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25 UCLA L. Rev. 547 (1977-1978)
A Practical Approach to Cross-Examination: Safety First

handle is hein.journals/uclalr25 and id is 563 raw text is: COMMENTARY A PRACTICAL APPROACH TO CROSS-EXAMINATION: SAFETY FIRST Paul B. Bergman* INTRODUCTION Cross-examination is the greatest legal engine ever invented for the discovery of truth.' This shibboleth has become the watch- word of the American trial system. Indeed, the admissibility of certain evidence may turn solely on whether the adversary will be able to subject the evidence to cross-examination.2 Whether cross- examination is theoretically the most important portion of a trial is still open to debate.3 What seems clear, however, is that in most litigation, cross-examination does not emerge as the greatest en- gine it is said to be at least partly because most litigators perform less effectively during cross than during the other phases of a trial. Although there are a number of reasons for the difficulties encountered by attorneys during cross, perhaps the most significant is the pervasive vision of cross-examination as an art.4 This image of cross-examination, created by television, fiction and attor- ney war stories, seems to suggest that the ability to do an effective cross is either innate or nonexistent. This view of cross, rather than spurring attorneys on to greater preparation, tends to beguile them into spontaneous, off-the-cuff cross-examinations. A second reason for the reduced effectiveness of cross is that an attorney may feel less prepared to conduct cross-examination than she does to conduct the other two major trial phases, direct examination and closing argument. The witness who must be cross- examined is generally not one with whom the attorney has had a chance to sit down ahead of time and plan the testimony. In addition * Adjunct Professor of Law, University of California, Los Angeles. 1. 5 J. WIGMORE, EVIDENCE § 1367 (3d ed. 1940). 2. See, e.g., People v. Bob, 29 Cal. 2d 321, 175 P.2d 12 (1946); Official Comment to CAL. EVID. CODE § 1203 (West 1966). 3. H. SPELLMAN, DIRECT EXAMINATION OF WITNESSES vii (1968). 4. Indeed, one of the most popular texts on cross-examination ever written is entitled The Art of Cross-Examination. F. WELLMAN, THE ART OF CROSS-EXAMI- NATION (4th ed. 1948).

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