Canadian Criminal Trial Advocacy/Cross Examination
Purpose and Objectives
It is often said that the purpose of the direct examination is to hear from the witness, while the purpose of the cross examination is to hear from the lawyer. That is, a lawyer should never cross examine with a view to learning information, but rather have the witness confirm information that is already known by the lawyer. That is why the main cross-examiner's tool is the leading question. The open question seeks facts while the closed question provides facts.
To enumerate it briefly, the purpose of cross examine is to:
- attack the witnesses' credibility and reliability,
- bring out evidence that is helpful to the case and
- bring out evidence that is harmful to the opponent's case.
This is accomplished by canvasing issues such as:
- Capacity to observe, recollect and recall
In Munkman, The Technique of Advocacy (London: Sweet & Maxwell, 1986), three techniques of cross-examination are outlined:
- confrontation: confront the witness with facts that they cannot deny which assist your case, such as inconsistencies in the witnesses statements
- probing: carefully exploring the details of their story to find flaws;
- insinuation: bringing out a different version of the evidence-in-chief by bringing up facts and possibilities
The key to a good cross examination involves knowledge of your theory of the case and the evidence, control of the witnesses, and control of oneself.
Every book discussing cross-examination focuses on the need for thorough preparation.
First, the most essential step of preparation is knowing the case inside-and-out. This would mean knowing what each witness has said in the past, such as prior statements, and having a good understanding of what they may say in court.
Second, the advocate must have a mastery of the parties theory of the case. It is the touchstone that should guide all the questions and should be the reference anytime the proceedings go off track or something unexpected occurs.
Investigate the central witnesses for the following:
- criminal record
- report of prior immoral acts
- other signs of bad character or reputation
- is the testimony potentially inconsistent with prior statements
- are there reasons for bias or prejudice against the accused
- does the witness have a relationship with an adverse party?
- is there a motive to falsify their testimony?
- are there physical/mental disabilities that may affect their testimony?
- other documents or witnesses that may contradict their testimony?
- are any facts likely improbable due to other known facts?
Cross examination outline
As part of the preparation of a Trial Book, you should be preparing an outline of your cross-examination. An examiner should always have a written-out list of goals for the examination, and how those goals can be reached. But the advocate should never be reading the questions to the witness.
During direct examination
By the time the direct examination of the witness is occurring you should have already prepared your cross-examination. The frequent practice is to use the time to record direct the direct examination. This is useful in that you can cite directly from testimony during argument and can have a written record of the actual evidence.
There is some who view that writing out the direct evidence is counter-productive. Rather, you should only take notes on points for your cross-examination. It is suggested that you have it recorded by someone else. This, however, is not always practical to counsel who are conducting the trial on their own. However, a well-prepared trial will unlikely lead to new information coming from the witness's direct evidence.
This time, instead, should be used to assess the witness. The witness should be observed for how they react to pressure; verbal and physical cues suggesting the truth. Keep an eye on the judge's reaction to the witness as well. This should be used to determine the approach in cross-examination.
Consider any statements that deviate from prioer statements as well as any assumptions or misstatements.
Tools of Examination
A looping question is one where a useful fact is repeated within multiple questions. In each iteration, new information is sought. This technique is intended to create emphasis on particular facts through repetition.
Types of Witnesses
Ironically, the honest witness can be the most undesirable witness for cross-examination. That is, because none of the regular methods of showing biases or cognitive errors will work.
This type of witness is generally trying to be helpful. The simpler approach would be a constructive cross which is aimed at get out as many useful positive facts out from the witness as possible.
A destructive cross is more difficult. The most effective approach is to attempt to have the witness honestly admit to deficits in their observations. An honest witness is readily prepared to admit to any risks of error or lack of knowledge they may have had.
When a witness states that they "don't recall", consider whether it was something that they should have been remembered and taken note of. In the cross, establish that the fact forgotten is one that was important to remember inferring that they are not reliable due to their failure to remember.
Ignorant or Stubborn Witness
These witnesses are those who have come to their own conclusions with limited facts. They are highly confident in their position and will not budge from it. They are not necessarily lying or biased, but rather have strong personal animus against any challenges to their beliefs.
