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FreeQuick bite 04.04.01 · Library 04 · Trial Skills

The three goals of cross

The scope is the same here

Evid. Code §§ 761, 773(a) · Evid. Code §§ 760, 772(c) · FRE 611(b)

Cross is argument to the jury, not a contest with the witness. And California is a scope-of-direct state, just as federal court is.

WHAT YOU ARE FOR YOUR JOB IN IT Build a rule he cannot deny Then show he broke it. The rule comes first, always. Hitchhike Take what helps you and make it yours, in his words. Show what he does not know There is always something. Even nothing is an argument. Sit down Of ten points, five are gold. Make the five. Every question is aimed past the witness at the jury. They vote on each one.

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Plate 04.04.01 § 761 puts the limit inside the definition of cross itself. “‘Cross-examination’ is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness.”
§ The scope of cross
The questionFederalCalifornia
Is it wide openNeither one is.
Federal
611(b)
Hortatory: cross “should not go beyond the subject matter of the direct and matters affecting the witness’s credibility”
California
§§ 761, 773(a)
Definitional, and credibility is not inside the clause. Usually the same result
Where credibility livesInside the scope, or beside it.
Federal
611(b)
Named in the scope clause itself
California
§§ 780, 785
Outside § 773(a). If the court reads it that way, ask leave under § 772(c)
Going outside itWhen you need more.
Federal
611(b)
The court may allow it “as if on direct examination”
California
§§ 772(c), 760
Discretion. And § 760 then makes it direct, so § 767(a)(1) governs leading
In the courtroom
What California is generous about§ 776Not scope. § 776 lets you examine a narrow, defined class — a party, or a person identified with one — as if on cross. That is manner, not subject matter.
The jury votes on every questionWhen you ask and get an answer you did not want, they are deciding whether to go with you or with the witness. That is the unit of cross, not the concession.
Application

The mindset comes first, because it dissolves most of the commandments. You are not arguing with the witness. You are arguing your case to the jury through the witness, and the tools are logic and probability rather than combat. Once that is settled, a great deal of the received advice about cross becomes less binding.

On scope the two systems usually land in the same place, but do not tell a judge the texts are the same. Rule 611(b) is hortatory and puts matters affecting credibility inside the permitted scope. Section 761 is definitional and section 773(a) says only within the scope of the direct. Both are administered as trial-court discretion, which is why the results converge. The consequence worth knowing is what happens when you go outside: section 772(c) lets the court permit it, and section 760 then makes that examination direct, which puts leading back under section 767(a)(1).

Two things to have in mind

The frameI am not arguing with this witness. I am arguing my case to the jury through him. Every question is aimed past him.

When the scope objection comes“Credibility, Your Honor. Section 780 makes his bias a matter the jury may consider and section 785 lets any party attack it. If the Court reads it as outside the direct, I ask leave under 772(c) — and I will not lead.”

Three traps
  • Telling a judge the two texts are the same.They are not. Federal puts credibility inside the scope clause and § 773(a) does not. The results converge.
  • Going outside the scope and staying on leading questions.§ 772(c) plus § 760 makes that examination direct, and § 767(a)(1) then governs.
  • Counting the concession as the win.The jury votes on the question either way. Frame it so the answer does not matter.
Where to go deeper
NextLeading questions done right

The control device, and when to drop it.

Quick bite 04.03.01Goals of direct examination

The same premise, the other chair.

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