Chapter 15 Cross-examination

The general rule here is DON'T DO IT.

I’ve put this in bold - for a reason.

⅛⅛⅛

People at law school dream of the day they will cross-examine. Their role model is rarely a real advocate whom they have watched in court.

On tv, witnesses blub.

They are exposed as liars, cheats, villains.

They admit guilt.

They eventually agree tearfully with the cross-examining lawyer, the judge bangs his gavel, and there are gasps from the public gallery. The advocate swaggers to his seat while the witness seems metaphorically a dead duck.

IT DOES NOT HAPPEN LIKE THAT IN REAL LIFE.

A witness under cross-examination does not want to agree with you.

He will fight tooth and nail to confound you.

He will misunderstand your questions.

He will provide evasive answers.

He will try to use your questions as an excuse to repeat the deadly features in his testimony which destroy your case.

But blub? Never.

‘It's a fair cop guv’, you've got me bang to rights?' Never.

Unlike tv, a witness has no script which must be followed. He will try everything to wriggle out from under your questions.

Every question in cross-examination is an INVITATION TO DISASTER.

It is an opportunity for the witness to hammer you and your case.

So your first thought should be don't do it.

ASK YOURSELF IF YOU REALLY NEED TO CROSS-EXAMINE.

Some of us think we must ask everyone questions or we are not impressing the client.

Nonsense.

Obviously.

But it happens.

A lot.

Always start from the point of view: if I can avoid it, I will.

If you have to cross-examine, there are ten rules.

Ten.

For the first five years of practice, don't break them.

Ever.

Errr... you will, of course.

But you shouldn't.

You won't be able to help yourself. None of us can. But there are ten rules, and you should know them, backwards, and know when you are breaking them, every time.

If you are going to break a rule, you need to be asking yourself ‘uh oh, I'm about to break a rule, should I, what is the advantage, will it go wrong?’

The point is YOU HAVE TO BE AWARE WHEN YOU ARE BREAKING THE RULES.

In this way, you may not do as much damage as you would otherwise do if you did not know the rules and had no idea when, inevitably as we all do, you break them.

So, learn the rules.

Be able to say them in your sleep.

The first rule is THINK COMMANDO.

Don't lay siege.

Don't settle into each witness with books of questions.

Like a commando, you go in, you get what you want, you get out.

Remember, it's dangerous out there.

Every question invites disaster.

So,

stealth,

cunning,

brevity,

should be your beacons.

It's a raid, not a siege.

The second rule follows from the first:

WHEN YOU HAVE GOT WHAT YOU WANT

FOR YOUR CLOSING SPEECH,

STOP,

STOP,

STOP.

STOP.

D'you hear?

STOP.

Don't try and improve on answers.

Witnesses will sense you think you have them, and will back-track.

Weigh each answer against the closing speech you want to be able to make.

If the answer fits - STOP !

⅛⅛⅛

And try not to say ‘thankyou’, as it tips the witness off you have what you want, and they may start trying to undo what they have just said.

Just stop. Full stop.

The third rule is hard:

NEVER ASK A QUESTION TO WHICH YOU DO NOT ALREADY KNOW THE ANSWER.

Cross-examination should not be used to dig around.

You have no idea what you will find.

It may be helpful.

But watch out - it may not be. At all.

And you are gambling your case.

Sometimes you have to gamble, but rarely please, and you must have the brain of a mathematical weasel, cunningly calculating the odds of a helpful answer from your experience of people and from your assessment of the personality of the witness.

And you won’t have the courtroom dexterity of a weasel for several years.

What then is the point of only asking questions to which the answer is known?

The point is to DRAW ATTENTION to your case.

The jury will not yet have seen the witness from your perspective. So make them.

The witness says the burglar was Tommy Smith who he knows locally. Let us suppose the following facts have all appeared either in the witness statement or the evidence in chief (so you do not breach the third rule), but these uncontroversial facts are peppered about all over the place in the direct examination.

Your job is now to draw the facts together to present a fresh perspective.

Your perspective.

