Criminal cross examination tips
from Terence MacCarthy

Terence MacCarthy is synonymous with effective cross-examination. For 41 years, he has headed the Federal Defender's Office in Chicago and is among the top CLE instructors in the nation owing to his lectures on cross-examination technique. MacCarthy is the author of  MacCarthy on Cross-examination.

Why is cross-examination so difficult to master?

The difficulty lies in the state of the art. How cross-examination is taught and what is being taught, is not particularly good.

Cross-examination, as I see it, has gone through three major stages. If you read the cross-examinations by the greats of past years, their style and method was all wrong—they were using questions; asking open ended questions of witnesses.

Somewhere around 1970, either NITA or the National Criminal Defense College, perhaps a combination of both, changed us and we went to a second style: the traditional leading question— “You went to the store, isn’t that correct?”

The current problem is that lawyers are still using one or a combination of these two methods.

There is a new, third method. The use of simple statements: “You went to the store.” This is much more efficient, and particularly helpful in telling your story.

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In your book, you mention that Perry Mason is a wonderful actor, but a terrible cross-examiner. What do you mean by that?

The way he cross-examines is not correct. Perry Mason asks open-ended questions of witnesses. He can get away with it because he’s writing his own script and the witnesses cooperate; but the style he uses leaves much to be desired.

How do you win over jurors and overcome their preconceived notions about trials?

The first thing a trial lawyer must do is learn to communicate—it is the most important trial skill. The next step is to get the jurors to like you. If you do that, they will give you the greatest gift imaginable: the gift of credibility. In other words, they will believe what you say. If you do not have credibility, you should think about getting your case settled.

How do you build that credibility? Be honest. You have to treat not only the jurors but everyone in the courtroom with respect. If you do not, they will perceive it.

Lastly, communicate properly with the jury. Look them in the eyes. How about smiling? Also, you must pay attention to your body language. It is essential.

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How can a lawyer use body language and how is it useful? What is the number one body language mistake you see lawyers commit in the courtroom?  

The number one mistake is not using enough body language. There have been exhaustive studies done on body language. It is necessary to tell a story, and that is what you do in cross-examination—tell a story. In doing so, you must “paint pictures.” The way you do that is not only through words, but you do it with your body, as well.

Some lawyers shy away from using a blackboard in the courtroom. In your opinion, it’s a great strategic tool. Why should lawyers consider using one?

A trial lawyer should use anything that aids communication. Any sort of demonstrative evidence or equipment aids communication. Today people are into Powerpoint and other tools. I am old fashioned and still like the blackboard—it is much easier to use and it always works.

There is magic in the simple, ordinary blackboard. When we were very young and impressionable, we saw teachers as all knowing.  We took what they said as the word of God. Where did they put that information? On a blackboard! We can still smell the chalk dust in our nostrils. The blackboard is a great device in the courtroom.

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One issue of concern to defenders is media access to court. What are your thoughts on achieving a fair trial and allowing press access?

That’s a very good question and a difficult one to answer! You have two conflicting constitutional rights: the freedom of the press and the right of a defendant to a fair trial. Both must be preserved. Actually in most cases this is not a problem.

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