Some Useful Tips for Cross Examination
Cross-examination is a difficult art and requires considerable practice. Lawyers employ a number of techniques to hone their skills and improve. This article should serve as a guide for those who seek to cross-examine, whether you’re a self-represented litigant or someone seeking to learn more about the art. The following information is not exhaustive and as every legal matter is unique and nuanced you should rely on the advice of a qualified and experienced legal representative regarding your own matter.
After a witness gives their evidence in chief orally or by way of their affidavit being read onto the record they are then cross-examined by the opposing party or their representative, provided of course the opposing party or their representative has a need to cross-examine them.
Part of what makes cross-examination so difficult is that people can be difficult. We are dynamic, unpredictable beings (to some degree) and it can be difficult to anticipate the answer that one will get in cross-examination when a question is asked. The wrong question or the wrong answer can have a devastating impact on a party’s case.
A very skilled barrister once told me that his approach to cross-examination was follows:
1. To Put;
2. To Blunten; and,
3. To Get.
The first fundamental requirement referred to (I don’t rank them in terms of importance) according to my colleague is to put your client’s case to the witness and give them an opportunity to respond. This can assist in drawing out answers that you require, helping your case but there is also a legal requirement to do this as a matter of fairness. Lawyers refer this to as the rule in Browne v Dunn. The rule as stated by the Court in Browne v Dunn (1893) 6 R 67 is as follows:
“It is a rule of practice in both civil and criminal trials that if one party is going to assert a different version of events from the other, witnesses for the opposing party who are in a position to comment on that version should be given, by the cross-examiner, the opportunity to do so.”
The second requirement referred to above is to ‘blunten’. I don’t actually think that ‘blunten’ is a word, but if tried to use another synonym the meaning conveyed to me would no doubt be lost. As a cross-examiner we want to wear down or make our opponents evidence blunt. To take the meaning out of it, its strength, thrust or power. I will discuss some useful techniques to use in cross-examination shortly.
The third point referred to is, ‘To Get’. You want to get information out of a witness or put another way elicit responses from them that help your case. Simply saying to a witness, “I suggest to you sir…. Xyz” in itself isn’t the best means of eliciting information. But it’s a phrase that us lawyers use and will continue to use for many reasons which may be to some degree explained within this article.
The bottom line is, you want to get the answers that you want in cross-examination. So although I refer to some approaches and techniques, there is no one size fits all. One witness may require you to be overly polite and to coax them into agreeing with your propositions whilst another may call for a more commanding cross-examiner. No boxer should only limit their boxing skills to brawling, just like no boxer should ever limit their skills to understanding and employing technical ability. The best fighters are three (3) dimensional and can employ strategies and approaches that suit their opponent on the day in the moment.
I impart the following solely to invoke thought and to give you something to think about when you consider how you will approach your witness.
Starting Your Cross – Position Yourself As An Authority
In my view, often it is important to position yourself as an authority from the beginning of your cross-examination. Being too aggressive or vigorous can invoke sympathy from the bench or a jury and may damage your case.
Consider using your first five questions to ask about matters that you are sure of the answers to in a direct and commanding manner. Get your witness used to agreeing with you and saying, “yes”. Show the witness that you know the answers already. Again, it may work for some and not others.
There are also times where perhaps your approach is to appear as though you don’t really understand or know the true facts of the case. Perhaps you as the advocate unbeknownst to the witness has a document (like a transcript for example) that will be tendered or referred to later in cross-examination. Perhaps you want the witness to think you don’t know about this transcript and what the witness has previously said to someone else in an effort to elicit a response from them that is inconsistent. Again, the strategy you use is up to you, I say this to invoke thought and push my perspective, that you should be a three dimensional cross-examiner.
Nip Vague Answers In the Bud
Witnesses who are evasive can often say things like, “it could be”, “maybe I don’t know”, “I wouldn’t know I can’t speak for them”. Evasive witnesses want to have it both ways. They seek to hedge their bets and leave things open. If the issue is important to the case, don’t let the witness wander and fizzle a pointed question. Start again, break your question down and take baby steps to establish a lead up to your proposition again if need be. This leads me to my next point.
