CROSS EXAMINATION AND THE TAX TRIAL
The Sixth Amendment gives the criminal defendant
the right "to be confronted with the witnesses against him." This right includes the right to cross-examine the
government witnesses in a criminal trial. (In re Oliver, 333 U.S. 257 and Pointer v. Texas,
380 U.S. 400.
During cross-examination, you may ask questions
about the following two areas:
1. The
subject matter of the witness' direct testimony.
2. The credibility of the witness.
You
have the right on cross-examination to try to impeach the credibility of the witness. You can ask questions regarding
prior convictions, the witness' personal interest in the case, bias or hostility, prior inconsistent statements, or a lack
of capacity to understand.
Leading questions are allowed on cross-examination.
As a matter of fact they are very important on cross- examination. The selected fact should be stated and words such
as "right," "true," and "were you not," should be added at the end of the question. An
example of a leading question would be the following:
1. And you were in the room at 6:00 pm, right?
2. You were twenty feet away from the victim when he was
shot, were you not?
Remember that you do not have to cross-examine
a witness. Be sure that if you do cross-examine, you understand the purpose of the cross-examination. The jurors
have been conditioned by the media and they will expect a cross-examination so if you don't cross-examine it is possible that
the jury may believe a witness who is not cross-examined because he has testified under oath or because they may believe that
the opposing attorney believes the testimony to be accurate.
A
main thrust of cross examination is to ferret out the testimony that is favorable to your case and augment that testimony.
For example:
Q. Mr. Smith, you testified that the Transaction Code of 150 on Mr. Jones' Master
File means that a return was filed for that year, did you not?
If
some of the testimony of the witness has been adverse, then it is the purpose of the cross-examination to minimize its effect.
You can do this by emphasizing the defects in the witness' overall knowledge; the defects in the witness' conduct and the
immateriality of the opposition testimony.
The
jury is generally very attentive as the cross- examination begins. You have a good chance to make a lasting impression
with the first question. So ask a question that you can win!
It is important to maintain control of the witness during the cross-examination. Keep your questions brief, simple and
clear. Also remember that the use of leading questions is the most important way of maintaining control.
Questions like the following may be used by the government attorney against the patriot?
Q. You filed a tax return in 1973, didn't
you?
Q. You did not speak with an attorney before
you quit filing returns, did you?
Remember that
you can style your questions against the government witnesses the same way. You can maintain control of their testimony
through the use of the leading question.
Sometimes
the witness will respond in a non-responsive way. You must be aware of this problem or you may lose control of the witness.
Answers using the following words are non-responsive: May, might, possibly, usually normally, but, I guess so, etc.
If the witness is non-responsive, you may want to demand a responsive answer or ask the judge to direct the witness to answer
the question. Good luck, practice makes perfect, so get your practice first in civil litigation.
