The rules of evidence can be very confusing for most lawyers. One of the
hardest jobs is explaining to a client (while preparing for trial) the
rules of evidence. Clients tend to bring information to the law firm when
preparing for trial that may be relevant in their mind but is not going
to be legally relevant (admissible) in a courtroom.
It is axiomatic that effective cross-examination is the ultimate tool to
get to the truth. However, trial lawyers cannot ask every question that
a client wants them to ask.
Here is how we explain to clients the concept of cross-examination and
Credibility of witnesses is always ripe for cross-examination pursuant
to Evid.R. 607. (“Cross-examination shall be permitted on all relevant
matters and matters affecting credibility.”)
Impeaching credibility is located in Evid.R. 608 (the credibility of a
witness may be attacked through opinion, reputation, and specific instances
of conduct evidence as to the character of the witness for truthfulness
or untruthfulness) and Evid.R. 616 (a witness may be impeached as to bias
(motive to misrepresent), sensory or mental defect (inability to remember
the events), and specific contradictions within certain limitations.)
However, cross-examination (and impeachment) is limited by Evid.R. 402
(relevance) and Evid.R. 403(A): “if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues,
or of misleading the jury.
Cross-examination is one of the most thrilling aspects of being a trial
lawyer. However, it is an art (intuition is very critical) and science
(laser-focused questions protected by the rules of evidence).
The best recommendation we have for a client working with us for his/her
trial is pretty straightforward – send us everything you want us
to know (the puzzle pieces) and we will figure out where the pieces go.
It may take a few hours to generate just 10 questions for a single witness.