Cross Examination in Florida: What You Need to Know

April 28, 2025 Don Pumphrey, Jr. Criminal Defense Social Share

Cross examination is a legal and ethical “set-up.” Never forget – a set-up. Confrontation through cross-examination is the exercise of a fundamental constitutional right: the right to confront one’s accuser(s). It is a truth-seeking tool, and the answers to the questions being asked by the examining attorney are usually already known. 

The examiner’s goal is to challenge the credibility and truthfulness of the person being cross examined. Cross examination has been called “the greatest legal engine for the discovery of truth.” California v. Green, 399 U.S. 149 (1970). When a witness provides sworn testimony during a legal proceeding, cross examination is an important tool defense attorneys use to develop the theory of their defense – and it should be designed to help their client’s case. 

What is Cross Examination?

Florida defines cross examination as the formal interrogation of a witness called by the other party in a court of law to challenge or extend testimony already given. This blog will explain Florida’s court rules surrounding cross examination, and the role of cross examination in determining the credibility and truthfulness of witness testimony.

Florida’s Rules of Evidence allow the prosecution and the defense to attack the credibility of a witness by showing that the witness is biased, regardless of which party called the witness to testify. Under FRE 90.612, cross examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. However, the court may give permission to the counsel performing the cross examination to bring up additional topics.

During cross-examination, an attorney may ask a witness about a “collateral” topic, often for purposes of impeaching (discrediting) the witness. If a cross-examining attorney asks a witness about a collateral matter (not directly related to the content of their testimony), they must “take” the answer the witness gives them, without introducing extrinsic evidence (evidence from outside the trial) to contradict the witness. 

Utilizing Extrinsic Evidence to Combat Testimony

However, if the collateral extrinsic evidence is relevant to something said by the witness during direct examination, the adverse (cross-examining) party can introduce extrinsic evidence to contradict a specific factual assertion made during the witness’s earlier testimony. Mills v. State, 681 So.2d 878 (Fla. 3d. DCA 1996) 

What is the Difference Between Cross Examination and Direct Examination?

A key difference between cross examination and direct examination is that leading questions may be asked during cross examination. An example of a leading question would be asking a witness, “You weren’t there that morning, were you?” A leading question embeds the desired answer to the question within the question itself – requiring the witness to accept or resist the assumption of the questioner rather than answer as a matter of fact. In essence, the form of the question suggests the answer. 

Some other examples of leading questions include:

• “Isn’t it true that you saw the defendant pull out a gun?”
• “You didn’t see any other cars on the road that night, correct?”
• “The light was green when you crossed the intersection, right?”
• “And after you heard the shouting, you immediately called the police, didn’t you?”
• “You were angry when you confronted him, weren’t you?”

FRE 90.612(3) does not allow for leading questions on direct examination “except as may be necessary to develop the witness’s testimony.” Direct examination is the initial questioning of a witness by the party that called them to the stand. Unlike direct examination, cross examination “ordinarily permits” the use of leading questions. Leading questions may be used when questioning an adverse party, hostile witness, or a witness who is identified as being aligned with the adverse party.

Leading questions are permitted during direct examination under two key circumstances: a witness is unable to develop testimony on their own – or the court allows the direct examiner to treat the person testifying as a hostile witness. A hostile witness is one “who is called with the expectation that they will provide testimony favorable to the calling party, but who subsequently proves to be unwilling or adverse, to the complete surprise of the calling party.” Poitier v. State, 303 So.2d 409 (Fla. 3d DCA 1974).

The primary purposes of cross-examination are to test the believability of a witness and the truth of their testimony. This includes by weakening, testing, or demonstrating the impossibility of the witness’s testimony on direct examination, and impeaching the witness’s credibility. Steinhorst v. State, 412 So.2d 332 (Fla. 1982). 

Attorneys have wider latitude during cross examination to ask questions in a manner not ordinarily allowed during direct examination, but this discretion is not unlimited. Pursuant to FRE 90.612, the trial judge controls the mode and order of the presentation of evidence. 

Moreover, under FRE 90.615, the court may call a witness and interrogate (in the interests of justice) to facilitate the discovery of truth, avoid needless consumption of time, and protect a witness from harassment or undue embarrassment. A judge may preclude repetitive and unduly harassing interrogation, ensuring cross-examination remains focused and respectful. McDuffie v. State, 970 So.2d 312 (Fla. 2007).

In criminal cases, the Sixth Amendment’s Confrontation Clause and Florida’s Evidence Rules guarantee the right of confrontation. The accused has the right to confront their accuser through questions that challenge or destroy a witness’s credibility. This is done via cross-examination, which is directed toward revealing possible biases or ulterior motives of the witness. The right to confrontation ensures that defendants can pursue a full cross-examination to expose any bias or improper motive that the witness may have in testifying against them. Washington v. State, 737 So.2d 1208 (Fla. 1st DCA 1999).

 The effectiveness of cross examination can often play a decisive role in a trial’s outcome. In 2022, Florida Judge J. Layne Smith provided a list of “ten commandments” for effective cross examination of adverse witnesses. These include:

• Be brief
• Be prepared
• Use plain words and short questions
• Ask leading questions
• Listen to the answer the witness provides
• Remain polite but firm, without quarreling with the witness
• During cross, not allow witnesses to repeat their answers
• During cross, do not allow witnesses to explain and frame the evidence 
• If possible, limit cross examination to three key points 
• Rather than focusing on persuading the witness, try to extract testimony that can be used during closing argument

In sum, cross examination is a key part of a criminal trial. Florida’s Rules of Evidence regulate cross-examination by ordinarily allowing leading questions to be asked during this – while also giving the judge discretion to limit or broaden the scope and nature of the cross-examination. Cross-examination can be greatly helpful for a defendant on trial, especially if the credibility of a witness against them is successfully challenged.

Finding a Criminal Defense Attorney in Tallahassee, FL

Being charged with a crime in Florida and facing a trial is very serious. A conviction could often result in lengthy prison sentences and hefty fines. It is vital for someone facing criminal charges to find experienced and aggressive legal representation as soon as possible.

Don Pumphrey, Jr. is a Former Prosecutor, Former State Police Officer, Lifetime Member of the Florida Association of Criminal Defense Lawyers; for over 25 years as a private defense attorney who is Trusted, Experienced, Aggressive in Criminal Defense as a Trial Attorney, Criminal Lawyer, Criminal Defense Lawyer for the accused in Florida State Courts located in Tallahassee, Florida but handling cases throughout the State of Florida.

Don Pumphrey, Jr. and the experienced criminal defense attorneys at Pumphrey Law have decades of experience fighting on behalf of clients and winning. Call Pumphrey Law now at (850) 681-7777 to learn more about what we can do for you. Our lawyers will be happy to provide you with a free consultation.

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