Cross-examination

In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination (in the United Kingdom, Australia, Canada, South Africa, India and Pakistan known as examination-in-chief) and may be followed by a redirect (re-examination in England, Scotland, Australia, Canada, South Africa, India, Hong Kong, and Pakistan).

Variations by jurisdiction

In the United States federal Courts, a cross-examining attorney is typically not permitted to ask questions that do not pertain to the testimony offered during direct examination, but most state courts do permit a lawyer to cross-examine a witness on matters not raised during direct examination. Similarly, courts in England, South Africa, Australia, and Canada allow a cross-examiner to exceed the scope of direct examination.

Since a witness called by the opposing party is presumed to be hostile, cross-examination does permit leading questions. A witness called by the direct examiner, on the other hand, may only be treated as hostile by that examiner after being permitted to do so by the judge, at the request of that examiner and as a result of the witness being openly antagonistic and/or prejudiced against the opposing party.[1]

The art of cross-examination

The main purposes of cross-examination are to elicit favorable facts from the witness, or to impeach the credibility of the testifying witness to lessen the weight of unfavorable testimony. Cross-examination frequently produces critical evidence in trials, especially if a witness contradicts previous testimony. The advocate Edward Marshall-Hall built his career on cross-examination that often involved histrionic outbursts designed to sway jurors. Most experienced and skilled cross-examiners however, refrain from caustic or abrasive cross-examination so as to avoid alienating jurors. John Mortimer, Queen's Counsel, observed that "cross-examination" was not the art of examining crossly. Indeed the good cross-examiner gets a witness to assert to a series of linked propositions culminating in one that undermines that witnesses' evidence rather than pursuing an antagonistic approach.

Cross-examination is considered an essential component of a jury trial because of the effect it has on the opinions of the judge and jury. Few lawyers practice trial law or complex litigation and typically refer such cases to those who have the time, resources and experience to handle a complex trial and the commitment involved to complete a trial successfully. Few attorneys get the practice necessary to develop the techniques needed to do an effective job cross-examining a witness.

It is sometimes referred to as an art form, because of the need for an attorney to know precisely how to elicit the testimony from the opposing witness that will help, not hinder, their client's case. Typically, a cross-examiner must not only be effective at getting the witness to reveal the truth, but in most cases to reveal confusion as to the facts such as time, dates, people, places, wording etc. More often than not, a cross-examiner will also attempt to undermine the credibility of a witness if doing so will not cause the cross-examiner to be perceived as a bully (such as discrediting a very elderly person or young child).

The cross-examiner often needs to discredit a potentially biased or damaging witness in the eyes of the jury without appearing to be doing so in an unfair way. Typically, the cross-examiner must appear friendly, talk softly and sincerely to relax the guarded witness. Or on other occasions they may start by being more confrontational, unsettling an already disturbed witness. They typically begin repeating similar basic questions in a variety of different ways to get different responses, which will then be used against the witness as misstatements of fact later when the attorney wants to make their point. If it is too obvious the questions are too clearly repetitive and making the witness nervous, the other attorney may accuse the cross examiner of badgering the witness. There is a fine line between badgering and getting the witness to restate facts differently that is typically pursued.

The less the witness says, and the slower the witness speaks, the more control they can maintain under the pressure of a crafty opponent. The key for a witness is to understand the facts that they believe to be the case and not add additional thoughts to those facts, lest they be used to undermine the testimony. Sticking to the brief known facts is key for the witness, making it difficult for the cross-examiner to make the witness appear confused, biased or deceitful. The cross examiner will assume the witness has been told that and begin asking supporting questions about where the witness was, what time it was, what the witness saw, what they said, and sooner or later upon asking again the witness may use a different word that will give the cross-examiner a chance to ask the question again doubtfully and pointedly implying contradiction. The witness will try typically to explain and clarify, which sometimes reveals weakness in the witness's statements of fact. Other times the witness is just being truthful but undermined for the purpose of casting doubt to the jury and or judge.

There is a measure of drama that cross-examination adds to any trial because of the challenging of the statements made by a witness. In the 1903 book titled The Art of Cross-Examination by Francis L. Wellman much effort is devoted to highlighting components of cross-examination and the effect on trials of the past century. An example of an inflammatory way a question will be asked by a cross-examiner to a witness he was trying to undermine would be "What is your recollection toDAY?" implying it was stated differently yesterday. Simply the accent of syllables can leave a bewildered jury believing they must put their guard up with a witness–or in some cases the cross-examiner if they are not careful. The book freely uses accenting in its dialogue to give the reader such insight as to how cross-examiners rattle witnesses to obtain their desired effect for the jury.

In most common-law countries, cross-examiners are expected to follow the well-established rule in Browne v. Dunn.

The key to effective cross-examination is the realization that true cross-examination is the cross-examiner testifying and the witness agreeing or adopting the facts of the question. This is accomplished by the use of leading questions; questions which suggest the answer and which can only be answered with a yes or no. Witnesses will of course attempt to explain their answer or even attempt to answer a question not before that witness in order to deflect the impact of the question. The cross-examining attorney has the right to object to non-responsive answers and to call upon the court to admonish the witness to answer the question as posed. The cross-examining attorney will ask only those questions which assist his or her cause and never allow the witness to repeat testimony elicited on direct examination.

Affecting the outcome of jury trials

Cross-examination is a key component in a trial and the topic is given substantial attention during courses on Trial Advocacy.[2] The opinions by a jury or judge are often changed during cross examination if doubt is cast on the witness. In other times a credible witness affirms the belief in their original statements or in some cases enhances the judge's or jury's belief. Though the closing argument is often considered the deciding moment of a trial, effective cross-examination wins trials.[3]

Attorneys anticipate hostile witness' responses during pretrial planning, and often attempt to shape the witnesses' perception of the questions to draw out information helpful to the attorney's case.[4] Typically during an attorney's closing argument he will repeat any admissions made by witnesses that favor their case. Indeed, in the United States, cross-examination is seen as a core part of the entire adversarial system of justice, in that it "is the principal means by which the believability of a witness and the truth of his testimony are tested."[5] Another key component affecting a trial outcome is the jury selection, in which attorneys will attempt to include jurors from whom they feel they can get a favorable response or at the least unbiased fair decision. So while there are many factors affecting the outcome of a trial, the cross-examination of a witness will often influence an open-minded unbiased jury searching for the certainty of facts upon which to base their decision.

See also

References

  1. ↑ Ehrhardt, Charles W. and Stephanie J. Young, "Using Leading Questions During Direct Examination", Florida State University Law Review, 1996. Accessed November 26, 2008.
  2. ↑ Lubet, Steven; Modern Trial Advocacy, NITA, New York, NY 2004 pp. 83 et. seq. ISBN 1556818866
  3. ↑ Mahoney, Kevin J (2008). Relentless Criminal Cross-Examination. Costa Mesa, California: James Publishing. ISBN 158012125X.
  4. ↑ Dreier, A.S.; Strategy, Planning & Litigating to Win; Conatus, Boston, MA, 2012, pp. 79-85; ISBN 0615676952
  5. ↑ Davis v. Alaska, 415 U.S. 308 (1974).

Further reading

Look up cross-examination in Wiktionary, the free dictionary.


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