Direct and Cross-Examination in Criminal Trials

August 28, 2023 Don Pumphrey, Jr. Criminal Defense Social Share

For those who have watched high profile criminal cases on TV, such as the trials of Casey Anthony or George Zimmerman, are likely familiar with the idea of an examination during a trial. While it may seem to be a straightforward question-and-answer process with the attorneys and witnesses, there are specific guidelines that must be followed during trial.

In short, examination of witnesses during a trial is broken down into four parts:

1. Direct Examination
2. Cross-Examination
3. Redirect Examination
4. Recross-Examination

This blog post will define and explain the four types of witness examination, along with reviewing Florida laws on witness testimony and lists of dos and don’ts when getting cross-examined. First, though, it is important to examine what Florida law says about the different kinds of witnesses who can testify and participate in examination during a trial. Florida law recognizes two groups of witnesses: expert witnesses and lay witnesses.

Expert Witnesses

Florida Statutes §90.604 provides that a witness cannot testify to a matter in trial unless there is evidence introduced which is sufficient to support the finding that the witness has specific, personal knowledge on the matter. The evidence to prove the personal knowledge can be proven through the witness’s own testimony.

However, an expert witness would be an exception to this law. Florida Statutes §90.702 states that if scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact in issue, then an expert witness (by knowledge, skill, experience, or education) may testify about the evidence in the form of an opinion or otherwise, if:

• The testimony is based upon sufficient facts or data;
• The testimony is the product of reliable principles and methods; and
• The witness has applied the principles and methods reliably to the facts of the case.

To find out more about expert witnesses and how they can impact a criminal trial, review our page here.

Lay Witnesses

A lay witness is the most common type of witness in a criminal trial and are usually the individuals who witnessed the alleged crime.

Florida Statutes §90.701 explains that when a lay witness testifies, their testimony can be presented in the form of inference or opinion when:

• The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
• Opinions and inferences do not require special knowledge, skill, experience, or training.

What is Direct Examination?

A direct examination is the initial questioning of a witness during trial. Direct examination is conducted by the party that called the specific witness up to the stand.

Under Rule 611 of the Federal Rules of Evidence, the court can exercise control over the method and order of examining witnesses and presenting evidence to:

• Make the procedures effective for determining the truth;
• Avoid wasting time; and
• Protect witnesses from harassment or undue embarrassment.

The rule also explains that leading questions—a type of questioning where the form suggests the answer—shall not be used during direct examination except as necessary to develop the witness’s testimony. The court allows leading questions during the following:

• On cross-examination; and
• When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

The following is an example of direct examination in a criminal trial:

Examining attorney (prosecutor): Ms. Smith, were you present at the convenience store at the time of the alleged robbery incident on July 15^th?

          Witness: Yes, I was standing outside the convenience store.

Examining attorney: Can you describe what you observed the night of the incident?

Witness: I saw [the defendant] enter the convenience store around 10 pm. He began shouting at the store employee and then grabbed cash out of the register. He then proceeded to run from the scene.  

Examining attorney: Did you notice anything else during the incident?

Witness: Yes, while the suspect was running out of the store, he accidentally dropped a black hat which I later identified as the same hat found by police at the scene of the crime.

Examining attorney: Thank you. [To the judge:] Your honor, I’d like to submit Exhibit A into evidence—a security camera footage outside the convenient store from the night of the alleged crime.

Judge: Exhibit A will be marked as evidence. Proceed.

Examining attorney: No further questions, your honor.

What is Cross-Examination?

Cross-examination occurs when the opposing party questions a witness during a trial. Once the direct examination has been completed, the opposing party can choose to question the witness to point out any weaknesses in the witness testimony. The process typically involves leading or targeted questions which are not allowed during the direct examination. The purpose of cross-examination is to find potential weaknesses or holes in the witness’s story or to demonstrate the lack of a witness’s credibility.

It is important to point out that the opposing party who is conducting the cross-examination must remain within the scope of the direct examination. That means the attorney may not raise issues outside of the subject matter of the initial direct examination.

The following is an example of cross-examination in a criminal trial:

Defense attorney: Ms. Smith, I am the defense attorney representing [defendant’s name]. You mentioned during the direct examination that you saw my client inside the convenience store on the night of July 15^th, correct?

          Witness: Yes, that is correct.

Defense attorney: And you claimed to have seen my client yelling at the cashier, and then take money out of the cash register?

          Witness: Yes, that is what I saw.

Defense attorney: I understand. Now, let’s refer to the events that led up to the alleged robbery. You were standing outside of the store, correct?

          Witness: Yes, that’s where I was.

Defense attorney: Were there any other people outside of the store during this time?

Witness: Yes, there were a few other people who were standing outside or passing by.

Defense attorney: So, there were multiple people present at the crime scene?

          Witness: Yes, that’s correct.

Defense attorney: Now, Ms. Smith, can you describe the lighting conditions outside of the store that evening?

