Guest Author: Larry Pozner, Pozner on Cross

Larry Pozner is a leading authority on cross-examination. Pozner’s book Cross Examination: Science and Techniques (soon to be printed in its 4th Ed., Pozner and Dodd) and his seminars Pozner on Cross: the Chapter Method revolutionized our profession’s view of the purposes and methods of modern cross.

Larry Pozner is a lecturer, author, and trial consultant. He is a Past President of the National Association of Criminal Defense Lawyers and began his career as a Colorado Public Defender. Pozner was trial counsel for more than a decade for the Denver Broncos franchise and its owner, Pat Bowlen. Larry’s books and course recordings can be found online here.

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

Modern cross considers the oppo-nent’s witnesses as potential sources of favorable facts that are to be believed. Constructive cross-examination chap-ters (1) use leading questions (2) posed to a witness whom 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 convert the prosecution’s witness into the defense’s witness in selected areas.

The likely sources of constructive cross chapters are facts left out of the prosecution direct examinations or facts minimized in the direct. Our chapters teach the jury that there are facts bear-ing on reasonable doubt that they are now hearing. Our constructive chapters are ordinarily an easy part of cross because our questions call for admissions to facts the witness knows to be true and has no safe way of successfully denying. 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.

One advantage of constructive cross 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. Another advantage of constructive cross chapters is that the factual admissions of prosecution witnesses can prove facts we would otherwise need to obtain from defense witnesses.

Example: Defendant is accused of burglarizing his former employer. A grainy video shows 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 and knew the safe code. These suggest an inside job. However, indisputably, after our client quit, the former employer changed the safe code. Leading questions that center around the change of the safe code do not impeach the credibility of the witness. Instead, they build on it.

Fact: No prosecution witness can recall any contacts with the defendant after he quit.

Constructive chapter bundle on lack of contact: We will need a chapter establishing when the 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.

Fact: The safe code was changed. In constructive cross in the chapter method, we build stories around these two central facts. What are the stories we can construct, and through leading questions expand the importance of these central facts, leading to reasonable doubt?

Constructive chapter bundle on changes to the safe code: We show the sophistication of the lock. We list those who had knowledge of the safe code now and when the defendant worked there. We build a chapter on when and why the code was changed, and how many times. For example, was the code always changed after anyone knowing the code left the company? Regardless of resignations, was the code changed on a periodic basis? We draft a chapter showing the code changing procedures were the company’s practice when the defendant worked there. These chapters drive direct evidence or a strong inference that the defendant would have known that after he quit, the safe 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. How many people knew the current code? Forced entry may mean this was not an inside job.

Result: We ask tightly worded leading questions calling for the wit-nesses to admit facts they believe to be true. The prosecution cannot successfully argue that its witnesses are not to be believed. Our constructive cross has transformed these witnesses into defense witnesses on critical issues.

© 2023, Larry Pozner. All rights reserved. Published on the LESA blog with permission.

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How you prepare for trial, lead evidence, get the admissions you need, and help the trier of fact understand your theory of the case is critical. Learning the art of examination, developing skills and techniques, and understanding how to integrate them will build your trial confidence and competence. Learn from Larry Pozner at our upcoming two-day “Fall Conference 2026: Litigation” in Kananaskis from October 2-3, 2026. This conference is intended for all litigators, regardless of experience level or practice area focus. Registration is available.