225.4Examination of Witnesses
- Cross-examination is not restricted to matters raised on direct examination, as long as the matters are otherwise relevant and admissible
- Control the witness on cross-examination - this means recognizing which issues are important, asking leading questions that bear directly on only those issues, and promptly moving on rather than getting dragged into an argument.
- Be aggressive but careful when cross-examining the defendant or a defense expert witness, and know when to quit -- you don’t have to win the case here, just don’t lose it.
Background and Purpose
Cross-examination is an essential safeguard to ensure the accuracy and completeness of testimony. Its function is to shed light on the credibility of direct testimony and to bring out additional facts of probative value. In contrast to direct examination, cross-examination may be conducted through leading questions. G.S. 8C-1, Rule 611(c). The witness is generally assumed to be somewhat uncooperative when facing cross-examination. The object of cross-examination is not to engage in verbal combat or achieve dramatic “you can’t handle the truth” Hollywood-style moments, but rather to elicit facts that will support the state’s theory of the case. The prosecutor cross-examines a witness for the benefit of the jury, not for him- or herself.
The scope of cross-examination is not limited to matters asked about on direct examination. It is generally “wide open” to any questions, limited only by relevance, a good faith basis for the question, and the judge’s discretion. See State.v Locklear, 349 N.C. 118 (1998); State v. Bates, 343 N.C. 564 (1996); State v. Stanfield, 292 N.C. 357 (1977); N.C. R. Evid. 611(b). Nevertheless, the court will likely exclude matters on cross-examination when:
- Matter is immaterial, irrelevant, or incompetent. See State v. Lynch, 334 N.C. 402 (1993); State v. Jones, 98 N.C. App. 342 (1990).
- Probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, misleading the jury, or causing undue delay, waste of time, or presentation of cumulative evidence under Rule 403. See State v. Whaley, 362 N.C. 156 (2008).
- Questions are intended to harass, annoy, or humiliate a witness. See State v. Mason, 315 N.C. 724 (1986); State v. Pharr, 110 N.C. App. 430 (1993).
General Goals of Cross-Examination
- Elicit favorable testimony supportive of the state’s position and contentions.
- Develop new material favorable to the state.
- Present or re-present the state’s theory of the case.
- Corroborate the state’s own witnesses, and perhaps eliminate the need to call additional witnesses or to present rebuttal evidence.
- Discredit the defendant’s witness by showing motive, interest, bias, or prejudice.
- Discredit the defendant’s witness’s testimony by challenging the witness’s perception, memory, or ability to communicate.
- Lay a foundation to impeach other witnesses.
Practical Suggestions for Cross-Examination
A good cross-examination should have a purpose, a direction, and, if possible, tell a story. Although the witness answers “yes” or “no,” the choice of words and questions lies solely with the cross-examiner. Cross-examination should be viewed as a tool for diminishing the defendant’s evidence or strengthening the state’s evidence. It is not the time or place to “make your case.” Some spontaneity in cross-examination is fine, but the best results come from a well-planned and organized cross-examination, rather than a sixth sense effort to detect human weaknesses, or engaging in a guessing game in front of twelve jurors. The late Professor Irving Younger’s lecture on The Ten Commandments of Cross-Examination remains a classic. The commandments provide rules for lawyers to avoid embarrassment and defeat on cross-examination:
- Be brief.
- Short questions, plain words.
- Always ask leading questions.
- Do not ask a question to which you do not know the answer in advance.
- Listen to the witness’s answers.
- Never quarrel with the witness.
- Don’t allow the witness to repeat his or her direct testimony.
- Don’t permit the witness to explain his or her answers.
- Avoid asking the “one question too many.”
- Save the ultimate point of your cross-examination for summation.
These commandments can be summed up in a single phrase: control the witness. The witness on cross-examination is already primed to resist giving the right answer, so the odds are stacked against the cross-examiner. Jurors may view unfavorable answers as even more damaging when they are elicited on cross. Most prosecutors have had the pleasant experience of watching the state’s case become stronger due to a poorly planned or executed cross-examination by defense counsel, but the state’s case can just as easily be damaged if the prosecutor makes the same mistakes with a defense witness. It is very rare to “win” a case on cross-examination, but it can definitely be lost there. Therefore, hand-in-hand with Professor Younger’s Ten Commandments for conducting a good cross-examination, there is also a list of important cross-examination“Don’ts”:
- Don’t lose your temper. Hide your emotions if necessary. Never show that you have been hurt by an answer. Act like you expected to hear it.
- Don’t cross-examine a witness unless the witness has hurt you and there is a fact which needs to be drawn out or a point to be made. “No questions” is a perfectly appropriate tactic in many instances.
- Don’t browbeat a witness or be cruel and unfair. Humiliation is not a victory.
- Don’t go fishing. This is not the time for discovery.