It was 3am? Yes

It was night-time? Yes

The burglar was in the garden? Yes

You were in the home? Yes

You switched on the lights? Yes

You saw the burglar? Oh Yes

In the back garden? Yes

40ft away? Yes

At the front of the house there is street lighting? Yes

He ran down the back garden? Yes

Away from the house? Yes

He climbed over the fence? Yes

The garden is 50ft long? Yes

He took 10 seconds to reach the fence? Yes-ish

He took 5 seconds to clear the fence? Yep

He was in a hurry? Yes

You couldn't quite believe what you were seeing? Yes

You had just woken up? Yes

You were puzzled by a noise you'd heard? A bit

You turned on the light? Yes

You looked out the window? Yes

You say he looked up at you? Yes

And then he was off? Yep

Let's say the issue is identification; and it should now be obvious what will be said in the closing speech.

If it isn't, you'll get some idea a few pages on.

Note how the questions, which are really a series of statements, have bent the perception of the case.

Cross-examination is all about BENDING PERCEPTION.

It's about getting the tribunal to begin to see the case from your point of view.

It is not about getting the witness to blub.

The fourth rule is demonstrated in the questions you have just read above:

ALWAYS ASK LEADING QUESTIONS.

Always.

Never ask an open question.

Tell the witness what the answer is you expect.

You should know what the answer ought to be since it will have been in the witness statement or evidence in chief or is abundant common sense, and so the witness ought to agree with your leading question.

A leading question controls the answer.

This is because:

A LEADING QUESTION GIVES THE ANSWER,

AND THE WITNESS SHOULD SIMPLY SAY ‘YES'.

That's the ideal answer to every question - ‘yes'.

If you give the answer, you control the answer.

Controlling the answer means controlling the witness.

Cross-examined witnesses, out of control, are deadly.

Deadly.

You say what the answer is, and ask as a tag

‘isn't that so', or

‘that's right, isn't it’,

turning a statement into a question.

Sometimes you don't even have to say the ‘isn't that so?’ bit, as it is plainly understood that you are asking a question.

You don't ask -

‘Did the cat sit on the mat?’

-nor-

‘Where was the cat?’

You ask instead -

‘The cat sat on the mat, that's right isn't it?’

And because you know the answer from what is in the witness statement or from the evidence in chief, the witness will probably say ‘yes', no more than that, and is safely under control.

The very best way to lose control, so that the witness becomes deadly, is to ask for explanations.

The fifth rule then is

NEVER

EVER,

EVER,

ASK THE WITNESS TO EXPLAIN.

EVER !

This is also known as never ask the witness ‘why?'

The problem with an explanation from the witness is it will destroy an explanation from you.

Witnesses will almost

always,

always,

find ways of explaining, despite the most cunning plans of the cleverest minds.

It is not like in the films where they shrug their shoulders and admit they can't explain.

You may think there cannot possibly be an explanation, and so you perorate with the witness, delivering what you think is the killer blow. The witness is now fighting for his life. So, watch out - he’ll come up with something.

And when he does explain, he will use it as an opportunity to take centre stage in court again, and persuade the jury of his testimony.

Persuasion is your job - do not let it be taken from you and taken over by the opposition.

The sixth rule flows inexorably from the fifth, and is so important that it is monumental, huge, just plain massive:

RESERVE YOUR COMMENT FOR THE JURY,

NEVER

EVER,

EVER,

EVER,

FOR THE WITNESS.

Sometimes this is known as do not ask ‘conclusionary questions' - these are questions which demand a conclusion from the witness.

In a roundabout way, we are avoiding asking for an explanation, which is the fifth rule. If you put a conclusion to a witness - if you put what will be your comment to the jury - what you are in fact doing is asking the witness to explain whether your comment or conclusion is correct.

Let's look again at our burglar.

From the evidence a few pages earlier, we will want to make the following comment to the jury:

‘It was dark, he was 40ft away, he looked up, there was street lighting on the other side of the house, but no evidence of lighting in the garden, he shot off, he was in view 15 seconds, but the witness must always have been looking at his back as he ran away, if the face was visible at all it cannot have been more than a fleeting glance of someone speeding into darkness, he had just been roused, had been fast asleep, was puzzled, couldn't believe his eyes, looking out a window which because it was night time with a light on in the room as a matter of common sense will have largely reflected the witness and the bedroom obscuring his view out.