The approach to the cross of these witnesses is to attack the basis of their conclusions. By picking out the elements that make up their conclusion, eventually they will be put into a position of defending unsupported grounds. Often this involves simply going through all their observations that they had, as well as what they did not know at the time, that lead them to their conclusion.
Biased witnesses are those who have some interest in the outcomes of the trial. They may be an accused, a victim, have a close connection to one of them, or they may have some external interests that are met by not giving a fair and careful recitation of their recollection.
The most obvious approach is to bring out these biases to show the trier of fact the motive the witness has to not give full and frank evidence.
A destructive cross can be highly effective against a lying witness.
These witnesses will invent a story that best supports their desired outcome. They will attempt to craft a story that matches as much of the evidence beyond dispute as possible. Invariably they cannot craft a story to cover all this evidence and consequently there will be basis of impeachment within the evidence. Where they are successful in covering all undisputable evidence they are often left in a position where their story has been stretched to fit the other facts to a point of losing much of the logic and reasonableness of their story.
Police officers are professional testifiers and so their evidence will almost always be well organized. They will usually give a lot of information without much prompting from the prosecution and are not shaken or confused easily.
Due to their skill in giving evidence to enhance the prosecutions' case, it is often best to focus on what they did not observe or what they observed but did not take notes on.
Adding new facts to the case
Officer's will often give testimony to essential facts that was not in any of the disclosure notes or reports. Counsel should attempt to restrict the testimony back to what was written out. When questioning on this, the officer will often dismiss this omission by saying that the notes were not intended to include everything but were only a "summary".
The problem with this is that it could permit officers add additional evidence whenever they want including on redirect where cross-examination may not be possible.
Respond to this by questioning the officer on the importance of having the questions as complete and accurate as possible.
Changing facts of the case
When the officer changes or deviates from the story, this change must be attacked for backpedaling. The inference to be drawn it that the officer realized that there was damaging information in the report and so was attempting to undo it. An ethical prosecutor should be equally disapproving of this change but this is not always the case.
If the officer answers that they "can't speculate" to a question of what they would have done if "this" or "that" happened, you must correct him. He is not speculating if he is talking about what he would have done. It is only speculation if it concerns what someone else would have done in the circumstances. Instead, ask him what he has done on prior occasions that were similar to the circumstances proposed.
Informers and Accomplices
A key skill in cross-examination is listening. There are frequently used statements made by witnesses that can often be used to the examiner's advantage and should be attacked when heard.
A witness may hedge their statements by stating "it seems", "I think", "I suppose", "I guess". This can be brought out as speculation which is reduces the weight of the evidence or renders it inadmissible.
A witness will often state that something is "possible" rather than probable to any specific degree. This can be favourable or undesirable depending on the matter referred to. Lock them into greater certainty if you want more of a commitment or else leave it if you intend to argue that the statement should be given little weight.
Attack Use of absolutism
When a witness says "always" and "never" consider whether they are overselling their position. When a biased witness or expert witness uses this language they can be made to show the witness is an advocate for the other side.
Evading the Question
Often the witness will not answer the question and argue with the question or discuss something else. Do not argue with them or else you will lose control of the witness. Re-direct the witness to the question by stating "That means yes?" or "That means no?"
There is the rare time where there is nothing to ask of a particular witness and for optics to the client or the jury it would be harmful to the case to not ask the witness anything. In such situations, questions can cover a number of issues
- who approached them to be a witness
- who did he talk to about their evidence (when, where, with who)
- made any prior statements (notes, written statments, etc)
- preparation for testifying (read over documents, prior statements, transcripts)
- being paid to attend
- is familiar with any of the parties or witnesses
- any benefit in the outcome of the case
- subpoenaed or came on their own
Do's and Don't of Cross Examination
- phrase the question to elicit one piece of information at a time
- Do phrase your questions as short as possible
- Do keep your language simple
- Don't ask questions you don't know the answer to
- Don't cross on trivial matters that the judge likely is not interested in
- Don't ask questions that covers the direct evidence
- don't argue with the witness
- don't allow the witness to explain themselves
- ask a witness why another witness is lying (R. v. Ellard (2003), 173 CCC 28 (BCCA))