Cross-Examination Basics (2016)

The outcome of most trials depends upon the facts found by the Court; your best weapon in influencing the outcome of trials is good cross-examination.

Simon Couper KC shared the following insights at the Bar Association of Queensland’s Annual Conference in 2016.

The outcome of many if not most trials depends upon the facts found by the Court, rather than a decision upon some new or difficult point of law. The determination of the facts will usually involve a decision about resolving conflicts of evidence. The primary tool which a barrister has to influence the resolution of those conflicts of evidence is cross-examination.

Good cross-examination can win trials. Bad cross-examination can lose trials. Any barrister who professes to be a trial advocate needs to attempt to become as skilled as they can in cross­ examination.

The aim of this paper is to set out some views about cross-examination which deal with the basics. Much of what I say will be familiar and perhaps regarded as trite by many. However, it is rare to find these basics collected, and I hope the collection may be useful.

I will confine myself to cross-examination in civil trials, as that is the field in which I have experience.

Preparation

The essential starting point for any cross-examination is detailed and careful preparation. Preparation should be done well before the commencement of the trial.

You must know your own case. That means not only knowing the evidence which your witnesses will give, either orally or by affidavit or statement, but also knowing the full background to that evidence. Those matters which do not directly relate to proof of the cause of action may still be important to understand the full picture. Having the full picture is important in preparing cross-examination. The cross-examiner must understand the strengths and weaknesses of their own case.

For example, your principal witness may be going to give evidence that Xis true. For reasons which are sound, you may have formed the view that Xis unlikely to be true, but your witness will not be moved from the proposition that X is true.

Your rational doubts about whether X is true will have an influence upon the way in which you cross-examine the opposing witnesses about X. If X is central to your case, you are probably in trouble. In any event, you will not be preparing a cross-examination which centres on the proposition that X is true.

The cross-examiner must completely understand the other side’s case. There will, at the very least, be pleadings which must be analysed to understand where the conflicts of fact lie. If there are affidavits, statements or precis of evidence exchanged prior to the trial, then the cross examiner must analyse that material and identify the areas of conflict.

Cross-examination should only be about those things which matter. If there are conflicts of evidence which are peripheral and have no effect on the outcome, then unless one is fairly desperate to find a point, cross-examination about those conflicts is unlikely to serve any useful purpose. It is more likely to annoy the judge.

If time permits, some general background research sometimes pays dividends. Even internet searches can occasionally be fruitful. I had a case a little time ago in which the publicly available internet profiles of two of the witnesses stated matters of historical fact which contradicted the evidence contained in their affidavits for a trial.

In a fairly recent trial I was able to cross-examine the other side’s principal witness about an affidavit he had sworn in earlier proceedings between different parties, which unequivocally contradicted his evidence about the central aspect of the case. He said that he and his wife jointly owned a sum deposited in a bank account. The affidavit said that he was sole owner of that deposit.

The cross-examination was only possible because some considerable effort had been made to identify the existence of the affidavit and to obtain a copy of it.

Many cross-examinations which are regarded as being good examples of the cross-examiner’s art are really the consequence of careful preparation prior to trial.

Once you thoroughly understand both side’s cases and know what needs to be cross-examined about, the next step is to analyse the evidence.

If there are no affidavits or statements, the facts upon which the other side relies should emerge at least in broad detail from the pleading. From your preparation of your own case and discussions with your own witnesses you should have enough background to have a reasonable idea how the other side intends to prove their case, including what witnesses they will call.

In these days where lists of witnesses, affidavits or statements or precis of evidence are common, the cross-examiner’s job is a little easier.

I ask myself the following questions in preparing to cross-examine:

1. is the evidence internally contradictory, either within a witness’s statement or as between witnesses;
2. is there a prior inconsistent statement;
3. is the story being told by a witness consistent with contemporaneous documents (to know this, you will have had to go through all the disclosed documents on both sides. There is no short cut);
4. is the story consistent with objectively provable facts;
5. is the story consistent with ordinary human behaviour and common sense;
6. is the evidence imprecise or vague so as to suggest that the witnesses’ recollection might not be strong;
7. does the affidavit or statement look like the words of the witness, or is the language lawyer’s language;
8. are the witnesses’ versions of events too consistent, i.e. too good to be true?