Great comment.

But how often do advocates call for a conclusion from the witness.

Here's the stupid question - and believe me, it happens all the time: ‘In all these circumstances I have asked you about, you did not see him long enough or clearly enough to make an identification about which you can be sure, can you?'

And the reply?

‘Of course I did. I have 20-20 vision, and he looked up at me, for longer than a glance. You had not asked before for how long he looked at me - it must have been 10 seconds. I could see he was thinking what he should do. The bedroom light lit him up clearly. And I was wide-awake, having been frightened, not just puzzled by the noise. Oh, it was Tommy Smith all right. He knew I'd recognised him. I could see it in his face. That's why I guess he paused for so long before running off. Our eyes met. It was him.'

Oh dear. You have spectacularly lost control.

What was looking attractive has been undone by being over-eager to get the witness, LA Law style, to crack up.

So just don't do it.

Never ask why.

Never ask for an explanation.

Reserve your comment for the jury.

The seventh rule is:

NEVER ASK THE WITNESS FOR HELP.

A witness under cross-examination will kick you in the head - and that is what asking for help invites. It exposes your neck and invites decapitation. You will get no pity from the witness: he will have you.

Help problems usually arise after breaking the third rule about always asking questions to which you know the answer, or breaking the fifth rule about never asking for an explanation. Having asked questions to which you don't know the answer, you will usually have accumulated a series of crippling answers, and maybe an explanation which devastates you, and so you are off-balance, drowning before the jury.

So, with a meek smile, as you go down for the last time, you ask for a life belt:

‘Surely you cannot be certain of the identification, I mean it really was dark, that's fair isn't it?'

(and we can almost hear a plaintive ‘please say you agree, please help').

There is no life belt, simply the concentrated rattle of evidential machine gun fire from your implacable enemy, the witness, straight between the eyes and you sink without trace.

Instead, learn to look unconcerned by devastating answers. It's an act, but it is one you must learn. With a devastating answer, a tribunal will look to you, rather like an audience at a tennis match following the ball as it is belted back to you, and you must look like you can handle it. If you look as if the ball has got past you, the tribunal will take note.

Just say:

‘Idare say....’or

‘Oh, I see..’ or

‘That’s helpful.'

Make it look like everything is fine.

Whatever - just don't look like you need help.

The eighth rule is:

ASK ONLY ONE THING AT A TIME.

Some advocates roll large amounts of material into a question. In the confusion created by asking too much, the witness does not answer yes or no, but picks on one detail among the many you have queried, and sets out once more on a lengthy explanation.

Lengthy explanations will destroy you.

They allow the witness to re-assert control

Importantly, they tend to allow the witness to repeat his story.

If the tribunal hears the story once, they might believe it. If twice, they're pretty much convinced now. If you blunder into allowing a third story­telling, nothing short of nuclear war is likely to change the tribunal's mind.

So, none of this:

‘It was dark, being night time, with street lighting to the front of the house, and you looking out the window into the back garden, isn't that right?'

One thing at a time:

It was dark? yes

It was night-time? yes

The street lighting was at the front of the house? yes

You looked out the window? yes

At the back of the house? yes

The ninth rule is:

WHEN PUTTING YOUR CASE, TELL THE WITNESS HE DISAGREES WITH IT.

This may sound weird.

But it is important.

Generally in England, we must put our case to the witness. In some other jurisdictions, you may not have to.

How much of your case to put, and in what detail, can depend on the individual case. There is an art to it, which you will learn with experience, and is not susceptible to written rules in an advocacy book. The general approach is to put as little as is necessary to have fulfilled your duty to have put it.

The reason advocates are wary of putting their case in glorious technicolour is this: if you're not careful, putting your case can become an opportunity for the witness to take centre stage to say at length exactly why your case is wrong and should be disbelieved.

