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By Philip S. Kushner, Edited By Elizabeth Kelley
Practice Points columns.
Cross-examination has been called the greatest legal engine ever invented for the discovery of truth. It has also been said that more cross-examinations are suicidal than homicidal, meaning that most cross-examinations hurt the examiner’s case more than they help. Both are probably true. For criminal defense lawyers in particular, effective cross-examination is essential to winning at trial. Defense lawyers often do not put on a case, if they can avoid it, so the defense must be presented through the prosecution’s witnesses on cross-examination. Even when the defense does present a case, its success will depend in large part on the effectiveness of the cross-examination of the prosecution’s witnesses.
Before commencing cross-examination of a witness, the lawyer must answer the following key questions: What are my defense and theory of the case? What can I do in cross-examination of this witness to further my theory of the case? What has the witness said
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