From these basic questions one moves to preparing a plan of cross-examination for each witness. By a plan of cross-examination, I do not mean producing a list of questions as a script. I mean identifying the topics about which you will cross-examine each witness, and the general nature of the questions you will ask, and collecting and noting the material (the evidence of your witnesses, documents, etc) which you will use with respect to the cross-examination.

It may sometimes be a useful discipline to write out the questions you propose to ask on a topic, working out where the questions will go, depending on possible alternative answers. This will require you to think about precisely where you are trying to go. However, you must be prepared to depart from the script, and deal with the actual answers you get.

The trial – assessing the witness

Although affidavits or statements in advance are of great assistance in one respect, the downside is that the witness whom you are to cross-examine may give little or no evidence in chief. To be an effective cross-examiner, it is necessary to have an understanding of human nature and to develop an instinct for the behaviour of witnesses. Either by listening to the evidence in chief, or as early as you can in cross-examination, it is necessary to form an assessment of the witness in respect of their honesty, accuracy of recollection, level of confidence (in the range from arrogant to timid), use of and care with language (are they prone to overstatement or excessive certainty, is their evidence expressed in a confusing way, does it sound rehearsed) and level of objectivity.

These are all matters which should affect the way in which you approach a witness in cross­ examination. If you come across an honest witness, with a good clear recollection of the facts, who gives evidence clearly and coherently (a surprisingly rare event in my experience), you need to be able to make that assessment quickly. Your case is not assisted by attacking such a witness, because it will only give that witness a chance to repeat and reinforce the evidence. A short cross-examination directed towards things like the passage of time, vagaries of memory, and, perhaps, errors about peripheral matters is about all you can do.

Cross-examination

The first question is whether you need to cross-examine the witness at all. You should have worked this out before the trial. Does the witness give evidence damaging to you case? Is there evidence which the witness can give which supports your case? The witness may have been called by your opponent to give evidence about one topic, but you may know that he or she is capable of giving evidence about another topic which assists your case.

My rule of thumb is that if you wish to attempt to elicit from a witness in cross-examination evidence which assists your case, that should be done first, before you commence any attack on the other evidence which the witness has given. Often the witness will not realise that the topic you are asking about has any bearing on the case, because they have been focussed on the content of their evidence in chief. Some polite conversational questions about that topic can produce evidence of value.

Subject to the prospect of obtaining evidence to support the cross-examiner’s case, my general rule of thumb is that if you have a strong point, such as an earlier affidavit or a contemporaneous letter signed by the witness which directly contradicts the witness’s evidence, then it should be used early. Like almost every human being, a witness can be rattled and their concentration in adhering to a script can be affected by a cross-examination which at an early stage demonstrates to them that you know they were either untruthful or wrong. 

When I refer to adherence to a script, I am not suggesting that all or most witnesses are liars. However, experience shows that the human memory is imperfect. The process by which a witness gets to the witness box will almost certainly have involved the preparation of a statement or affidavit where the witness gives their best recollection of relevant events. There is often a tendency for reconstruction. Once the statement is prepared, the statement becomes for all practical purposes, the witness’s script. Reconstruction has become fact in the witness’s mind. Whether consciously or otherwise, many witnesses when they give evidence, rather than seeking to recall the original events, seek to adhere to the script which they have produced by way of a statement.

One consequence of this process is that for an honest witness, a demonstration that a part of their evidence is plainly incorrect may lead to a preparedness to concede at least uncertainty about central aspects of their evidence.

Some basic rules

There are a number of basic rules which guide my approach to cross-examination. They are not in any particular order of importance. I set them out as follows:

