Prosecutor’s Guide: 2 Ways to Improve Concession-Based Cross-Examination

There is a variety of strategies prosecutors employ during the cross-examination of witnesses. One way to bolster the State’s case is to get testimonies on facts that help establish the version of the prosecutor’s story.

Keep in mind that the objective of a concession-based examination is to elicit useful information from the mouths of the defense witnesses. When the witness agrees to a fact that was previously disputed or adds facts that help establish the State’s theory, then the prosecutor has fulfilled this objective.

Today, David Serna discusses how to devise concession-based inquiries effectively. Let’s take drunk driving, for instance.

1. Reiterate important facts established by the State

This is one way to make the jury remember the story or theory the state is establishing. Remembering the facts is crucial during the deliberations.

In the above example, the prosecutor’s questions must be geared toward establishing that the driver was intoxicated while driving. This may be done by first proving that there was an event or celebration the day the defendant was arrested or reprimanded. By ascertaining that there was a gathering, the prosecutor is able to paint a picture in the minds of the jury that there may have been drinks during the party.

2. Listen to new or alternative facts that may be beneficial to the prosecution

David Serna advises new prosecutors to listen carefully during the direct examination. From the information the prosecutor gains during direct, he can ask the witness to elaborate further during cross. In the previous example, the defense witness may deny that the defendant drank alcohol but instead offered an alternative explanation.

Sometimes, the alternative explanation offered by the defense creates a loophole to its theory. By asking more about the alternative facts, the prosecutor is able to point out inconsistencies to the story of the defense.

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