Witness: It was pretty dark, but there were streetlights nearby so I could still see.

Defense attorney: I see. But with the limited lighting, it would be challenging to make out specific details, right?

          Witness: Well, I could see enough to know what was happening.

Defense attorney: Now the hat you mentioned in the direct examination. You said you saw my client drop a hat while running from the store?

          Witness: Yes, that’s what I saw.

Defense attorney: And you claimed to have identified that the hat was the same one found by police at the scene?

          Witness: Yes, I’m sure it was the same hat.

Defense attorney: (Pauses) Ms. Smith, isn’t it true that many people wear similar-looking black hats? How can you be certain that it was the exact same hat?

Witness: I recognized it because it had a specific logo on the front of it.

Defense attorney: But, considering the situation and the quick glimpse you had of the hat, could there be a possibility of mistaken identity?

Prosecuting attorney: Objection, Your Honor. Assumes facts not in evidence.

Judge: Sustained. Please rephrase the question, counsel.

Defense attorney: My apologies, Your Honor. (Continues) Ms. Smith, it’s possible that, given the circumstances, you may have mistakenly identified the hat?

          Witness: No, I’m certain it was the same hat.

Defense attorney: Thank you, Ms. Smith. No further questions, Your Honor.

By questioning different factors such as the lighting conditions, presence of others at the crime scene, and the possible mistaken identity regarding the black hat, the defense attorney was trying to potentially cast doubt on the witness’s ability to clearly observe the events and identify the defendant.

Once cross-examination has been completed, the first attorney will then have the option to conduct a redirect examination. Although it is often rare, the judge may permit a recross-examination if the redirect examination results in a significant detail developed in which the opposing party was not aware of or did not address in previous examination.

In that sense, the criminal trial would involve the process of direct examination, cross-examination, redirect examination, and recross-examination.

10 Commandments for Cross Examination

In a Florida Bar article published in 2022, Judge J. Layne Smith explained that after spending an excess of time on cross-examination, he found that the discovery deposition is a great time to learn everything the witness knows regarding the case.

In addition, the article lists the “10 commandments” for cross-examination by the late prosecutor Irving Young:

1. Be brief – The questioning attorney should not cross-examine witnesses who do not further support their case theory and should keep the length of the examination to a minimum.
2. Using plain words and asking short questions – During the cross-examination, the questioning attorney should refrain from using complicated legal words and phrasing, and instead keep it plain and simple for the witnesses and jury to understand.
3. Asking leading questions – Cross-examination is the time for leading questions, so the attorney will likely ask a question that helps their case.
4. Be prepared – It is important for the attorneys and witnesses to be prepared on what to answer or how to proceed with any change of testimony from the deposition.
5. Listening to the answer – Just as it is important for the witness to provide clear answers, it is important for the attorney to acutely listen. Otherwise, the attorney may be too focused on the following questions and may miss important details.
6. Not quarrelling with the witness – As jurors tend to sympathize with a fact witness over an attorney, they should always remain polite but firm in cross-examination. The attorney should ensure the witness answers the questions or loses credibility by a stubborn refusal to do so.
7. Not asking the witness to explain – Instead of asking the witnesses to explain the evidence, they may instead gather the essential case details and then explain what the evidence means during closing arguments.
8. Not allowing witnesses to repeat their answers – Repeating answers could create inconsistencies or holes in the story, and damaging testimony is more likely to stick when repeated.
9. Limiting cross-examination – The article claims that the best cross-examinations focus on no more than three key points.
10. Persuading during summation – Instead of trying to persuade the opposing witness during cross-examination, the attorney may try extracting testimony that can be applied during the closing argument.

Dos and Don’ts of Cross-Examination

The U.S. Department of Justice’s Office of Justice Program’s Trial Volume 23 presents an additional list of dos and don’ts when it comes to cross-examining a witness during trial:

Dos	Don’ts
Use simple language	Don’t ask questions the cross-examiner doesn’t know the answer to
Ask specific questions	Don’t repeat the direct examination
Examine improbabilities	Don’t be diverted from the cross-examination objective
Place time frame on reported incidents	Don’t let the opposing counsel interrupt
	Don’t insist on yes or no answers
	Don’t argue or object the judge’s questions
	Don’t get baited by the opposing counsel

 Contact Pumphrey Law for Your Criminal Defense

Getting charged with a criminal offense comes with the serious possibility of going to trial. If your case goes to trial, it is important to have a strong and experienced defense attorney on your side who is familiar with the various types of examination that can arise during trial. Don Pumphrey and his team of attorneys are knowledgeable and experienced when it comes to presenting at trial. Our team will help build a defense for your case, along with studying the case details to look for any inconsistencies. During the trial, we will remain tough in our examinations in our fight to get your charges lessened or dismissed.

Contact Pumphrey Law Firm today at (850) 681-7777 or leave us an online message for a free consultation regarding your case.

 Written by Karissa Key

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