The Ten Commandments (of Cross) – Are They Still Good In Criminal Cases?
Famed prosecutor, criminal lawyer attorney, civil litigator and judge Irving Younger is well known for his “Ten Commandments of Cross Examination”. Lauded as some of the best advice ever for trial lawyers, are these rules to live by still valid for today’s modern courtroom?
Let’s take a look:
Commandment 1: Be brief. Jurors are notoriously “short-memoried” and to have an impactful cross examination the jurors must remember the questions asked. Imagine the juror as a “cup” with a limited capacity to remember, if you overfill it, the juror will not remember whatever had drained down the side and spilled on the counter. Keep cross brief and impactful.
Commandment 2: Short and Plain. In other words, jurors respond to short questions and simple language, lawyers do themselves no good using $64 words in long paragraphs. Talk like a real person and “real” people will understand you. The lawyer wants to convey that he may be an attorney, but deep down he’s the same as the juror, just a regular person.
Commandment 3: Lead me, period. Lawyers should only ask leading questions on cross, they should try to put words into the witness’s mouth, to essentially testify for them. Never let the answer to one of your questions be anything more than “yes” or “no”.
Commandment 4: Know the answer. In simple terms, never ask a question you don’t already know the answer to. This includes “why” questions. There are only two exceptions, one, where you don’t care what the answer is and the other is when you are “closing doors”, or escalating (see below).
Commandment 5: No Do-Overs. Never let the witness repeat direct testimony. Why would you want to emphasize and reinforce what the witness said for the opposing side?
Commandment 6: No Explaining. Based on the idea that it is never okay to ask a witness a question you don’t already know the answer to, never let a witness “explain” anything on cross examination. Triple-check and edit your cross examination questions to purge anything that might violate this rule.
Commandment 7: Thou Shal Listen. Listening can provide a lawyer with a wealth of information both during cross but also ammunition for closing arguments. It’s key to listen to what a witness actually says, not what you “think” they would say, or what you expect them to say. When you are able to quote verbatim a witness’s favorable statements trust will increase with the jurors.
Commandment 8: Never Argue With the Witness. Yes, you’re an attorney. Yes, you’re competitive, but there is a time and a place for all things. Jurors have likely never seen a “real” (read non-television) cross examination. An attorney who berates a witness or tries to “beat up” a witness loses sympathy with the jury.
Commandment 9: Avoid the “One to Many”. These questions are usually those that violate the other rules, it’s important to stop when you’ve illustrated your point and forget that last question that bends the rules.
Commandment 10: Save It. Save your argument for closing or summation. Tying up loose ends from direct and cross is a difficult but important part of sewing together a tapestry for the jury made of the bits and pieces of information that you’ve presented over a long trial. It’s important that the jurors believe that they’ve arrived at the conclusion you present in summation on their own, and you were simply the guide.
Professor Younger’s ten commandments still hold up very well in the world of modern trial advocacy and winning lawyers always use them.