- Don’t let others at counsel table talk to you while you are cross-examining a witness. Have them pass you a written note, but only if it is important.
- Don’t weaken a good point made on cross by repeating it. Wait and save it for final argument. Don’t press the witness with it.
- Don’t use words that witnesses and jurors may find confusing, like “subsequent” (just say “after”) or “discourse" (just say “conversation”).
- Don’t expound on insignificant things or trifling discrepancies. The jury knows that human memory is not always exact about time, dates, and amounts.
- Don’t get carried away at the sound of your own voice. Keep it short, and quit while you are ahead.
- Don’t forget that the jury is keenly aware of the inequity of the experienced advocate vs. the inexperienced witness who is nervous and in unfamiliar surroundings.
- Don’t follow the order of the witness’s direct testimony, because the witness will just repeat everything on cross. The cross should be structured based on topics, rather than chronology. Jump around (backward, forward, middle) without giving the witness time or opportunity to make a connected narrative. Change topics: keep the witness on cross one step behind you, not one step ahead of you.
- Don’t start off on cross where the witness left off on direct.
- Don’t argue with a witness—it just gives the witness the opportunity to argue with you. Don’t agree with the witness either.
- Don’t be afraid to object, when appropriate, but don’t be objectionable.
- Don’t inadvertently open a door by a line of inquiry that you had not wanted to open—nor to prove an essential fact in the defendant’s case that had not yet admitted into evidence.
Cross-Examination of the Defendant
The defendant is the classic "interested witness," because he or she is obviously biased towards obtaining a favorable outcome of the case. In general, the jury will expect to see the prosecutor vigorously cross-examine a testifying defendant. Some of the best tools in the prosecutor’s arsenal for cross-examining the defendant are:
- Defendant’s prior statements (especially inconsistent statements).
- Physical evidence inconsistent with defendant’s theory of the case.
- Suppressed evidence (statement, drugs, etc.) that was inadmissible in the state’s case, but may now be admissible for cross-examination (see below).
- Flight (or silence—but be aware of constitutional limitations, see below).
- Defendant’s criminal record.
- Defendant’s bad character or specific traits, if admissible.
Cross-Examining Defendant About Pretrial Silence
The defendant’s right to remain silent and not incriminate himself under the Fifth Amendment of the United States Constitution and Article 1, Section 23 of the North Carolina Constitution places significant restrictions on the state’s ability to introduce evidence about the defendant’s silence. See Miranda v. Arizona, 384 U.S. 436 (1966); State v. Lane, 301 N.C. 382 (1980); State v. Hoyle, 325 N.C. 232 (1989).
However, there are a few important exceptions and limitations to this right, including impeachment by a prior inconsistent statement and impeachment by pretrial silence in the absence of Miranda warnings when the defendant’s silence is inconsistent with the defendant’s trial testimony. See State v. Odom, 303 N.C. 163, 166, n. 2 (1981); State v. Hunt, 72 N.C. App. 59 (1984), aff’d by equally divided court, 313 N.C. 593 (1985); State v. Abbitt, 73 N.C. App. 679 (1985); State v. Westbrooks, 345 N.C. 43 (1996).
1. Pre-Arrest Silence
A prosecutor may cross-examine a defendant about defendant’s pre-arrest silence, because the use of pre-arrest silence to impeach does not violate the Fifth Amendment or due process rights. Jenkins v. Anderson, 447 U.S. 231 (1980); State v. Westbrooks, 345 N.C. 43 (1996); but see State v. Shuler, 378 N.C. 337 (2021) (defendant who filed notice of affirmative defense of duress but had not yet testified still retained her right to remain silent - error to allow impeachment evidence regarding her silence at the scene prior before she testified).
2. Post-Miranda Statement/Silence
If the defendant was given Miranda warnings when arrested and then voluntarily spoke after receiving that warning, obviously he or she may be cross-examined about that prior statement and the fact that the statement is inconsistent with the defendant’s testimony at trial. See Anderson v. Charles, 447 U.S. 404 (1980); State v. Mitchell, 317 N.C. 661 (1986); State v. Malone-Bullock, 2021-NCCOA-406, 863 S.E.2d 659 (2021); State v. Dalton, 96 N.C. App 65 (1989).
But as mentioned above, the prosecutor may not cross-examine defendant about his or her silence at the time of arrest or after the Miranda warnings, precisely because Miranda warnings explicitly assure a defendant that silence will not be used against him or her in violation of the Due Process Clause of the Fourteenth Amendment. Doyle v. Ohio, 426 U.S. 610 (1976); Wainwright v. Greenfield, 474 U.S. 284 (1986); State v. Freeland, 316 N.C. 13 (1986); State v. Quick, 337 N.C. 359 (1994). But see State v. Booker, 262 N.C. App. 290 (2018) (no error in allowing detective to testify about defendant's post-arrest silence, after defendant opened the door on cross-examination by asking detective about attempted communications with the defendant both before and after her arrest).
