How I Cross-Examine in a Massachusetts Criminal Case

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

Cross-examination is the one part of a criminal trial that belongs to the defense. The Commonwealth picks its witnesses, prepares them, and walks each one through a direct examination built to sound convincing. Then the witness is handed to me. What I do in the next few minutes often decides the case, because it is the only point in the trial where the story the prosecution has assembled meets someone whose job is to test it.

The right to that moment is constitutional. The Sixth Amendment and article 12 of the Massachusetts Declaration of Rights promise my client the chance to meet and question every accuser. What follows is how I use that right in practice. I describe how I carry myself, how I frame my questions, what the law permits me to do with a witness, and how the work changes from one kind of witness to the next.

For the statutes and the full line of cases behind each point, I keep a companion practice page on cross-examination in Massachusetts criminal trials that lays out the authority in detail.

I have written separately about how I pick a jury, which is the stage that decides who hears the cross-examination.

I have also written about how I open a Massachusetts criminal trial, which sets up everything I do on cross.

How I Carry Myself

The first thing a jury decides is whether it trusts the lawyer. The jurors have formed a view about whether I am fair, whether I am prepared, and whether I am wasting their time long before they weigh a single answer. Everything I do on cross-examination is shaped by that judgment, because I am spending my client’s credibility with every question.

So I am courteous to the witness, even to the one I intend to take apart. Aggression is a gift to the other side. A witness who feels attacked stops cooperating, argues with every question, and gives the jury a reason to feel protective. A witness treated with respect settles down and agrees to the ordinary, true facts that a good cross is built from, one at a time, without seeing where the questions lead.

I do not raise my voice, I do not argue with the answer, and I never let the jury see that I want it too badly.

I respect the jury’s time in the same way. I do not cross every witness. With a witness who has not hurt my client, I often have nothing to gain and I say I have no questions, which itself tells the jury I am unworried. With a witness I do cross, I go to the two or three points that help my client and I sit down. A short examination that makes its point is worth more than an hour that only muddies the water.

How I Frame the Questions

The mechanics are easy to describe and hard to do. Every question I ask on cross is a short statement of a single fact, phrased so that the only honest answer is yes. I do not ask a witness what happened. I tell the witness what happened, one small piece at a time, and ask for agreement. Control comes from holding each question to one fact, never inviting the witness to explain, and never asking the extra question that lets a witness take it all back.

I close the exits before I confront a witness with anything. To prove a witness said something different before, I first have the witness repeat, firmly, the account given on direct, so there is no room to wriggle when I produce the earlier words. Then I establish that the earlier statement was made when the events were fresh, to someone official, in a setting where the witness had reason to tell the truth. Only then do I show the contradiction. Taken in that order, the inconsistency is beyond repair by the time the jury sees it.

The witness’s own prior words are more useful to me than any other material. Those words appear in the statement to the officer at the scene, the 911 call, the grand jury testimony, and the account given at a probable cause or dangerousness hearing. They also appear in a deposition in a related civil matter and, in a domestic case, the affidavit filed with a restraining order application.

Some of those statements do more than impeach. Grand jury testimony can be admitted for its truth, but only on conditions the SJC set out in Commonwealth v. Daye, 393 Mass. 55 (1984). The witness must be on the stand and able to be cross-examined about the statement, which a witness with a genuinely blank memory cannot be. The words must be the witness’s own, not a yes to a prosecutor’s fact-filled question. The witness must have seen the events firsthand.

And the Commonwealth must have other evidence on the point, because no conviction may rest on the grand jury statement alone. That last rule is the one I use. A recanting witness’s grand jury testimony cannot prove the case by itself when that testimony is all the Commonwealth has.

Testimony from an earlier hearing where the witness was cross-examined stands on firmer ground. Probable cause hearing testimony can come in for its truth without corroboration where a judge finds the witness is faking memory loss. Commonwealth v. Sineiro, 432 Mass. 735 (2000).

Silence counts as well. I can use an omission if a witness offers a detailed account on the stand but left the same detail out when the police first asked, because a real memory of something significant tends to surface the first time. The law puts one condition on it. The omission counts as an inconsistency only where it would have been natural to include the fact in the earlier statement. Commonwealth v. Ortiz, 39 Mass. App. Ct. 70, 72 (1995).

That is why I lay the groundwork with care, establishing that the witness had every reason and every chance to be complete, before I point to what was missing.