The witness will repeat the best points in her evidence, will add a few more, and will look keenly at the jury persuading them to believe her.

So, don't ask: ‘I suggest your identification is mistaken, what do you say about that?'

You’ll get a very long answer.

Instead, how about: ‘I suggest your identification is mistaken, but you would disagree with me, wouldn't you?’

The answer is ‘yes’.

And only yes.

You have not invited justification from the witness by challenging him to an evidential fight to the death.

You have instead asked a question which invites AGREEMENT from the witness, namely ‘Yes, I disagree’.

The answer is neutral, uneventful, perfectly agreeable, and everyone has expected it anyway. You have done your duty in putting your case and quite often you will have avoided a diatribe in response.

The tenth rule concerns BOUNCE FOR CONFRONTATIONS.

Bounce is again about bending perception.

We mentioned bending perception at the end of the third rule.

Bounce is supremely important.

How do you get a witness to say what you want?

In an ideal world, you want the witness to cry buckets and confess their lies, to say ‘It's a fair cop guv’, you've got me bang to rights, I've been lying’. They never do.

But the question is, can you get close to it?

Can you create the IMPRESSION that it is a fair cop, the witness is bang to rights, but naturally and understandably, he cannot bring himself to admit it?

Bounce is required.

You bounce your case off the witness.

Imagine a tennis ball being thrown at the witness, to bounce off the witness, into the hands of the jury.

We use bounce only when we confront a witness.

Unlike our identification witness who we say is simply honestly mistaken and against whom there is no need to bounce, we use bounce if suggesting a witness is the wrong-doer, the guilty party, the real culprit, the wrong’un.

For example it is highly effective where the allegation is assault and the defence is self-defence.

You put your case in great detail, simply bouncing it off the witness to the tribunal.

Get a rhythm going.

The psychology of what you are doing should mean it appears irrelevant to the mind of the tribunal what the witness says in response. Let's assume a fight between males.

You say he hit you first Yes

But you hit him first No

You say he hit you on the nose Yes

But you hit him on the shoulder No

First No

With a pool cue No

While angry No

Because he'd looked at your girlfriend Not true

In a funny way No

So you hit him Lie

With a pool cue No

Twice Not true

And he hit you He did

On the nose Yes

In self-defence Not true

Notice how none of the questions in the bounce cross-examination have question marks after them. You are not asking. You are not seeking agreement. You are telling him, and expect disagreement.

And while delivering the bounce, mostly do not look at the witness, as it may often appear intimidating.

LOOK STRAIGHT AHEAD,

into space,

or at the judge,

or occasionally for emphasis to the jury.

This is the moment you clash swords with the witness.

This is not forensic surgery: it is forensic war.

Polite war.

Remember what we said about always respecting the witness. CROSS­EXAMINATION IS NOT ‘CROSS' EXAMINATION.

And if you come off badly from clashing with the witness, at least you have been polite, so you have not lost too much precious credibility with the tribunal. But you will if you are rude and then lose. Tribunals hate rudeness. Rightly so. You don’t know what really happened in a case. You are simply following instructions. So when you bounce, be formal, be firm, but DON’T GET PERSONAL.

And use your stature, your head held high, your body movements purposeful, your deep voice, your politeness, your short questions, as you bounce to persuade the jury your case is right and the witness is wrong.

Remember, the witness has less armour in the witness box. You have a robe, maybe a wig. You are protected by books and files. You are practised at persuasion. You have done it before. You have an advantage.

This is the time to use it.

You’ll often look more of an expert than the witness on the witness's own case.

Wield that sword.

But always politely.

I wish now to speak of something I call ‘the lever’.

When considering bounce, we may look for THE LEVER - it is notionally what drops the witness through the evidential trapdoor when pulled.

But be careful. It can be upsetting in court and should only be reserved for the ‘right’ witnesses. We can look for it in every witness, whether using bounce or not, and we must always ask whether it should be pulled.