1. Listen to the answers given by the witness. It is remarkable how often over the years I have heard barristers cross-examining witnesses who give an extraordinarily favourable answer to the barrister’s question or a bizarre answer which demands to be followed up, and the barrister moves on to the next question in his or her list. If a witness gives an answer which is not responsive to the question that you have asked but opens up a potentially fruitful field of cross-examination, you must be prepared to follow the rabbit down the hole. Whether you do it immediately or come back to it is a matter for judgment on your feet, but you should not let an opportunity pass because it doesn’t fit in your pre­ arranged sequence. If you do follow the rabbit down the hole immediately, you must be organised enough to know your point of departure in your cross-examination plan and be able to come back to it.
2. Get an answer to your question. Many witnesses give unresponsive answers to questions in cross-examination. They either answer a different question of their choosing, make a speech, or say something which makes no sense. Ask the question again. I have developed a standard practice of saying, if the witness has avoided the question:“I will ask you my question again, please listen to it and answer it.” I have then asked the same question again. 
3. Do not give the witness the opportunity to repeat their evidence in chief, unless that is necessary as a preliminary to the particular question you have in mind. Do not feel compelled to follow the sequence of the narrative given by the witness in evidence in chief. It is usually better to ask questions out of that sequence, because the witness may well be used to only to telling the narrative in sequence. 
4. Control the witness. If you have a witness who is giving a long and non-responsive answer, tell them that you are going to stop them because they are not answering the question. Some judges take a more expansive view than others about what is a relevant answer to a question. However, in principal, it is important that the witness be made to understand that they cannot simply say whatever they like, whether it is an answer to question or not. Witnesses who are giving non-responsive answers are generally feeling under pressure and do not want to answer the question. That pressure should be maximised by insisting on an answer to the question and insisting on the cessation of a rambling non-responsive answer. There are some mechanical things which you can do to maintain control. To the extent possible, watch the witness and maintain eye contact. Body language is somewhat overrated as a science, but one can get an indication about the thought processes of a witness by their behaviour. Maintaining eye contact with the witness whilst he or she is answering a question is a simple way to maintain pressure. Be organised. Be prepared to ask the next question as soon as the answer is complete, if possible. Do not allow the witness to regroup during a delay.
5. Before getting to a critical point in the cross-examination, where an answer is of key importance, work out the escape routes for the witness and close them by asking questions which remove the possibility of the witness ducking the point.
6. Be scrupulously fair. This is obviously a matter of ethics, but it is more than that. An effective cross-examination is one where your opponent has no opportunity to make any submission that the witness has been bullied, confused or misled. Do not attempt to cut off a relevant answer, whether you like it or not. Do not ask double barrelled questions. Not only are these objectionable, but if they are not objected to, a judge may well take the view that they cannot be sure which part of the question was being answered and so discount the effect of the answer, to your party’s detriment. Do not misstate a witness’s previous answer or ask a question which assumes that the witness has accepted a proposition which they have not. Apart from anything else, these practices (misstatement, etc) detract from the value of the answers obtained.
7. Ask questions in English, not legalese. Short words are generally better than long words. Short questions are generally better than long questions.
8. Ask leading questions where possible. If you can, ask the question in a form which requires or at least encourages a yes or no answer. With many witnesses I have found it an effective technique to state a proposition and then ask the question “correct?”. This invites a yes or no answer, or at least, makes it obvious to a judge if the witness is being evasive. There is a so-called rule that you should not ask a question in cross-examination to which you do not know the answer. Stated in that absolute form, I disagree with the rule. I will discuss that topic separately below.
9. If I intend to ask a witness in cross-examination a question about a document it is my practice to show the witness the document and invite them to take as much time as they wish to read it. Others may have a different practice. Generally that different practice is born of a concern that, if the witness has time to read the document, they will recognise the proposed line of attack and be ready for it. That has not been my experience. There are very few witnesses under pressure in the witness box who can read the entire content of the document, work out what the question about it is going to be, and prepare a convincing answer. What in fact usually happens, I find, is that the witness’s tension level increases, making it more difficult for the witness to produce a convincing answer. In any event, if you have done your job properly you will have “closed the gates” on the range of choice of answers before you show the witness the document.
10. Be aware of the rule in Browne v Dunn. This paper is not the place for a detailed examination of the rule. However, you will have determined what things you must put to each witness in order to comply with the rule as part of your cross-examination preparation.
11. If you get the answer you want, stop. Move to a different topic or, if you have finished, sit down. There is a strong and natural temptation to revel in the thrill of success caused by getting an answer which you want on a vital point, by asking the question again, hoping to rub the point in by repetition. This is where self-discipline is required. The answer given once is sufficient. A repetition of the question only serves to invite the witness to retract, contradict or qualify the answer in which you were revelling. However, you must be sure that you have got the answer that you think you got. This means you must listen very carefully to the answers. It is completely impractical to make a note yourself of the answers to questions. However, you should ensure that your instructing solicitor is taking a detailed note of answers given in cross-examination, so that you can check your recollection of what was said. Make a conscious effort to memorise what the witness has said, word for word. This will at least ensure that you are listening carefully to the answer.
12. You will not always be able to get the answer you want. You will need to make an assessment on your feet, based upon your analysis of the characteristics of the witness and of the evidence which they have given, about how close you are going to get to acceptance of the ultimate proposition you need. Where the evidence is critical, you will have worked out a pathway to take you as far as you can. If you have not worked out a pathway, you have not prepared properly. Be ready to stop short of the ultimate question, if you assess that the risk of an answer damaging to your case is too high. There are many cautionary tales of cross-examiners who asked one question too many.
13. Cross-examination about the issues in the case is generally more effective than cross­ examination about matters going purely to credit. Unless a pure credit matter has real substance going to the honesty of the witness, then it is probably not worth it.
14. Do not go beyond your instructions when putting matters to a witness m cross­ examination. As discussed above, you should know with precision what your witnesses are willing and able to say, both on core issues and background facts. If in the course of cross-examination the witness gives evidence about a peripheral matter, which does not ring true to you, do not make the mistake of challenging it without instructions. I have had occasion where I have done that, to my regret, and found that my witness agreed with the evidence of the cross-examined witness.
15. Be prepared for objections. This involves two propositions. First, do not ask questions which should be the proper subject of an objection. Second, know the rules of evidence about cross-examination, so that if an unwarranted objection is taken, you can succinctly say why. Objections break the momentum of cross-examination. They need to be shut down, where they are wrongly taken, as quickly and efficiently as possible. If an objection is to the form of your question, it is usually better to rephrase the question, rather than to lose momentum by arguing the point.