The same doctrine runs the other way. A prosecutor who wants to impeach a defense witness for never bringing the story to the police must first lay a three-part foundation, and I hold them to it. Commonwealth v. Hart, 455 Mass. 230, 238 (2009).

I build as much as I can on the record, because paper does not get nervous and change its story. Text messages, emails, call logs, photographs, and medical records often settle a dispute that the witnesses cannot. In a domestic case, a string of warm or ordinary messages sent on the very days an accuser later describes as frightening can end the matter.

I have to be able to prove who wrote a message before I can use it, because a name on an account is not proof by itself. Commonwealth v. Purdy, 459 Mass. 442 (2011). So I build that foundation ahead of time through the witness, the phone records, or a custodian. An argument that someone else had the phone goes to weight once the foundation is in, and I make that argument to the jury rather than fight it at the bench.

And I know when to stop. Most cross-examinations are lost by running too long. I leave the admission I came for alone as soon as I have it, before the witness can undo it, and I save the argument about what it means for closing, where the witness can no longer answer.

What the Law Lets Me Do

Massachusetts lets me question a witness about anything material to the case, including anything that bears on credibility, and I may lead. The examination is not confined to the subjects the prosecutor raised on direct. A judge controls the length and the tone, but the judge may not bar me from a proper subject.

The subject I guard most closely is bias. Anything that gives a witness a reason to color the testimony is fair ground, and the right to expose it is constitutional, not a favor the judge may grant or withhold. Davis v. Alaska, 415 U.S. 308 (1974); Commonwealth v. Joyce, 382 Mass. 222 (1981).

The right comes with one condition. I must make a plausible showing of the bias, with a factual basis behind it, or the judge may cut the inquiry off. Commonwealth v. Sealy, 467 Mass. 617, 624 (2014). So I never argue bias in the air.

Bias can be a plea deal, an old grudge, a civil lawsuit riding on the outcome, a custody fight, an immigration benefit, or an officer’s stake in an arrest already made. For an immigration motive, the required first step is establishing that the witness has discussed status with the police or the prosecutor. Without that predicate the judge can exclude the subject. Commonwealth v. Chicas, 481 Mass. 316 (2019).

After the showing, I am entitled to lay those facts in front of the jury and let them measure the motive for themselves.

Beyond motive, the law hands me several tools. A witness can be impeached with a prior conviction, within the time limits the statute sets and subject to the judge’s power to exclude a conviction that is more prejudicial than probative. The judge exercises that power most readily when the prior offense resembles the charge on trial. G.L. c. 233, § 21. A witness can be impeached with a poor reputation for truthfulness, though Massachusetts allows that through reputation in the community, not through a march of individual bad acts.

And impeachment does not make good-character evidence admissible for the other side unless the impeachment attacks the witness’s character for truthfulness, for example with a prior conviction or a poor reputation for truthfulness. Contradicting a witness, or confronting one with a prior inconsistent statement, is not an attack on the witness’s character, so it does not entitle the Commonwealth to rehabilitate with good-character evidence. Commonwealth v. Sheline, 391 Mass. 279 (1984). Gertz v. Fitchburg R.R., 137 Mass. 77, 78 (1884).

Confrontation limits what the Commonwealth may prove on paper. A statement made out of court to build the case against my client is what the law calls a testimonial statement. A testimonial statement generally cannot come in unless the person who made it takes the stand and answers for it, or is unavailable after I once had a full chance to cross-examine. Crawford v. Washington, 541 U.S. 36 (2004).

Statements that are not testimonial, a true emergency 911 call for example, fight only the ordinary hearsay rules. In domestic cases that fight often depends on whether an accuser’s 911 call or excited utterance can be used when the accuser does not appear. I take up that question in a separate post on the Confrontation Clause and forfeiture by wrongdoing.

The same principle covers the crime laboratory. A certificate of drug or alcohol analysis does not stand on its own. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). And after Smith v. Arizona, 602 U.S. 779 (2024), a substitute expert cannot deliver an absent analyst’s findings dressed up as an independent opinion. The Supreme Judicial Court applied that rule to Massachusetts trials in September 2025. Commonwealth v. Gordon, 496 Mass. 554 (2025).

The right must be claimed, though. The burden is on the defense to object to the certificate or to the substitute expert’s testimony. A lawyer who never objects leaves the confrontation claim unpreserved, so an appellate court generally reviews the claim only for a substantial risk of a miscarriage of justice. Confrontation hands me a witness where the prosecution would prefer to hand the jury a document.

