How I Cross-Examine in a Massachusetts Criminal Case

By Attorney Joe Serpa | Georgetown University Law Center | 30 Years Massachusetts Criminal Defense

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: 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.

How I Carry Myself

The first thing a jury decides is whether it trusts the lawyer. Long before they weigh a single answer, they have formed a view about whether I am fair, whether I am prepared, and whether I am wasting their time. 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. When a witness 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. When I do cross, I go to the two or three points that matter and I sit down. A short examination that lands 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.

Before I confront a witness with anything, I close the exits. If I intend 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 truth mattered. 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 my best material: the statement to the officer at the scene, the 911 call, the grand jury testimony, the account given at a probable cause or dangerousness hearing, 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. A statement made under oath before a grand jury or at an earlier hearing can be admitted for its truth, not merely to show the witness is unreliable.

Silence counts as well. If a witness offers a detailed account on the stand but left the same detail out when the police first asked, I can use that omission, because a real memory of something important tends to surface the first time. 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.

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 now describes as frightening can end the matter. Before I can use a message, I have to be able to prove who wrote it, because a name on an account is not proof by itself, so I build that foundation ahead of time through the witness, the phone records, or a custodian.

And I know when to stop. Most cross-examinations are lost by running too long. Once I have the admission I came for, I leave it alone 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 gives the cross-examiner more room than most states. I may question a witness about any matter relevant to the case, including anything that bears on credibility, and I may lead. A judge controls the length and the tone, but the door to a proper subject may not be closed on me.

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 matter of the judge’s grace. Davis v. Alaska, 415 U.S. 308 (1974); Commonwealth v. Joyce, 382 Mass. 222 (1981). 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. 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, a power that matters most 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.

Confrontation limits what the Commonwealth may prove on paper. A statement made out of court for use against my client generally cannot come in unless the person who made it takes the stand and answers for it, which puts that person in front of me for cross-examination. Crawford v. Washington, 541 U.S. 36 (2004). In domestic cases that fight often turns on whether an accuser’s 911 call or excited utterance can be used when the accuser does not appear, which I take up in a separate post on the Confrontation Clause and forfeiture by wrongdoing. That applies to the crime laboratory: a certificate of drug or alcohol analysis does not stand on its own, and the analyst who performed the testing has to appear. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Where the prosecution would prefer to hand the jury a document, confrontation hands me a witness instead.

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. Where an officer has a sustained finding of a false report or other dishonesty, that history can be fair impeachment, and the rules requiring the Commonwealth to disclose 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.

When the case 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, and the jury is entitled to the full arrangement, including the exposure the witness faced before the bargain and the exposure that remains. Commonwealth v. Ciampa, 406 Mass. 257 (1989). 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: the lighting, the distance, the few seconds the witness truly had, the presence of a weapon that pulls the eye, the stress of the event, 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 now 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 complaining witness is usually the whole case, 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, subject to the rape shield statute that otherwise keeps sexual history out.

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 or 258E Hearing

A restraining order hearing 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 carry 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, and the rules of evidence apply flexibly, so the judge may consider reliable hearsay, including the sworn affidavit filed with the application. Mass. G. Evid. § 1106; Frizado v. Frizado, 420 Mass. 592 (1995). What the relaxed rules do not do is remove my client’s right to confront and question the person who sought the order, and 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 order demands abuse between family or household members, which the statute limits to attempting to cause or causing physical harm, placing a person in fear of imminent serious physical harm, or coercing sexual relations by force, threat, or duress. G.L. c. 209A, § 1. Discomfort, anger, and the fear of a future argument are not abuse. A 258E order demands harassment, which the statute defines as three or more separate acts of willful and malicious conduct aimed at the person and intended to cause, and in fact causing, fear, intimidation, abuse, or damage to property. G.L. c. 258E, § 1. Where those acts are words, the Supreme Judicial Court has held that only true threats or fighting words qualify, because ordinary speech is protected. Commonwealth v. O’Brien, 461 Mass. 415 (2012). A single ugly message, or a course of contact that never becomes a threat, does not meet the 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: a pending divorce, a custody dispute, a fight over the house, or an immigration benefit that turns 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: the texts and calls that show ordinary, friendly, or continuing contact on the very days the petitioner now 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 now, on the day the divorce was filed or the custody motion was served.

One caution shapes the whole hearing. If my client also faces a related criminal charge, any testimony my client gives on the stand can be used against them in the criminal case. 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 restraining 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. By the time a witness takes the stand, I know the answers to the questions I am going to ask, and I do not ask the ones I cannot predict.

If you are facing a criminal charge or a restraining order in Massachusetts, the cross-examination of the witnesses against you may be the most important thing that happens in the case. Contact me at 617.936.0201 for a confidential consultation.