If you haven’t read our previous blog on direct and cross-examination, you can find it here. This blog is written as a continuation of that one.
To review, witness testimony can be broken down into four distinct sections: direct examination, cross-examination, redirect examination, and recross-examination. For this post, we’ll take a look at the last two sections.
Redirect Examination
After cross-examination, the original attorney has the opportunity to conduct redirect examination. Redirect examination functions similarly to direct examination, with a slightly different purpose. Instead of trying to get the witness to explain their full story, the attorney is instead trying to plug the holes that opposing attorney poked into the testimony. This is entirely optional; the attorney may feel that very little damage was done during the cross-examination and opt to move on to the next witness.
On redirect, the attorney is still bound to the same rules as direct examination: all open-ended questions and few, if not zero, leading questions. The redirect is also limited to what was discussed during the cross-examination.
Before we jump into an example of this, let’s recap what our hypothetical case has been so far. During the direct examination, the witness testified that he was robbed from behind at knifepoint while withdrawing money from an ATM. He turned around and saw the car’s license plate as it was driving off. On cross-examination, the opposing attorney pointed out two critical details within the witness’s testimony: (1) the only light on the ATM was broken, and (2) the crime took place at midnight. Both these details cast doubt on the witness’s story since it would have been difficult to see the license plate in near darkness.
With that, let’s see what a redirect examination may look like in this scenario:
Attorney: Besides the broken lightbulb opposing counsel alluded to, were there any other sources of light at the scene?
Witness: Yes, there was the neon sign of the restaurant next door, and I also had my phone out as a flashlight.
Attorney: How bright was the neon sign?
Witness: It was pretty bright; I could see as far as the next plaza over in that light.
Attorney: How bright was your phone?
Witness: It was pretty bright too; I’d say the light went as far as three car lengths.
Attorney: When did you turn your phone on as a light?
Witness: I turned it on once I got to the ATM, it was pretty dark at the machine itself.
Attorney: Did you have your phone out the entire time?
Witness: I dropped it when I was being robbed but I picked it up quickly when I heard the car start.
Attorney: Do you think you were targeted because this ATM was poorly lit?
Witness: Probably.
Attorney: No further questions.
Here, the attorney focused on the same issues as the opposing lawyer did in his or her cross-examination. Through the redirect, the attorney was able to extricate much valuable information from the witness’s testimony, being that there were in fact other sources of light at the scene that enabled the witness to see the license plate. This helps to remove some doubt that the jury may have about the testimony.
Recross-Examination
In many cases, it is rare for a judge to permit a recross-examination. The judge usually only permits this when a significant fact developed through redirect examination that the opposing side has not had a chance to address yet. Most testimony will typically end at the redirect stage.
Here, however, some critical information did arise, being that the victim was using his or her phone at the time of the robbery. Let’s take a look at what the subsequent recross may look like:
Opposing Attorney: Isn’t it true that you claimed in your deposition that the car your assailant drove off in was parked at the restaurant next door?
Witness: Yes.
Opposing Attorney: From where you were standing to where that car was parked, how many car lengths would you say the distance was?
Witness: Hmm…about six car lengths, I’d say.
Opposing Attorney: And you stated moments ago that you were using your phone as a flashlight at the time of the incident, correct?
Witness: Yes.
Opposing Attorney: And the flashlight setting you were using extends about three car lengths, as you testified?
Witness: Um…yes.
Opposing Attorney: And your phone was on the entire time, right?
Witness: Yes.
Opposing Attorney: The police report says that you called in the crime at about 12:45, does that sound about right?
Witness: Yeah, I’d say so.
Opposing Attorney: You said the crime occurred around 12 AM, correct?
Witness: Yes.
Opposing Attorney: No further questions.
Here, the opposing attorney once again used leading questions to guide the testimony on a desired path. The lawyer focused on two distinct issues: the first is that the witness’s flashlight would have been less effective given the distance of the car and the second is that the witness waited 45 minutes before calling the police about the crime. The second issue did not arise until the redirect examination, which prompted the opposing attorney to seek a recross examination to address it.
After this point, depending on how necessary the court deems it to be, both sides could continue in a flipflop pattern of redirect and then recross over and over until they are satisfied. This, however, is incredibly rare and would only be permitted if it were truly necessary. This is because the scope of each subsequent examination is limited to the scope of the previous examination. Imagine a funnel that keeps getting smaller and smaller every time you use it. When the scope of questioning becomes so small, there will be a point when the attorneys are quite literally unable ask any more questions. The law also expressly prohibits testimony from needlessly consuming time, so a judge would need good cause to allow these additional examinations. Most typical testimonies end at the redirect examination phase before moving on to a new witness.
While reading these two blogs may better inform you on how testimony works, the truth is that direct and cross-examination (and their subsequent iterations) are incredibly difficult procedures to do right. There are many other elements at play that, for the sake of length, were not included in this post, such as objections and admission of evidence. There is also no single silver bullet question or string of questions that will absolutely destroy or bolster a witness.
Direct and cross-examination is an art that must be tailored to each individual case and witnesses involved. You will need a seasoned criminal defense attorney who has done this process a thousand times over and can apply that experience to your own case. Call Hendry & Parker, P.A, in downtown Dunedin, at (727) 205-5555 today for a free consultation.