Cross-Examination
| Author | Peter Lyons |
| Pages | 113-168 |
In popular imagination, cross-examination is the most glamorous part of advocacy. This is because the destruction of a dishonest witness evokes in the audience the feeling that justice has been done. But it is also because the systematic and clever dismantling of the evidence of a witness is a dramatic spectacle.
It is even more exciting if it is gladiatorial and the protagonists are evenly matched. The drama is heightened when the stakes are increased. People love a fair fight and will applaud whoever wins.
The trouble with the popular conception of cross-examination is that it is generally wrong. People think that it is arguing with the witness until he says, ‘I am the murderer.’ That’s TV. Or arguing with the witness until the judge says, ‘No! I am the murderer.’ That’s American TV. Or saying to the witness, ‘You can’t handle the truth.’ That’s Hollywood.
But I want to show you that real cross-examination is none of these things. It is a method of using your opponent’s witness to highlight the good facts of your client’s case and the bad facts of theirs. It is also used to show the omissions in your opponent’s case.
It is all about control. I have heard it said that the cross-examiner is really telling her client’s story, fact by fact, through the mouth of her opponent’s witness.
Some judges are not happy with this definition. They say it is the witness who is here to give evidence; not the advocate. But unless you have special reasons (which we come to later) you do not want the witness taking control or talking too much.
Let’s face it, your opponent’s witnesses do not want to help your client and it is more likely they want to cause damage; so why let them?
Another popular misconception is that the cross-examiner should shout or sound affronted by the witness’s answers. That might make good TV, but it is not effective in court or before an arbitration panel.
Sir Garfield Barwick KC was very frank about his approach to cross-examination:
‘Cross-examination is an art I do not think I ever fully mastered, certainly not to the degree attained by others. Some were successful in attacking a
114 Advocacy: A Practical Guide
witness in an endeavour to destroy his credibility and thus eliminate his evidence from the case. I developed no such talent.’
As Lord Millett put it, ‘... Let the witness believe that you are accepting his evidence, gain his confidence and lead him gently to agree when you ask the crucial question’.
This is not as easy as it sounds. Even a person as distinguished as Lord Millett, whose stellar career as an advocate and a judge led him to the pinnacle at the House of Lords, said that in the 25 years he practised at the Bar he doubted he had ‘more than three successful cross-examinations’.
1 The purpose of cross-examination
The first purpose of cross-examination is to strengthen your client’s case by eliciting helpful facts from your opponent’s witness.
Look at the statement of the witness. Compare it to your case analysis. Can this witness confirm any facts which appear in the ‘Good’ column of your case analysis?
It does not have to be direct confirmation. Can the witness agree with something that shows it to be more likely than not that the fact is true?
Some people say, ‘Why do you have to do this, if your witness has already given evidence of the fact or is due to?’
Well, because corroboration or support from another witness or piece of evidence (such as Monica Lewinsky’s dress), particularly a witness called by your opponent, makes it much more reliable and persuasive.
The second purpose of cross-examination is to undermine or discredit your opponent’s case by showing the witness is unreliable or, more specifically, that the witness’s evidence is unreliable.
If you think about it, most if not all of the laws of evidence are designed to ensure that what a court bases its decision on is reliable. So speculation, conjecture and theories of lay witnesses are excluded by law.
In order to show that evidence is unreliable, you don’t need to jump to the conclusion that the witness is lying. The vast majority of witnesses are
2015).
honest or believe they are being honest. It does not help to attack these people for lying. It smacks of bullying and is not persuasive.
The best definition of cross-examination came from Sir Edward Clarke, who was the Solicitor General from 1886 to 1892 and leader of the Bar in England for many years. He also represented Oscar Wilde in the case against the Marquess of Queensberry. He was unsuccessful, but that was because his client, the celebrated playwright, assured him he was telling the truth.
Clarke’s definition appeared in an unfinished treatise. Speaking of the three best cross-examiners of his youth, William Ballantine, Henry Hawkins and John Coleridge, Sir Edward said:
‘[They] were very different in style, but the secret of success with each of them was this, that he always tried to interest the jury, was never tedious, and never forgot that the object of cross-examination was not the collection of a complete series of facts, but the placing [of] selected facts in such a light as to lead to a particular conclusion.’
I would add only the words ‘or omissions’ after the words ‘selected facts’.