The Witnesses I Cross-Examine

The method holds from one witness to the next. The material is what changes, and each kind of witness has its own openings.

A police officer is a witness like any other, with two soft spots I return to. The first is investment. The officer built the case, made the arrest, and wrote the report, and no one enjoys being shown wrong about their own work.

The second is the officer’s record. A sustained finding that an officer made a false report or engaged in other dishonesty can be fair impeachment where the officer’s credibility is a critical issue in the trial. The judge weighs how old the misconduct is, how cleanly it can be proved, and whether it bears on how the officer conducts investigations. Matter of a Grand Jury Investigation, 485 Mass. 641 (2020).

Disclosure and admissibility are separate questions. The Commonwealth may owe me the record even where the judge later keeps it from the jury, and the rules requiring disclosure of exculpatory and impeaching material give me a route to find it.

I also cross on what the report leaves out, on the distance between what the officer wrote that night and what the officer recalls on the stand, and on every observation that went unrecorded because it never happened. The same method drives how I cross an officer on a field sobriety opinion in an OUI case.

In a case that rests on a cooperating witness or an informant, the deal is the first thing I ask about and the last. Someone testifying in exchange for a reduced charge, a sentence recommendation, dropped counts, or money has every reason to give the prosecutor what the prosecutor wants. I am entitled as of right to question that witness about the pending charges to show the motive for cooperating. Commonwealth v. Connor, 392 Mass. 838, 841 (1984).

A hope of favorable treatment opens the subject even where the Commonwealth has promised nothing. Commonwealth v. Henson, 394 Mass. 584, 587 (1985). The agreement itself is admissible and goes to the jury, and the judge must instruct the jury to weigh that witness’s credibility with particular care. Commonwealth v. Ciampa, 406 Mass. 257 (1989). The judge controls how long I stay on it, but the deal itself cannot be kept from the jury.

I make the size of the benefit concrete, in years of prison avoided, so the jury can weigh the motive in real terms.

With an eyewitness I do not call the witness a liar, because the honest, confident, mistaken witness is the dangerous one. I cross on how memory works and on the conditions of the identification. Those conditions include the lighting, the distance, the few seconds the witness truly had, the presence of a weapon that pulls the eye, and the stress of the event. They also include whether the witness and the accused are of different races, the time that passed before the identification, and the way the police ran the showup or assembled the array.

Massachusetts instructs juries on the science behind these factors, which gives my cross a foundation the jury has been told to take seriously. Commonwealth v. Gomes, 470 Mass. 352 (2015).

In a domestic violence or sexual assault case the Commonwealth’s proof usually depends entirely on the complaining witness, and I cross with discipline, because a jury will punish an examination that looks like an attack on a victim. I press motive to fabricate, a pending divorce, a custody dispute, a fight over money or an apartment, or an immigration benefit that depends on being recognized as a victim, such as a U visa. I put the accuser’s prior statements beside the testimony and mark every difference, and I use the message record that shows the relationship as it truly was.

In the narrow cases where the law allows it, a demonstrably false prior allegation of the same kind of offense is fair ground. The rule allowing that questioning is narrow and separate from the rape shield statute. The rape shield statute, G.L. c. 233, § 21B, covers a complainant’s sexual conduct and reputation. Prior false accusations sit outside it. Commonwealth v. Bohannon, 376 Mass. 90 (1978).

A judge permits questioning about a false prior allegation only with independent third-party records showing that the earlier accusation was made and was false, in a case where the complainant’s testimony is the heart of the Commonwealth’s proof. Without those records, the offer of proof fails and the voir dire ends it. Commonwealth v. Blair, 21 Mass. App. Ct. 625, 629 (1986).

With an expert I cross the foundation, not the diploma. I make the expert lay out the facts and assumptions the opinion rests on and then test each one, because an opinion is worth no more than what went into it. I ask what the expert was given and what the expert was never shown, what the method can and cannot establish, what its error rate is, and what the expert was paid to appear.

Cross-Examination in a 209A Restraining Order or 258E Harassment Prevention Order Hearing

A hearing on a restraining order or a harassment prevention order is not a criminal trial, but for my client it can be nearly as costly. A 209A abuse prevention order or a 258E harassment prevention order can take away a person’s home, firearms, and contact with their children, and for a noncitizen it can have immigration consequences of its own. So I cross-examine at that hearing as seriously as I would at trial, even though the rules are looser.

