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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
Paul B. Bergman*
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).
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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