TABLE OF CONTENTS. Page. The Role of Cross-Examination in the Litigation Process. Preparation for Cross-Examination. The Manner of Cross-Examination

Transcription

1 TABLE OF CONTENTS Page The Role of Cross-Examination in the Litigation Process Preparation for Cross-Examination 5 The Manner of Cross-Examination 7 When to Cross-Examine 7 Techniques of Cross-Examination 1. Probing 2. Insinuation 3. Confrontation 4. Undermining the Witness The Expert Witness 12 Two Points in Conclusion 13

2 THE ROLE OF CROSS-EXAMINATION IN THE LITIGATION PROCESS CROSS-EXAMINATION OF A WITNESS In any trial, civil or criminal, as counsel, you should: 1. Know your client's version of the facts in issue. By client, I mean not only the client's evidence, it any, but the facts that have been acquired by you in preparation of the case through any number of witnesses. 2. Have assessed your case and know its strengths and weaknesses. 3. Have formulated a theory towards which your version of the facts will be directed at trial. In a civil case, you are out to advance your version of the facts as being the most likely on a balance of probabilities. In a criminal case, you are out to ~emonstrate that on your version of the facts, there is, or is not, reasonable doubt of the accused's guilt. The theory of the case will guide what evidence you lead in chief, the direction of your cross examination, and your closing argument. As has been stated many times, advocacy is the art of persuasion. In order to be persuasive, one must not only prepare in advance a "credible case", but one must also be prepared to attempt to weaken or qualify one or more aspects

3 - 2 - of the "credible case" being put forward by the other side. If a cross-examination is adequate, the trier of fact will normally have a slightly different perspective of the witness' evidence or of the witness, than was the conclusion of the examination in chief. the case at If the cross-examination is inadequate, the evidence given by the witness in chief may well be enhanced substantially at the conclusion of the cross-examination. Therefore, there is an obligation on counsel to spend at least some time considering and preparing cross-examination as part of the preparation for trial. Emery Buckner at p. 216 of Francis Wellman's "The Art of Cross-Examination", states as follows: "More cross-examinations are suicidal than homicidal. There are two reasons for this: a mistaken conception as to the function of cross-examination, and faulty technique." Cross-examination of a witness has a number of objectives which are outlined by Mr. Frank Gomberg in a paper entitled "Cross-examination at Trial in a Civil Case" which appears in a book entitled "Advocacy in Court, A Tribute to Arthur Maloney, Q.C.", Canada Law Book 1986 at p. 130: "(i To modify, explain, or qualify the witnesses' story; (ii To show the improbability or falsity of the witnesses' story; (iii To destroy the witnesses' credibility; and

4 - 3 - (iv To elicit matter not brought out in examination in chief that is favourable to the cross-examiner's case." The fallacies of testimony have been commented on extensively and an honest witness can often be mistaken. Munkman in a text entitled "The Technique of Advocacy", stevens & Sons Limited, 1951 at pages summarizes the following fallacies of testimony: 1. Errors of the Senses - faulty observation being the most common. 2. Errors of Memory - the witness has overlooked certain details, or the witness' imagination has filled in details that are not correct. 3. Errors of Interpretation - where the witness presents a conclusion rather than the facts which lead to such conclusion. man appeared "drunk" is a The statement that the conclusion, and it is necessary to explore the facts that led to that conclusion. 4. Errors of Verbal Expression - the most common is exaggeration. The statement "I knew him well" requires exploration as to what "well" means. If counsel has a good grasp of the facts, counsel should be able to spot most of the errors made by a witness of the foregoing type, and at least with an honest witness, correct them or have the witness admit that they do not recall. If

5 - 4 - the witness is difficult for whatever reason, as a minimum counsel should be able to alert the trier of fact that there are additional facts or a different version of the facts that will be presented in due course, and thereby cause the trier of fact to reserve judgment on the value of the witness' evidence until the close of the case. In the absence of damaging material, it is unrealistic to expect that you can persuade a witness to change their mind or reverse their evidence. It is therefore most inappropriate for counsel to ever argue with a witness because you do not like the answers you are receiving. This simply indicates lack of skill and lack of composure on the part of the cross-examiner. The object of cross-examination is to control the witness by your line of questioning and your manner of questioning, and if you don't always get the answer you expect or desire, your obligation is to try an alternate approach in your line of questioning with a view to demonstrating to the trier of fact that perhaps the witness is not reasonable, or credible in maintaining the position that you consider to be false or in error. At the conclusion of the case, you will use closing argument, to weave together the threads of doubt, discrepancy, or qualification that you have managed to

6 ! accomplish in the course of cross-examination of the other side's witnesses. PREPARATION FOR CROSS-EXAMINATION preparation is fundamental to most successful cross-examinations. The preparation begins with analyzing the facts and material you have at your disposal and from there, considering how you might approach a cross-examination with: 1. witnesses that you know will be called by the other side; 2. the category of witness that you anticipate will be called by the other side. preparing in advance allows you to accomplish the following: 1. Provides structure to the cross-examination. By structure, I do not mean an orderly progression but rather your plan of attack. How much probing will be required to look for openings or weaknesses or to get a feel for the witness? Do you wish to undermine the witness. Will you rely on insinuation? Will you confront the witness? In each case, how, in what manner, and in what order? 2. How will you frame your questions in order that you

7 - 6 - might control the witness? Leading questions which require a yes or no answer only, are the most effective and should be used whenever possible. When questions cannot be so framed, care must be taken to lead up to critical questions to determine if there is any hope of acquiring the desired answer. If the answers to the lead up questions are not encouraging, then move on to another area which might be more productive. You wish to avoid the bad question which produces the bad answer. 3. To consider alternate lines of questioning on which you will proceed depending on the answers provided at the preliminary stages of questioning. 4. Allows you to concentrate on the witness at trial and not have your head buried in the notebook. The foregoing preparation is not intended to be used verbatim at the trial. Ideally, notes should not be used during cross-examination other than as a checklist. The preparation simply prepares you mentally for the cross-examination and gives you confidence that when called upon to cross-examine, you have a considered approach to the witness.