The rules are looser in two ways. The petitioner has to prove the case only by a preponderance of the evidence, not beyond a reasonable doubt. The law of evidence is applied flexibly, taking into account the personal and emotional nature of the issues, subject always to fundamental fairness. Mass. G. Evid. § 1106 (2026); Frizado v. Frizado, 420 Mass. 592, 597 to 598 (1995). My client must have an adequate opportunity to consider an affidavit filed in the proceeding if the judge intends to rely on it. Frizado, 420 Mass. at 597.

What the relaxed rules do not do is remove my client’s right to confront and question the person who sought the order. That right has teeth. The Supreme Judicial Court vacated an order where the judge allowed no cross-examination at all. C.O. v. M.M., 442 Mass. 648 (2004). In a fast hearing with no jury and little time for investigation, that cross-examination is usually the entire defense.

I begin by holding the petitioner to what each statute requires. A 209A abuse prevention order demands abuse between family or household members, and the statute defines abuse four ways. The four ways are attempting to cause or causing physical harm, placing a person in fear of imminent serious physical harm, coercing sexual relations by force, threat, or duress, and coercive control. Coercive control is a category the Legislature added effective September 18, 2024. G.L. c. 209A, § 1.

Coercive control means a pattern of behavior intended to threaten, intimidate, harass, isolate, control, or coerce a family or household member that causes a reasonable fear of physical harm or a reduced sense of physical safety or autonomy. The statute’s examples run from isolating a person from family and friends, to controlling their finances, communications, or movements, to threatening to publish sensitive personal information.

A petition built on coercive control changes the cross, because my questions must meet a pattern theory rather than a single incident. Discomfort, anger, and the fear of a future argument are still not abuse.

A 258E harassment prevention order demands harassment, and the statute gives the petitioner two definitions. The first requires three or more separate acts of willful and malicious conduct aimed at the person, each intended to cause fear, intimidation, abuse, or damage to property. The acts as a whole must in fact cause one of those harms.

The second requires a single act of sexual coercion by force, threat, or duress, or a single act that violates any of the listed criminal statutes, stalking and criminal harassment among them. G.L. c. 258E, § 1. I check which definition the petition uses before I plan the cross.

The Supreme Judicial Court has held that only true threats or fighting words qualify where the claimed acts are words, because ordinary speech is protected. The fear that counts is fear of physical harm or damage to property. O’Brien v. Borowski, 461 Mass. 415 (2012), abrogated on other grounds by Seney v. Morhy, 467 Mass. 58 (2014). A single ugly message, or a course of contact that never becomes a threat, does not meet the three-act standard, and I make the petitioner concede that on the record.

From there, the cross-examination is much the same as the cross I would run against a complaining witness in a criminal case, because it is usually the same person telling the same story. I press the motive, such as a pending divorce, a custody dispute, a fight over the house, or an immigration benefit that depends on being a victim. I set the affidavit next to the testimony and mark every place they differ, because the affidavit was written days earlier and the account has a way of improving.

I use the record of the texts and calls that show ordinary, friendly, or continuing contact on the very days the petitioner later calls frightening. I ask why there was no call to the police, no report, no photograph, and no injury, if the events happened as described. And I ask why the order is being sought on the day the divorce was filed or the custody motion was served.

One caution shapes the whole hearing. With a related criminal charge also pending, any testimony my client gives on the stand can be used against them in the criminal case. Silence has a price of its own in this civil hearing. The judge may draw an adverse inference from my client’s decision not to testify, though that inference alone cannot meet the petitioner’s burden.

Frizado v. Frizado, 420 Mass. 592 (1995). So I decide in advance whether my client testifies at all, and I aim to win the hearing on the cross-examination of the petitioner without taking that risk. The hearing on the order and the criminal case are defended as one matter, not two.

Preparation Wins It

Everything above depends on work done before I stand up. I read every report, every statement, every message, and every prior transcript, and I chart the contradictions in advance, because a witness who surprises me has already won the exchange. I know the answers to the questions I am going to ask by the time a witness takes the stand, and I do not ask the ones I cannot predict.

The cross-examination of the witnesses against you in a Massachusetts criminal case or restraining order hearing may affect the outcome more than anything else that happens in the case. Contact me at 617.936.0201 for a confidential consultation.