NOVEMBER 2025 | 21 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Editor’s Note: This article provides case studies that discuss real-world examples of language readers may find offensive or traumatizing. All trial lawyers anticipate and enjoy cross-examination, although it rarely plays out as dramatically as television and movies portray. This article focuses on impeachment through cross-examination and the introduction of evidence. The Sixth Amendment and OK. Const. Art II, §20 provide every criminal defendant the right of confrontation. The Supreme Court reaffirmed the sacred right of confrontation in Smith v. Arizona1 by prohibiting the use of forensic analysis tests without an expert testifying, emphasizing that the jury determines the credibility of the testing through the “crucible of cross-examination.” The goal of cross-examination is not to embarrass the witness or engage in character assassination but for the jury or judge to question whether the witness was truthful and whether the witness was right. CREDIBILITY For the jury to determine the credibility of witnesses, the court tasks them with considering the witness’s bias, prejudice or interest in the outcome of the litigation, their memory, how the witness developed personal knowledge or observed the facts their testimony concerns, their consistency with previous statements and their demeanor.2 Though the court does not give this instruction unless an actual eyewitness testifies, OUJI-CR(2d) Instruction No. 9-19 provides several lines of inquiry to cover: 1) Did the witness have ample opportunity to observe? Considering factors such as lighting conditions, distance, duration, stress of the moment and prior dealings with the person. 2) How positive is the witness on the identification? 3) Did the witness previously fail to identify the witness? 4) Was their description of the person or thing accurate? 5) Did they describe the suspect before police showed them a person, picture or lineup? 6) Did police show them one person or several people or one picture of multiple pictures? The court developed the eyewitness identification instruction from Manson v. Brathwaite3 to help combat the problems of suggestible lineups; however, the police rarely use lineups but rather show them a single person or photograph. Remember, credibility is always primary, never secondary, and it is always allowed on cross- examination, despite the other party’s objections, so do not cower. IMPEACHMENT The jury instructions explain to jurors that the introduction of impeachment evidence is for the jurors to determine if it affects the believability of the witness, not for substantive proof of guilt or liability in a cause of action.4 A common way of impeaching a witness includes the use of prior convictions under Oklahoma law, but a trial lawyer needs to understand the limitations under this “The art of cross-examination is not the art of examining crossly. It’s the art of leading the witness through a line of propositions he agrees to until he’s forced to agree to the one fatal question.” – Clifford Mortimer
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