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Constructive Cross-Examination vs. Destructive Cross-Examination: What’s the difference?

March 31, 2023 (4 min read)
Empty courtroom witness stand

By Larry Pozner | Co-Author, Cross-Examination: Science and Techniques

What are the different types of cross-examination? 

There are two types of cross-examination: Constructive cross-examination and Destructive cross-examination. 

Constructive cross-examination builds the client's theory of the case, while deconstructive cross-examination damages a witness's credibility.  

More on this can be found in Larry Pozner and Roger J. Dodd’s nationally known, best-selling title Cross-Examination: Science and Techniques -- a book that’s endorsed by today’s premier trial attorneys and has become the “bible of cross” for lawyers across the country. 

Destructive Cross-examination 

When the goal of a chapter or chapter bundle is to confront a witness with facts designed to show that a prosecution’s witness is not to be believed on important points, or not to be believed in general, we are engaged in destructive cross-examination. That is the popular image and historical view of cross.   

Constructive Cross-examination 

Modern cross considers the opponent’s witnesses as potential sources of favorable facts. Constructive cross-examination chapters (1) use leading questions (2) posed to a witness who the jury regards as either aligned with the opponent or neutral, (3) asserting facts with which the witness will agree (4) that do not challenge the testimony or credibility of that witness. Constructive cross-examination chapters make their witness into our witness in selected areas. 

Is constructive cross-examination better than destructive cross-examination? 

One advantage of constructive vs. destructive chapters is that it relieves the factfinder of difficult credibility judgments.  Destructive cross chapters raise issues of credibility, and we risk losing some of those disputes.  In constructive cross the jury interprets a “Yes” answer from the opponent’s witness as akin to an admission against interest. Jurors logically reason that the witness would express agreement only if the fact we asserted is true.  

The point is not that we prefer constructive cross over destructive cross, but that we look for constructive cross opportunities as we plan our cross.  Most crosses contain both destructive and constructive chapters.  

The likely source of constructive cross chapters are facts left out of the prosecution direct examinations and facts minimized in their direct. Our chapters teach the jury that there are facts bearing on reasonable doubt that they are now hearing.  Our constructive chapters are ordinarily an easy part of cross as our words and voice convey that as to these facts, there is no dispute.   

Constructive Cross-examination Examples 

Example: Defendant is accused of burglarizing his former employer. There is a grainy video showing the profile of the burglar which roughly matches the defendant’s build. The allegation is that the burglar knew how to hide in the business, knew the office key code, and the safe code. These suggest an inside job. However, indisputably, after our client had quit, the safe code was changed.   Leading questions that center around the change of the safe’s code do not impeach the credibility of the witness. Instead, they build on it.  

Cross in the Chapter Method calls on us to think through ways of making the change of the safe’s code into a series of stories of great significance in revealing a reasonable doubt.  One chapter bundle is devoted to the defendant’s lack of contact with the business after the time he quit. We will need a chapter establishing when our client no longer worked at that business. We establish that the client had no further dealings with the business.   

We show that he did not keep up relationships with the employees. Our cross develops that the defendant was never again seen coming to that place of business. The overall takeaway or inference we are seeking from this Chapter Bundle is that the defendant showed no interest in the place of business.  

Our next chapter bundle concerns the safe itself, and most importantly, its locking mechanism. We draft a chapter on the safe’s locking mechanism.  We show the sophistication of that lock. We show who had knowledge of the safe’s code at the time the defendant worked there. We build a chapter on when the code was changed.  We might have a chapter on why the code was changed.  

For instance, was the code always changed after anyone knowing the code left the company, or was the code changed on a periodic basis? We draft a chapter showing that these were the company’s when the defendant worked there. This drives either direct evidence or a strong inference that the defendant would have known that after he quit, the safe’s code would have changed.  We may have a chapter based on how the safe was burglarized. No signs of forced entry mean the thief knew the code. Forced entry means anyone could be a suspect.  

Another advantage of constructive cross chapters is that the admissions of the witness can often alleviate the need to call the defendant or other defense witnesses. 

We ask the leading questions that announce objective facts and reliably we get “Yes” answers, not because of our style, but because we have structured our questions carefully so that the facts we are asserting are true. The prosecution witness is correctly viewed as supporting our case.  

About Larry Pozner 

Larry Pozner is America’s acknowledged authority on cross-examination. His lecture schedule is at Pozner’s and Dodd’s book, Cross-Examination: Science and Techniques, has been America’s bestselling book on cross for more than 25 years.