Sometimes to pull it unsettles the tribunal. To take an obvious example, it need not be done where a mother is giving character evidence for her son. You don’t need to put it to her that she is outright lying to protect one she raised, nursed, helplessly loves, and is incapable of telling the truth knowing her boy will go to jail. You might carefully make that comment later, but Mum may not deserve to be witheringly confronted in the witness box for showing loyalty. A tribunal will sometimes find that loyalty agreeable, while it will nevertheless politely disregard the testimony.

So remember - a tribunal will be unhappy if you pull the lever on the ‘wrong’ witness.

For almost any witness there is some feature of evidence which is just not quite right. It leaves him open to attack, to being undermined, or to mild embarrassment. I don’t mean exclusively stinging red-faced embarrassment. I mean the sort that creates a moment of silence and everyone realises something is wrong, like when a fisherman tells tales of how big was the fish, or when someone overstates how good they are at speaking French, but then cannot follow what you say in the language. It is the embarrassment which follows when you catch someone out, and is the most effective result of cross-examination. If you destroy a witness, sometimes he or she receives sympathy. But if you embarrass a witness, the moment can hang like lead.

So, the lever should create embarrassment.

The thinking is: if Ipull this, does the witness get written off?

Or: if Ipull this thread, does the testimony unravel?

There is another way to think of the lever.

My Head of Chambers, the late great Michael Hill QC, used to speak of fishing and getting a nibble. You have to know when an evidential fish is near the line, unknowing but moving the hook, and how suddenly you then strike. It takes instinct and experience.

I can’t teach you much about it, other than to keep your eye out for the day you understand my meaning. While I can teach you how to play the advocacy Fur Elise, perhaps note-perfect and a tad wooden, creditable nonetheless, I cannot teach you how to feel the music - but it will come.

A frequent example of a lever is a previous inconsistent statement.

This is where a witness has said something in evidence which can be contradicted by referring to what was accurately recorded as having been said by him previously.

It sounds easy to do, but there is a method.

If not followed, you will probably go wrong.

The first step is to refer to the evidence in chief. Get the witness to repeat what he said.

Let’s suppose he earlier said: the cat sat on the mat.

Your first question is:

‘It is right, is it, that in your direct evidence, you said that the cat sat on the mat?

And now add:

‘And you are clear in your recollection that what you said is correct?'

The witness should therefore be made to CONFIRM the testimony.

And if necessary, use the judge’s note or your own to pin the witness to extract the confirmation.

Now you box the witness in by making sure there is no room for manoeuvre. We call this RING-FENCING. It requires locking off escape routes, closing down the rabbit runs, corralling the witness, by placing a notional ‘ring of fences’ around him, one piece of fence at a time, until there is no way out.

This is the most important part of the exercise.

You mean the black cat, not some other cat?

You mean on Monday, not on Tuesday?

You mean the mat in the frontroom, not the bedroom?

You mean in the morning, not in the evening?

You give the witness plenty of evidential rope to place around his neck. You emphasise through your questions, and the witness’s agreement, that the black cat sat on the mat in the living room on Monday morning. Tell the witness if he has made a mistake, he should say so.

But by now the witness is usually dug in, and will not back out, because to do so would mean spectacularly undermining himself.

If the confirmation and ring-fencing is done right, the witness is now perfectly poised, on pulling the lever, to be dropped out of the case.

Now you turn to the document which is the previous inconsistent statement.

First, you get the ORIGINAL document.

Then you pass it to the witness to agree its AUTHENTICITY, drawing his attention to his signature upon it, or some other feature of reliability, and at the same time being careful, by maintaining the pressure of your questioning, to stop him reading it.

A formal statement will often include a signed DECLARATION that it is true on pain of prosecution to the best of his knowledge and belief.

Here is what you say:

‘Here is an original document - it is your statement to the police, which you know to be an important matter - please note that your signature appears upon it under the declaration of the truth of this statement, your having reviewed this statement before signing so important a declaration, that's right is it not?'

Read out the ‘declaration of truth^,....slowly - it is usually something like: this statement is true to the best of my knowledge and belief and I make it knowing that I will be liable to prosecution if in it I have stated anything I know to be false or do not believe to be true.

