Techniques, Strategies and Ethics of cross examination
Cross examination is the process for testing the veracity and accuracy of the testimony of a witness. It is perceived as the riskiest part of the trial. Usually viewed as a contest between the lawyer and witness by the fact finder, poor cross examination can end up adding weight or attracting sympathy to your opponent’s case.
There is no one correct method of cross-examination. A lawyer can use different techniques for different witnesses. However, to tell your client’s story through an adverse witness, the essential goal of cross-examination, the technique is witness control. The best way to control a witness is through;
Use of leading questions
Section 140 of the Evidence Act defines a Leading Question as one that suggests an answer. And Section 142 of the Evidence Act specifically allows the use of leading questions in cross examination. A non leading question invites the witness to wander away from your story.
Use of Short Questions
If a question contains more than a single fact or implication, it is not short. Divide it. If a question is more than ten words long, it is not short in execution. Try to shorten it.
Ask enough questions to develop a topic, This topic is normally taken from the outline guiding the lawyer.
Avoid Ultimate Questions
It will often be tempting to confront an adverse witness with one last conclusory question: "So you just ignored the fire truck, didn't you?" Resist this temptation. It may unravel all the work you may have accomplished. Instead, save that conclusion for your final submissions at the end of the trial. Another common mistake is for the lawyer to attempt to make that argument there and then such as “May the Court please note that the witness has admitted ignoring the truck……” This is not the place for any
Argument or submissions.
Listen to the Witness and Insist on an Answer
There are many reasons why a witness can refuse to answer a question on cross examination which is mainly refusal to agree with a lawyer or being evasive or elusive. The lawyer must insist on an answer and this requires that they would have to pay attention and listen to the answer.
Questions that lose control.
The most common reason why a witness may refuse to answer a question or agree to the answer suggested by the lawyer is because the lawyer would have lost control of the witness. This is usually because of the form of question such as the following;
• Non-leading Questions; The cardinal rule on cross-examination is to use leading questions. You can control a witness this way:
Q. You were thirty feet away from plaintiff's car when you first applied your brakes, correct? But you lose control when you ask:
Q: How far from the plaintiff's car were you when you applied your brakes?
• "Why" or Explanation Questions; Asking a witness to explain is the equivalent of saying, "I've grown tired of controlling this cross-examination. Why don't you take over for a while?"
• Fishing Questions. Fishing questions are the ones that you ask in the hope that you might catch something. Do not ask questions to which you do not know the answers.
• Long Questions; These multiply a witness's opportunity to find something to disagree with and the lawyer will not know what exactly the witness disagrees with. The more words you use, the more chance there is that a witness will refuse to adopt them all.
Questions to Avoid;
• I put it to you (that you crossed the road);
• I suggest to you (that you crossed the road);
• My client will say (that you crossed the road);
• Are you trying to persuade the magistrate/judge/jury (that you crossed the road)?
None of these is a proper question, even if you add at the end: “What do you say to that?”
Although you may have heard these questions used so many times, you should never use them. Never. One judge described such a question as “ineffectual”. Not only is it ineffectual, the question does not address an issue in the case.
Cross-examination Strategy
It is important to have a strategy for your cross examination. Such as one following this order;
• Friendly information; be friendly and portray a kind demeanor first. It may be cross examination, but you don’t have to be cross. This is usually achieved through collection or confirmation of background information.
• Affirmative Information; After exhausting the friendly information, ask questions that build up the value of your case rather than tear down the opposition's.
• Incontrovertible Information: You can now proceed to inquire about facts that damage the opposition's case or detract from the witness's testimony, so long as they are well-settled or documentable. On these questions a witness may be inclined to hedge or quibble, but you can minimize this possibility by sticking to the sort of information that ultimately must be conceded.
• Challenging Information; It is unlikely that a witness will cooperate with you once you begin challenging her memory, perception, accuracy, conduct, or other aspects of her testimony. Therefore, it is usually desirable to proceed through friendly, affirmative, and uncontroverted information before you begin to take sharper issue with the witness.
• Hostile Information; Hostile information involves confronting the witness directly. You may be able to extract the necessary answers to hostile questions, but certainly you can eliminate all hope of cooperation both then and thereafter. Hostile questions involve assaults on the witness's honesty, probity, peacefulness, character, or background. "Didn't you spend time in prison?" "You never intended to live up to the contract?" "That was a lie, wasn't it?" Because of the above progression, control of a witness is paramount.
Hallmarks of Good Cross Examination
• It Must Be Absolutely Admissible
• It Should Be Central to Your Theory
• It Should Evoke Your Theme
• It Must Be Undeniable
• It Must Be Stated with Conviction
The Ethics of Cross Examination
• Questions that mislead, confuse or are designed to induce determination by bias, or other prejudgment outside the evidence, baseless stereotype or prejudice external to the evidence.
• Questions are improper if unduly annoying, harassing, intimidating, offensive, oppressive, humiliating, and repetitive or in tone or manner that is belittling, insulting.
• Don’t ridicule or be sarcastic or discourteous with the witness unless you are positive that the witness’ credibility has already been totally destroyed before the court; Uganda v Festo Baze and Another [1972] H.C.B. 222.
• Avoid the expression of personal animosity toward opposing counsel and witnesses regardless of personal opinion.
• Avoid obstructive tactics, including: bringing frivolous objections, unfounded objections intended only to disrupt opposing counsel.
• Don’t attempt to proceed in a manner previously barred by the court.
• Don’t ask improper questions.
• Don’t attempt to introduce inadmissible evidence.
• Don’t use dilatory actions or tactics, create prejudicial or inflammatory argument or publicity.
Impeaching a witness
While the general cross examination of witness deals with the weakness of the opponent side’s case, impeachment dwells on the credibility of a specific witness.
Section 154 of the Evidence Act provides for various ways the credit of a witness may be impeached by the adverse party.
The general areas that can be covered therefore include;
• Lack of or deficient personal knowledge.
• Lack of reliability.
• A witness with selective memory or deliberate omission of information not in their favour.
• Show bias / interest / motive / personal interest / character / omissions etc
• Prior inconsistencies such as behavior and statements.
Impeachment in cross-examination is very effective on strong points; it will probably antagonize the court on minor matters. An unsuccessful impeachment impeaches the lawyer! Never attempt to impeach a witness unless you are such of likely success.
ALINDA-IKANZA (19/10/2018)
Tags : Trial Advocacy