8 - 7 THE MANNER OF CROSS-EXAMINATION There is no one style of cross-examination or method of cross-examination that should be emulated. You should develop your own style and manner which reflects your personality and is one which you are comfortable with. what is important, as in all trial work, is that you demonstrate a certain confidence in your case, and a good knowledge of the subject matter. In general terms, cross-examination should be conducted in a friendly and agreeable manner, at least until such time it has become obvious to the trier of fact that the witness is being difficult, evasive, or selective in memory. If this is the case, you should, by your questioning, be able to demonstrate this to the trier of fact, before launching into a more vigorous approach. WHEN TO CROSS-EXAMINE It goes without saying that if a witness' evidence is not at variance with the version of the facts that you are advancing or your theory of the case, there is no need to cross-examine the witness. You may still wish to do so if you are satisfied that you can elicit facts from such witness favourable to the case you are putting forward. I say satisfied, because if you are calling your own evidence

9 - 8 - on the matter, there is no sense in setting up a conflict in the evidence where otherwise none would exist. Each cross-examination should have a purpose. You should therefore ask yourself at the conclusion of a witness' examination in chief if the witness has hurt your case, and if so, how badly. How badly will determine what risks you must take in cross-examination. Do not take risks that are out of proportion with the significance of the evidence in chief. Because you wish to keep the focus on your theory of the case, it is not recommended that you take issue with irrelevant matters, or picayune details of no consequence. TECHNIQUES OF CROSS-EXAMINATION As a general rule, if it is your intention to elicit favourable facts from a witness on cross-examination, you should commence with that aspect of the cross-examination prior to attempting to weaken or qualify the evidence given by the witness in chief.

10 - 9 - I.. Munkman, supra, at p , identifies four basic techniques utilized in cross-examination, usually in combination and they are as follows: 1. probing 2. Insinuation 3. Confrontation 4. Undermining of the Witness 1. Probing The technique of probing is utilized when you have reason to believe one or more aspects of the evidence in chief are in error are exaggerated and you have no material available to prove otherwise. Munkman, supra, at p. 77 states: "The characteristic of probing is to ask such questions as who? what? where? when? and why?" The reason these questions are asked is that they are reasonably harmless as you are simply exploring the story that has already been told. At the same time, if the story has been falsified, you may well be able to ask questions faster that the person can think of answers. What you are looking for are answers that seem improbable, or which produce discrepancies. "Why were you in that neighbourhood?" "Who were you going to visit?"

11 "What was the purpose of the visit?" " \ I "When had you last visited such person?" "Where had you last visited such person?" The technique of probing is directed at probabilities. If you obtain an improbable answer, you have something to pursue. Probing, itself, can weaken or qualify a case, but it can also lead to openings that will allow you to develop favourable facts (insinuation or to challenge the witness (confrontation. 2. Insinuation The object of insinuation is to turn the evidence, if possible, to support your version of the case without altering the basic facts the person has testified to. If you have an impartial witness, they will usually be willing to agree to a reasonable suggestion. (e.g. Ques. "You testified the accused was staggering." Ans. "Yes." Ques. "You indicated you believed him to be drunk." Ans. "Yes." Ques. "Would you agree with me that there could be other reasons a person might stagger." Ans. "Yes." Ques. "They could have received a blow to the head."

12 Ans. "Yes." Ques. Ans. "They could be suffering from an illness." "Yes." In the foregoing, you have set the stage for an alternate version of why your client was staggering, and you have weakened the evidence in chief in the process. Even if you fail to obtain responsive answers, you have alerted the court to the fact there is another version to come. You may also discredit the witness if the witness is not prepared to agree to alternatives that appear perfectly plausible. with a partial witness, it may be necessary to have material available to force such admissions. Some expert witnesses would fall into this category. 3. Confrontation Means confronting the witness with damaging facts that are all already in evidence, or which you are in a position to prove. The object is to discredit the witness and discredit the facts the witness has testified to or substantially weaken the same. Documentary evidence is the most common type of evidence used in this respect, but it can include other facts that the witness knows you are able to prove. Material

13 for confrontation is usually only available in larger cases which have larger investigation budgets. 4. Undermining the witness Can include the following: 1. Cross-examination as to credit. Does the witness have: (i (ii an interest in the outcome; is the witness' conduct in the matter open to question; (iii is there personal animosity involved; (iv does the person have a specific point of view they wish to espouse; (v has the person made previous inconsistent statements? 2. Did the person have the opportunity to observe or know that to which they have testified? 3. Does the person have the qualifications? The foregoing techniques are the basic tools of the cross-examiner. THE EXPERT WITNESS The foregoing comments apply equally to the cross-examination of an expert witness. In preparing to

14 cross-examine an expert witness, it is usually desirable to consult your own expert as a resource person as you will often find they can provide lines of inquiry and material that would not otherwise occur to you. Areas for cross-examination of an expert witness include the following: 1. narrowing the area of expertise; 2. testing the witness' impartiality; 3. question the underlying assumptions; 4. point out that differences of opinion amongst experts do exist on the point if applicable; preferably with material available to back-up the assertion; and 5. corroborate the evidence to be given by your own expert. TWO POINTS IN CONCLUSION 1. Thoroughness does not mean lengthiness. 2. A critical question, the answer to which has the capability of deciding the case, should not be asked unless the answer is known.