Now for some more ring-fencing: you draw attention to WHY THE CONTENTS OF THE STATEMENT MUST BE TRUE.

You turn to why he made the statement, that the matter was important to him, perhaps that it was made to a police officer, or lawyer, was official, and formal, and that as a record he appreciated it might be used in court proceedings, that he read it over, was careful to be sure its content was what he meant to say, in his own words, he was not being told what to say, and that he understood every word in it, had his reading glasses (if he uses any), can read, read it over, signed it after consideration, was not incapable of understanding its content, was sober, of measured mind, with events fresher in his recollection than in court.

If you do not do all this, when you later put the inconsistency he will usually claim he did not read the statement over, it is inaccurate, they were not his words, he did not understand it was important, was still drunk, on medication, distracted by aliens, whatever... he will slither like an eel out of the trap - and he’ll get away!

Only after he has agreed the statement is what he meant to say, only then, GO TO THE INCONSISTENCY - not earlier.

And take the witness to the inconsistency, precisely, crisply, pinpointing the relevant section which contradicts his testimony... exactly... and read it out - don’t ask the witness to read it out - you do it, or the witness will again slip away, pretending not to be able to read, will have forgotten his glasses, will start from the wrong section, will read only that which embarrasses your case, and will take over the pace of the cross-examination - no, you read the section, asking him to follow.

Here is what you say:

‘On page three, in the second paragraph, on the third line, we see a sentence which starts ‘I was in the frontroom...’, do you have it?

(Pause while the witness catches up).

‘Please correct me if I read this incorrectly. Your statement reads: ‘I was in the living room on Monday morning. I have a cat. It is black. The cat likes to sit on a mat in the living room, only that morning, the cat was nowhere to be found. ”

(Pause)

(Look to the tribunal)

Now pull the lever.

‘In evidence you say the cat sat on the mat, in the statement you signed as true you say the cat was not around - you’re not reliable, are you?

You drive an unanswerable rhetorical wedge between the answers. This is pure bounce - it won’t much matter what the witness says.

It is the moment of ACCUSATION.

Which if you followed the map above should be unanswerable.

Obviously, the lever on previous inconsistent statements is the bread and butter of cross-examining defendants, whose police interviews are often very different to their court testimony.

Learn to do it well - it is a critical feature of effective cross-examination.

The key concepts to using a previous inconsistent statement are:

Confirm the evidence in chief,

then Ring-fence it so there is no weasling out of what was said later;

next, produce the Original,

confirm its Authenticity,

refer to the Declaration of truth,

and ring-fence him further, this time into Why the statement is true;

now Go crisply to the inconsistency, reading it out, and then Accuse.

Taking the first letters of the key words confirm, ring-fence, original, authenticity, declaration, why, go and accuse, we have CROADWGA and we can create a mnemonic sentence:

Carefully ring-fence or a dodgy witness gets away.

If you follow the meaning of the mnemonic, and the meaning of each of the first letters, most cross-examinations on inconsistent statements will work remarkably well.

And remember, the absolutely critical feature is the two stages of RING­FENCING -

ring-fence the evidence as accurate, ring-fence the statement as reliable.

Let us summarise what we have learned.

Please remember - Don't cross-examine unless you really have to.

But if you have to, here are the ten rules again.

THE TEN TOTALLY TREMENDOUS RULES OF CROSS-EXAMINATION

1 Think commando.

2 When you have got what you want for your closing speech, stop, stop, stop.

3 Never ask a question to which you do not already know the answer.

4 Always ask leading questions.

5 Never ever, ever ask the witness to explain - never ask ‘-why’.

6 Reserve your comment for the jury, never ever, ever for the witness.

7 Never ask the witness for help.

8 Ask only one thing at a time.

9 When putting your case, tell the witness he disagrees with it.

10 Remember bounce for confrontations.

Look for the lever, but only use it for the ‘right’ witness.

And when using a previous inconsistent statement, always remember what the first letter means in each word of the following mnemonic:

carefully

ring-fence

or

a

dodgy

witness

gets

away !!!!!!