Introduction & Legal Basis
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.
The legal basis/justification for cross examination can be found in the Evidence Act and Precedents.
Section 137 (1) of the Evidence Act provides for the order of examination as follows; that witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling them so desires) reexamined.
Case Law also on the other hand emphasizes the duty to cross-examine. Every cross-examination must comply with an important rule of practice. The rule is that you must cross-examine on every material fact in dispute.
This rule is derived from the decision in Browne v Dunn (1893) 6 R. 67, H.L cited with approval in our John Kayibanda v Uganda [1976] H.C.B 253. It was held that evidence that is not challenged in cross-examination by the party against whom it has been adduced is generally accepted by court as true unless it is contradicted by other evidence.
Cross-examination is the symbol of adversary justice systems, a constitutional right in criminal cases and an aspect of due process in civil cases.
Aims of cross examination
Section 145 of the Evidence Act provides for lawful questions in cross-examination as follows;
When a witness is cross-examined, he or she may, in addition to the questions hereinbefore referred to, be asked any questions which tend—
(a) to test his or her veracity;
(b) to discover who he or she is and what is his or her position in life; or
(c) to shake his or her credit, by injuring his or her character, although the answer to those questions might tend directly or indirectly to incriminate him or her, or might expose or tend directly or indirectly to expose him or her to a penalty or forfeiture.
Cross examination provides an opportunity to highlight inaccuracies in, and generally discredit, the testimony of an adverse witness.
• To destroy the material parts of the evidence in chief.
• To weaken the evidence in chief, where it cannot be destroyed.
• To elicit new evidence helpful to the party cross examining.
• To undermine the witness or shake his credibility.
Apart from the above, the primary aim of cross examination is to tell your story through the witness and not only to discredit the witness. Therefore, during cross examination, you the lawyer, are the witness.
The decision to cross-examine
Note the emphasis in Section 137 above that a witness is cross examined if the adverse party so desires. Where it is impossible to achieve any of the above aims, do not cross examine.
The Lawyer must look and listen to determine if the evidence to challenged has any of the following characteristics;
• Contradicts prior testimony of the witness;
• Conflicts with the testimony of other witnesses;
• Conflicts with documentary evidence;
• A hesitant, nervous or uncertain response on a key point;
• Addition or omission of facts on an important issue; and
• An actual admission
• Be alert to the contradictions, inconsistencies, hesitation, exaggeration, unresponsiveness and parroted or selective answers.
• Do I really need to ask this witness any questions, or can I save it for another witness?
• Has this witness hurt my case? If yes, where exactly? -
• Can this witness really help me? Where?
• Can I really reverse or weaken the harm caused by this or some other witness by questioning this witness?
• Is this witness basically honest? -Is this witness knowledgeable?
• Is this witness vulnerable? Where exactly?
• Know When Not to Stand Up at All. Don’t if testimony is:- not damaging, not germane to any important issue, is indeed devastating but you have no weapons of mass impeachment
The Content of Cross-examination
Section 137 (2) of the Evidence Act, provides the cross-examination need not be confined to the facts to which the witness testified on his or her examination-in-chief. Despite this allowance for wide-open cross-examination, questions must nevertheless concern relevant issues in the case.
Hence the wording of Section 147 above on “lawful questions” during cross examination which by implication alludes to the fact that some questions may not be allowed. This wide-open approach to cross is mainly in English Law and other jurisdictions insist on very narrow room for cross examination.
Cross examination therefore has rules and ethical restraints which we shall cover in the end.
Preparation for Cross-examination
To prepare for cross examination, the lawyer should;
• Have thorough knowledge of one’s own case
• Effective anticipation of the adversary's case
• Familiarity with the witness’ testimony.
• Gathered from witness statements
• Gathered from affidavits
• Meticulous notes from attentive listening during trial
• Investigation of the case, the facts, the pleadings, the evidence and the law.
• Prepare a thorough outline of the objectives and areas to be covered
• Develop credibility and trust with court
To accomplish the above, consider the following preparation tools;
Writing down all the questions
Write down all the questions so that you sharpen your specific questions. This helps in getting the correct form of the question right as well as with brevity (concise and exact use of words in writing or speech). When it comes to the actual examination, do not read from the list as that takes away from the chance for eye contact.
Outlines
Use notes not in the form of written questions mentioned above but an outline to remind yourself of the points that you intend to make on cross-examination and to ensure that you do not inadvertently omit anything. Here is an example of an outline in a Fire Truck Accident case;
Background
• Business consultant
• Sole proprietor
• Clients are important
• Timeliness and efficiency
• Locations and distances
• His home
• His office Parking lot
Accident
• Plans for day
• Left home at 7:55 a.m.
• Meeting at 8:30 a.m.
• Weather
• Fire truck
• Didn't see
• Didn't hear
• Didn't stop
Post-accident
i. Phoned office/important client
ii. Didn't call ambulance for plaintiff
An outline like this is very easy to follow, organized to tell the story and to provide a visual pattern that allows you to keep your place. Even when you lose your place, the sparsity of words makes recovery that much simpler.
Referencing your outlines
Lastly, reference your outline with the sources of the information for the points you want to make. This will help you refresh a witness’ memory or know exactly where to find the basis of your information. These are usually previous statements, contracts and documents and other records that inform the lawyer on what answer to expect.
Techniques of cross-examination
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 nonleading 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;1
• 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.