Lay the Foundation – Lay the Groundwork – Become a Builder
A simple example would be, you seek to establish that your witness did not see the event or had limited vision. Your ultimate proposition would be, “you didn’t see what happened” or “you couldn’t have seen what happened”. Asking that ultimate proposition may be necessary (even if you know you won’t get the answer you want) so that it can be relied upon in closing address or to highlight the absurdity of a witnesses proposition. But before you get there, ask short pointed leading questions that build upon simple small bricks, one brick laid per question. “You were standing 30-35 metres away”, “you were tending to your children”, “given the time it was twilight”, “being a time where light fades and our vision constantly adjusts”, etc. Your questions should be punchy you should get into a rhythm with the witness and you should considering asking leading questions only.
Also, more often than not, it is important to ask the question which sits at the pinnacle of your line of questioning. It is the climactic and obvious question that you have built up to. Even if the witness does not agree with your proposition, if your build up is effective, their ultimate disagreement may seriously call into question the witnesses readiness to be truthful with the court. The ultimate/climactic question can also be referred to in closing address. If it is not put, you risk having your opponent suggest in closing that you skirted around the issue or didn’t ask the important question.
Only Ask Leading Questions
If you’ve ever seen a video of a well known American advocate called ‘Irving Younger’ you will see that one of his commandments is to always use leading questions in cross-examination. This is true to some degree, however in my view, open ended/non-leading questions asked in cross-examination can not only be powerful and persuasive, but they can catch people out on lies.
An example would be where you have objective evidence, such as CCTV, skid marks on a road, or say an injury, and you ask the witness a question to something you already know the answer to which will not/could not be otherwise. Perhaps you anticipate the witness will lie to, to make themself look better. It may be a waste of a great opportunity to diminish credibility by simply going to the objective evidence and saying, “the skid marks and the experts interpretation of them suggests that you only hit the breaks when you were 1 metre from my client’s car” and then, “that is because this is when you breaked”. Consider laying the foundation for an answer that gives the witness the opportunity to lie about something that will be contradicted by objective evidence. Be careful with this approach though, it can seriously backfire if not done correctly.
Summarise a Series of Absurd or Doubtful Assertions In Cross Examination
You may have laid the foundation and built your building blocks in relation to a number of relevant issues, calling into question the absurdity of various propositions put by a witness.
Consider then, when cross-examining on another critical issue and receiving an answer that you do not want or a refusal to accept an important proposition put by you, to summarise the absurdity of other answers/propositions given by the witness.
When eliciting a lie, it can be useful to engage a jury or judicial officer by saying, “tell His Honour xyz”. It is a powerful way of politely inviting the judicial officer or jury to, “listen to this answer”. Ultimately, it will be the jury or the judge who makes the decision, you as an advocate owe a paramount duty to serve the court.
Other useful tips include:
1. Don’t argue with a witness or answer their questions.
2. Be persistent and put a proposition more than once if need be.
3. Build momentum & a rhythm.
4. Control the witness. Tell them to answer with a yes or no. Stop them if they don’t answer the question; remind them what the question was.
6. A much more experienced and learned cross-examiner than I once said, “don’t go back for your hat”. Meaning, once you have the answer that you want, move on.
7. Prepare your cross-examination and visualise the different responses you may receive and how you will adjust to them.
8. Don’t over prepare and strictly stick to a script. By doing this you may not listen to the answers given in Court. A witness may depart from their affidavit or statement in court. You need to pick up on these inconsistencies and be prepared for them.
9. Have an intimate understanding of the evidence that is to be relied upon by both sides.
I trust that this article has proven to be helpful and thought provoking. As stated, it is not intended to be an exhaustive guide to cross-examination by any stretch but merely a means by which one can consider different techniques.
As an experienced Sydney Barrister, Leon sees himself cross-examining in various jurisdictions frequently. He can be contacted on 0410 808 885 for any questions arising or to discuss your legal needs.
Disclaimer: This article is intended solely for research purposes and should not replace the advice or representation provided by a qualified and experienced legal practitioner. The author does not claim any responsibility for any such reliance.