examination Chapters Can Be Used for Cross-examination
If the trial lawyer has prepared chapters for the direct examination
of her witnesses, those same chapters can be pressed into service as
cross-examination materials. When analyzing the direct testimony of this
"no discovery" witness, the cross-examiner has at her disposal all of
those chapters prepared for her direct examination of her own witnesses.
Those chapters can be used to take on the witness with chapters
consistent or at least congruent with the cross-examiner's theory of the
case. The technique is to listen for testimony that bolsters or agrees
with testimony she will advance. She can then use her chapters to show
that, in several respects, the opponent's witness supports her theory of
Roger Dodd practices
law in Valdosta, Ga., and is board certified in both civil and criminal
law by the National Board of Trial Advocacy. His practice includes
criminal defense, family law, plaintiff's personal injury, and wrongful
death cases, and representation of both plaintiffs and defendants in
medical malpractice claims. He is a fellow of the American Academy of
Matrimonial Lawyers and is listed in the Best Lawyers in America.
Larry Pozner is past
president of the National Association of Criminal Defense Lawyers. His
Denver, Colo., law practice includes criminal defense and complex civil
litigation. He is listed in the Best Lawyers in America. As a frequent
commentator on legal issues, Pozner has appeared on the "NBC Nightly
News," the "NBC Today Show," CNN, "Meet the Press," Court TV, and the
"Jim Lehrer News Hour."
This article is excerpted from Chapter 31 of Cross-Examination:
Science and Technique by Larry Pozner and Roger Dodd (Lexis Law
Publishing). Due to space, the material has been heavily edited. This
series will conclude in July with Part 3.
What the cross-examiner has prepared for one witness (even her own on
direct examination) gives aid to her cross-examination. Her first
technique is to use what has been prepared for a different witness.
Those chapters designed to be effective with the general species of
witness, whether on direct or cross-examination, serve as a basis - a
starting point with which to actively listen to the direct examination.
The cross-examiner is gauging which of her chapters will work, and which
can be quickly adapted.
Building Cross-examination on Consistencies, Inconsistencies, and
Whether the witness is a discovery or a "no discovery" witness,
immediately upon hearing the direct testimony, the cross-examiner
customarily recognizes how the direct examination of the witness fits
into the context of testimony of other witnesses already heard by the
fact finder, or to be heard by the fact finder. The cross-examiner also
will be able to recognize how the testimony fits with the documents and
demonstrative evidence. The fact that this witness was unexpected does
not deter the cross-examiner from using those same factors to her
advantage with this "no discovery" witness.
A witness also may offer direct examination testimony that is
internally inconsistent with some other portion of his or her own
testimony. This is always a worthy subject for cross-examination.
Counsel must avoid the temptation to ask the witness to explain the
reasons for the internal inconsistency. Instead, separately and
independently establish each fact and allow the fact finder to hear the
contradiction. Of the two points in contradiction, the better technique
is to firmly establish the weaker or more changeable testimony first,
then follow up with the stronger or less changeable but contradicting
testimony. In this way, the witness is less able to alter or amend his
testimony when confronted with the inconsistencies. In other words,
firmly lock in the point the witness is most capable of changing, then
reintroduce the testimony that was already completely established.
Using the Witness to Bolster the Cross-examiner's Witnesses or
Showing the consistency of this witness with helpful testimony that
the cross-examiner intends to elicit during direct or other
cross-examinations has the natural consequence of aligning this witness
with the cross-examiner's theory of the case. The technique is to find
items of importance within the direct testimony or within the logical
cross-examinations, and to tie them to the cross-examiner's case.
Inasmuch as the jury or judge has had the benefit of the lawyer's
opening statement, the leading question will communicate that this
testimony is a helpful admission by the witness. As the cross-examiner
spots these helpful areas, she can cross-examine at greater length
because she is in a safe area.
Showing contradictions with the testimony of the opponent's other
witnesses has a favorable impact on the fact finder, while
simultaneously discourages the opposing lawyer from calling more
Remember, the witness has gone through no discovery process and as a
result is far less able to appreciate the case's subtleties. The witness
is likely to testify with as much certainty on facts that help the
cross-examiner's theory as on facts that helped the opponent. The
witness simply does not recognize the danger. The cross-examiner can
often find in the direct examination some testimony that contradicts
other witnesses called by the opponent. Counsel has only to put the two
witnesses' versions in opposition. As the witness discusses the fact in
detail, the witness simultaneously damages the other witness, often with
no recognition that this is happening.
The opposing lawyer knows this witness has been pulled out of the "no
discovery" bag. If the cross-examiner can handle this witness
effectively or even adequately, a warning has been delivered to the
opponent for all other "no discovery" witnesses the opponent is
When the lawyer has pre-trial discovery of inconsistent statements,
she can plan her impeachment as part of a scripted cross-examination.
That pre-trial planned impeachment cannot exist when the "no discovery"
witness begins testifying. With no discovery, there is no pre-trial
prior inconsistent statement. But even this limitation may evaporate
once the witness begins testifying. The witness may say something on
direct examination and later contradict himself, either within his
direct examination or in the course of cross-examination. Realize then
that even the technique of impeachment through use of prior inconsistent
statements may become available during the cross-examination of a
witness when no pre-trial discovery exists.
General credibility attacks that the cross-examiner may use on any
witness also may be applied to the "no discovery" witness. However,
because this witness is "no discovery," the lawyer has the same problem:
how to find the credibility attacks within the direct examination. To
some extent, because the cross-examiner does not have a prepared script
for this witness, the cross-examiner's creativity is not restricted,
tied down, or scripted. With that said, counsel should concentrate on
the basics of the general credibility attacks: bias, interest, and
Marginalizing the Witness
The technique of marginalizing a witness certainly applies to the "no
discovery" witness. As was discussed in Part 1 of this series of
articles,5 most witnesses are niche
witnesses. They can testify to a rather small number of facts. If this
"no discovery" witness cannot be used to support the cross-examiner's
theory of the case, or be used to hurt the opponent's theory of the
case, and cannot be attacked safely, or the facts upon which the "no
discovery" witness testifies cannot be attacked, then the cross-examiner
may consider marginalizing the witness by asking a series of chapters
designed to illustrate to the fact finder that this witness knows
precious little about the case.
1Larry Pozner & Roger Dodd,
Without Discovery: Part 1, 77 Wis. Law. 20 (May 2004); Pozner
& Dodd, Cross-
examination Without Discovery, Part 2: Using Direct Examination as
'Discovery', 77 Wis. Law. 12 (June 2004).
2Larry Pozner & Roger Dodd,
Cross- Examination: Science and Technique (Lexis Law
Publishing), Ch. 11, "Sequences of Cross-Examination" (benefits of
3Id. at Ch. 9, "The
Chapter Method of Cross-Examination" (structure, makeup, content of
chapters of cross-examination). "Chapters" are areas of
cross-examination that are each a series of goal-focused, leading
questions. A successful cross-examination is a series of goal-oriented
questions whose logical form is chapters.
4Id. at Ch. 21, "Dealing
With the 'I Don't Know' or 'I Don't Remember Witness'."
5Larry Pozner & Roger Dodd,
Without Discovery: Part 1, 77 Wis. Law. 20 (May 2004).