3. Un-Mirandized Pretrial Silence
If the defendant was never given a Miranda warning, then it does not violate due process to impeach the defendant on his silence, and it is up to to each state to determine the extent to which the defendant's pretrial silence may be used to impeach his trial testimony. See Fletcher v. Weir, 455 U.S. 603 (1982) ("In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand."); State v. Lane, 301 N.C. 382 (1980).
In North Carolina, the test to determine whether a defendant’s pretrial silence about a “material circumstance” (such as an alibi offered at trial) is inconsistent with or a contradiction of his or her testimony at trial (and is therefore admissible for the purpose of impeachment) is whether “at the time of defendant’s silence, it would have been natural for him to speak and give the substance of his trial testimony.” State v. Odom, 303 N.C. 163, 166, n. 2 (1981); State v. Lane, 301 N.C. 382 (1980); State v. Hunt, 72 N.C. App. 59 (1984), aff’d by equally divided court, 313 N.C. 593 (1985); State v. Westbrooks, 345 N.C. 43 (1996).
And you never mentioned this before...?
For example, if a defendant asserts an alibi for the very first time at trial, the prosecution is prohibited from attempting to impeach the defendant’s credibility by cross-examining the defendant about the (quite surprising) fact that he never mentioned this alibi back when he was being arrested, while being held in custody, or at any other time before trial - unless it would have been “natural” for the defendant, under the particular circumstances of the case, to have disclosed the alibi sooner, and he or she had not yet been advised of the right to remain silent. See State v. Lane, 301 N.C. 382 (1980) (reversing conviction, finding it was not “natural” to assume defendant would have been able to instantly recall at the time of his arrest where he had been 21 days prior and provide his alibi for that day, even though he did make a statement at the time of his arrest that he did not sell heroin to the person alleged).
4. Statements Taken in Violation of Miranda
An involuntary or coerced statement may not be used for any purpose, even impeachment. But in Harris v. New York, 401 U.S. 222 (1971), the United States Supreme Court ruled that voluntary statements taken in violation of Miranda may still be used to impeach a defendant who takes the witness stand to testify. See also State v. McQueen, 324 N.C. 118 (1989); State v. Bryant, 280 N.C. 551 (1972). Under these circumstances, the defendant may also be cross-examined with suppressed evidence for impeachment purposes which would otherwise be inadmissible in the state’s case in chief. See, e.g., U.S. v. Havens, 446 U.S. 620 (1980) (t-shirt which was suppressed as fruits of a 4th Amendment violation could still be used to impeach defendant’s denial of making such a shirt). For additional information regarding commenting on the defendant’s silence during closing arguments, and how that compares to commenting on the fact that the defense has failed to offer any evidence to refute the state’s case, see the related entry on Closing Arguments: Impermissible Content.
Cross-Examination of a Defense Expert
Whenever possible, the prosecutor should consult with the state’s own expert witness or another knowledgeable person in the field to prepare for asking the defense’s expert witness about any errors or weaknesses in witness’s analysis or conclusions. If possible, the prosecutor should also obtain copies of the defense witness’s testimony from past cases, and consult with colleagues about what to expect from the witness at trial. Being knowledgeable about the expert’s field and past testimony will allow the prosecutor to conduct a more thorough and effective cross-examination, and prevent the prosecution from being devastated by an expert who attempts to slant his answers or gloss over deficiencies in his analysis. Furthermore, when cross-examining the defendant’s expert, it is vitally important to convey to the jury that the prosecutor is comfortable and knowledgeable about the witness’s area of expertise. Whether it is mental health, firearms identification, fingerprint comparisons, forensic pathology, chemical analysis, or breath test results, the prosecutor must be prepared and ready to respond with some points for the state.
If the prosecutor does not have any specific points to dispute with the defense’s expert, or if the prosecutor is simply not confident that he or she can effectively engage and challenge the witness on cross-examination, then it is usually better to just ask a few basic questions pointing out that the witness is a “hired gun” for the defense, and then get the witness off the stand as quickly as possible. Many defense experts testify professionally, and it is highly unlikely that they will be surprised or rattled by any of the prosecutor’s questions. Nor is such a witness likely to ever admit that his or her methodology or conclusions are flawed. In those cases, the prosecutor’s primary goal is simply to get the witness to acknowledge that the basis for the state’s criticism is correct. For example, by showing that: (i) the witness has less education or training than the state’s expert; (ii) the witness did not personally examine the item or go to the scene; (iii) the witness doesn’t have the same modern equipment that the state's expert has; or (iv) the defense expert’s methodology is not widely accepted by the larger scientific community. The prosecutor should save the arguments for closing about why those deficiencies make the witness’s conclusions and opinions unpersuasive.