PREPARATION AND CROSS-EXAMINATION

“Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.”
— John Henry Wigmore, Professor and Dean

Cross-Examination: Where It’s At

I’m not a firm believer in closing arguments. By the time the case reaches closing, the jury has usually made up its mind. The real battle is won during the opening statement and, more importantly, during cross-examination.

Getting opposing witnesses to admit facts that favor your case is far more powerful than relying on testimony from your own witnesses. These witnesses are often viewed with suspicion by the jury, so while their testimony can help, it may not carry the day. The impact of favorable admissions from the other side’s witnesses is much stronger.

The Recent Perjury Investigation

In September 2024, a felony sexual assault case I was defending was dismissed just before trial. The case had many prosecutorial issues, but one major turning point came during the cross-examination of the complaining witness.

Before the preliminary hearing, the defense team meticulously prepared, planning to hold certain key points for trial. One key preparation involved thoroughly reviewing the complainant’s social media presence. In multiple TikTok videos, she was seen holding a large binder of materials she had collected about the relationship over the years.

When she took the stand, she brought that same binder with her. I immediately recognized it and asked if it was the same binder she had used in her TikTok videos to publicly criticize my client. Her response was less than truthful.

Shortly after leaving the witness stand, she made her TikTok account private within minutes. As a result, the prosecutor initiated a perjury investigation into her testimony, and I was later interviewed by investigators who collected parts of my case file.

Case Dismissed

The case was ultimately dismissed, likely due to the perjury investigation that my cross-examination had set in motion.

The Teaching Point

The key takeaway here is that preparation and a thorough investigation, combined with sharp cross-examination, can win cases or put you in the best possible position to win.

Preparing for cross-examination is like turning over 100 rocks, hoping to find one usable piece of evidence. Or, it’s like having 100 rabbits in 100 hats — you might only need to pull one, or none at all. But you must always be prepared.