The word ‘object’ is interesting. Cross-examination is inextricably linked with the closing speech. The arrangement of facts or omissions is done to achieve an objective. The objective is what the advocate intends to argue in the closing submission or speech. In other words, it is the advocate’s explanation to the decision-maker of what the arrangement of facts or omissions means. Sometimes, the meaning will be obvious.
Clarke’s definition raises the vexed issue of how one should put one’s case, but I come to that subject in due course.
Sir Edward Clarke put it this way:
‘The most skilful and effective cross-examination is that which interests the [decision-makers] and sets them thinking what the answer to the [claimant’s] case ... can possibly be, and by the selection and arrangement of the facts referred to, suggests the [respondent’s] case instead of stating it.’
Let us look at an example of a factually arranged cross-examination.
Let’s say the witness has just said that she saw John Pearce coming out of a bar at 2:50 am. It is crucial evidence because Mark Johnston was killed in the bar and no one else had been in there.
Appendix 193 (emphasis added).
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Here is the cross-examination of the witness. Note the selection and arrangement of the facts:
‘The person you saw was 30 yards away?’
‘Yes.’
‘In a group of other people?’
‘Yes.’
‘With their backs to you?’
‘Yes.’
‘It was 2:50 am?’
‘Yes.’
‘And raining?’
‘Yes.’
‘The person was wearing a dark coat?’
‘Yes.’
‘And a dark hood?’
‘Yes.’
‘I have no further questions.’
1 What is the cross-examiner’s objective?
To be able to argue in closing that the witness could not have been able to identify John Smith.
2 Did the cross-examiner need to state boldly, ‘You could not identify him?’ or ‘You would not have been able to?’
No.
3 What is the source of the witness’s evidence that the cross-examiner is seeking to undermine or weaken?
Her eyesight.
4 Was there any need for the cross-examiner to go any further?
No.
This little illustration pre-supposes that the cross-examiner knows what the answers are going to be. But that point aside, it is also a neat illustration of selected and arranged facts.
Here is an example of a cross-examination (often seen in court) which selects all the facts:
‘The person you saw was 30 yards away?’
‘Yes.’
‘Adjacent to a building with a neon sign?’
‘Yes.’
‘Which was a big golden M?’
‘Yes.’
‘Because it was MacDonald’s?’
‘Yes.’
‘And they had chicken burgers on special that day?’
‘Yes.’
‘For ₤1.69?’
And so it goes on, relating all the facts, relevant or otherwise.
Here is an example of a cross-examination where the facts are badly arranged:
‘The person you saw had a dark hood on?’
‘Yes.’
‘And it was raining?’
‘Yes.’
‘And it was 2:50 am?’
‘Yes.’
‘The person was wearing a dark coat?’
‘Yes.’
‘You couldn’t see his face?’
‘No.’
‘He had a dark coat on?’
‘Yes.’
‘In a group of other people.’
‘Yes.’
‘And you were 30 yards away?’
118 Advocacy: A Practical Guide
Now, this cross-examination is not as smooth as the first. It is clunky. It troubles the mind’s eye. And it also introduces an unwanted word – the word ‘he’ – which is not helpful to the cross-examiner’s case because it tends to identify the witness.
Cross-examination may also be used to arrange the witness’s omissions – things that the witness could have done but did not.
Let’s say the witness has just given evidence that someone made an important admission to her over the telephone. Now that virtually everyone has a mobile phone this example may be obsolescent, but it illustrates the point about ‘omissions’:
‘You took the call at 3pm?’
‘Yes.’
‘In your kitchen?’
‘Yes.’
‘Where there is a phone?’
‘Yes.’
‘Fixed to the wall?’
‘Yes.’
‘And underneath the phone is a bench?’
‘Yes.’
‘On that bench was a pad of paper?’
‘Yes.’
‘And next to that pad was a pen?’
‘Yes.’
‘Yet you didn’t write down what the caller said?’
‘No, I didn’t.’
‘You didn’t write it down after the call?’
‘No, I didn’t.’
‘You didn’t write it down an hour later?’
‘No.’
‘Or a week later?’
‘No, I didn’t’
‘And here we are in court one year later and you still haven’t written it down, have you?’
‘No.’
‘We are relying entirely on your memory?’
Now, my students sometimes remark ‘What if...
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