Advocacy - Cross-Examination

Cross-Examining Witnesses

Cross-Examination

This is the process of questioning your opponent’s witnesses. The purpose of cross-examination is firstly to establish and advance you own and case and secondly to attack the other side’s case. Before you cross-examine a witness you need to consider whether the evidence they have provided in chief is harmful to your case. If you establish that their testimony has not been harmful then you need to conduct a constructive cross-examination showing that he/she is to be trusted. There is little point in trying to undermine a witness who has provided favourable testimony. On the other hand, if a witness’ testimony has been harmful to your case then in cross-examining them you will seek to either challenge their evidence as inconsistent, improbable or unrealistic, or you will challenge the witness as mistaken or untruthful. If you decide to undermine a witness you need to elicit from them the favourable evidence they provided first and then continue to discredit them. It is important that when cross-examining witnesses that the questioning is constructive to obtain support for your story and destructive questioning to challenge a version of the story which is not accepted by you. The cross-examination of witnesses needs to be structured and this can be achieved through appropriate planning. Your cross-examination will be structured if you follow the following steps:-

1. Keep your cross-examination to four points which support your theory of the case. This will strengthen your argument.
2. Make your strongest points at the beginning and end of your cross-examination as these are the points likely to remain in the mind of the listener.
3. Anticipate what the answer will be before you ask the question. The purpose of cross-examination is to obtain favourable facts and minimise the impact of the evidence-in-chief.
4. Do not write a script which you follow as this will not allow you to respond effectively to the witness and will weaken your argument.
5. If the witness says something you do not agree with do not argue with them as this undermines your own credibility and will ultimately impact upon your case. If you are pleasant and courteous to the witness, the witness should relax and cooperate with you.
6. Do not ask the witness open questions as this gives them the opportunity to say what they like. You need to ensure that you ask closed questions or leading questions as this can help you keep control of the witness.
7. If the witness during the examination-in-chief has said something which favours your case, then during the cross-examination you should make the witness repeat it for emphasis.
8. You should put your version of the case to the witness and give them the chance to accept or deny it.

As indicated above, one part of cross-examination is challenging the opponent’s case. This involves either discrediting the evidence or discrediting the witness. When cross-examining a witness you need to bear in mind that most of them are not lying. They are often trying to provide an account of the events as they saw them. You should therefore be careful if you decide to attack them as untruthful. It is best to focus upon the manner in which they saw the event. For example, from a distance, poor weather conditions, only got a quick glimpse of the event etc. You should then ask leading questions which suggest to them that they may have mistaken what they saw. In addition, you should look for any inconsistencies with what a witness has said during the trial and what they have said in a prior statement. If you notice any differences, you should ask the witness to repeat the fact which they gave in evidence-in-chief and the read out the part of the previous statement which is inconsistent and ask the witness if they made that statement. This will show that what the witness has said is inconsistent and it is will assist you in challenging the opponent’s case.