Contrary to widespread belief, cross-examination skills are not a gift that some lawyers possess and others do not. A good cross-examination can be conducted by any lawyer who prepares diligently. The key to a strong cross-examination in a domestic violence case is to work closely with your client to anticipate how your client’s former abusive partner will present and what he will focus on in his testimony. Often, abusive former partners inadvertently corroborate a victim’s testimony about things such as his fixation on fidelity issues and stalking by discussing those matters on direct (e.g., “I checked her cell phone, so I knew she had been calling him.”).
The number one mistake that many attorneys make during cross-examination is asking one question too many. That last question sometimes allows the witness to explain something away, or, worse yet, allows him to deny a fact that he did not deny in his own direct examination. If he did not deny a specific incident in his direct, the worst thing you can do is raise it during cross.
Another common mistake by attorneys in these cases is over-reliance on questions asking the abuser if he committed specific incidents of abuse. These questions are rarely, if ever, fruitful.
Cross-examination of the abusive former partner should be tailored to the lawyer’s style and what is known about the abuser’s likely strategy and demeanor. An overly aggressive cross-examination of a pro se defendant can look like the attorney is picking a fight and trigger sympathy for the party who is abusive. Give these issues thoughtful consideration in advance of the hearing, and do not plan your cross by relying on hope that a dramatic movie-style moment will transpire. Be realistic.
Finally, the cross-examiner should plan to make a few clear, concise points and stop. Important points will lose their impact if obscured amidst a rambling barrage of questions that make trivial points, if any. In assessing your cross-examination plan, consider these questions:
- Have I limited myself to only a few, discrete, and important points?
- Is each question simple, direct, and clear?
- Have I asked only leading questions?
- Have I limited myself to only one fact per question?
- Have I avoided “why” questions?
- Does every question have a purpose and a point worth making in my closing?*
- Have I examined each question to make sure it does not give the abusive party an opportunity to explain himself?
- Can I control the answer to every question, even if I don’t know the answer?
- Do I have a plan for every possible answer?
- Does the question require a yes/no answer?
- Am I clear about which question is “one question too many?”
- Have I avoided being overly transparent such that the witness might catch on and do damage control?
- Did I save the important points for closing argument?
- Is my strategy consistent with the advice my client gave me about how he will behave and what he will say?
- Have I done my homework to discover all possible sources of impeachment material?
- Have I avoided trying to get evidence from a hostile witness that I can get from a more predictable or more friendly source?
- Have I prepared myself to be flexible, and to follow my witness?
- Do I have a plan to move on when the going gets rough?
*Examples of some points worth making so that you can feature them in closing include: showing the defendant lied by impeaching them with materials or prior statements, showing a history of abuse against other women (assuming you have a good faith basis and evidence to present), re-iterating controlling and jealous behavior he may have already shown, demonstrating that he accepts no responsibility and blames the victim for everything, showing that he feels entitled to know about your client’s activities or to restrict them, showing that he has learned nothing from prior batterer intervention courses. Remember, lay the groundwork in cross, and save the point itself to make during closing argument. By saving for closing, you don’t afford the defendant a chance to create an excuse, and you get the opportunity to contextualize it for the judge.