How long should a cross-examination be?

The trite answer is as long as it needs to be. Do not waste time cross-examining about peripheral matters. Recognise when a dead horse has been flogged. If you are getting responsive answers which don’t assist you, there is a law of diminishing returns in repeatedly asking the question. Most judges will let you know when enough is enough.

Be selective. There will be a range of matters about which you can cross-examine, with a range of differing potential impacts. Recognise those points which have little impact and don’t bother with them.

Having said that, if there are a lot of issues, or a witness who is not disposed to answer questions the first time, or both, do not be deterred from properly cross-examining because it is taking time.

Should you ask a question to which you do not know the answer?

If this principle was applied as a general rule, it would, in my view, lead to cross-examinations which would be short but ineffective. Strictly applied, the rule would mean that one would only ask questions where the topic was a matter about which one had instructions, and therefore likely to be confined to the direct issues in the case where there is conflict. This does not leave much room for enterprising cross-examination or for testing a witness’s evidence. There are a large number of exceptions to the rule.

There will be questions which, however answered, are adverse to the cross-examined witness and the other side’s case. There will be questions about matters of background where one answer may lead somewhere fruitful on the way to contradicting the witness’s evidence and the other answer may lead nowhere, but neither answer causes significant damage. There will be situations where a witness has given evidence which on its face is illogical, implausible or dishonest. It is a matter of judgment, but often an invitation to explain the answer will lead to a demonstration about how fanciful the evidence is.

In my view, the true rule boils down to two propositions. You must think about every question which you ask in cross-examination and know why you are asking it and what you are trying to achieve. You must think about and assess the risk to your case if you get the answer that you don’t want.

Conclusion

Cross-examination does not come naturally to many people, but it is not a mystical art. It requires preparation, attention to detail, the application of logic and common sense.

Many of you will have seen Irving Younger’s well-known lecture about the rules of cross­ examination. His focus is on rules which should lead to the result that a person will not be a terrible cross-examiner and lose a case by cross-examination. With respect, I think that is the wrong focus. Your approach to cross-examination should not be driven by fear of failure. It should be driven by a desire to ask the right questions to get the right answers to win the case. Application of some of the basic principles to which I have referred in this paper is one step towards achieving that goal.