FEATURE ARTICLE -
Articles, Issue 99: March 2025
Hearsay is pleased to provide this article on cross-examination. Whilst drafted with the conduct of criminal trials in mind, the salient principles essayed are equally apt to the conduct of civil trials. This article was assembled with contributions from the following members of the Queensland bar (in alphabetical order):
- Craig Eberhardt KC
- Angus Edwards KC
- April Freeman KC
- Andrew Hoare KC
- Saul Holt KC
- Jeff Hunter KC
- David Jones KC
- Elizabeth Kelso
- Mark McCarthy KC
- Tim Ryan KC
The time and input of such Counsel is greatly appreciated. We anticipate that it will provide a valuable resource to all barristers, irrespective of their level of experience.
For ease of reference the links to the earlier articles in Hearsay in this criminal law series are provided below, as is the mentioned video from Irving Younger – “Ten Commandments of Cross-examination” referred to by Ryan KC.
Cross-examination is a skill. It is a skill that requires time, patience, and a dedication to learning. There are several ways to develop your skills, such as reading transcripts or speaking with more experienced colleagues and asking for their advice. One of the best ways to develop your skills in the art of cross examination is to watch those who are great at it. Watching how a great cross examiner walks a witness down a path, not necessarily a path they want to go down, shutting each gate along the way. The witness ends up with only one path they can take, that the cross examiner has deliberately left open, securing the answer they wanted. Or, if the witness does not take that path then they look evasive or just plain wrong.
Mark McCarthy KC told us “Perhaps the best thing I can say is that reading about tips and techniques is essential, and must be done, but so is watching others cross-examine and thinking critically about what they do. And even more important is trying it out for yourself. Compare what you have read to what you see others do, then think about whether the things you have seen worked, or didn’t, and why. Was it execution, did it fit the witness, or the case? And then try it out for yourself. Do it in courses, in chambers, in silent mental preparation, and even by talking out loud to yourself (preferably while alone, or somewhere people will think you’re a busker and throw money). And in due course, when it suits you, use it in court. Learning how others cross-examine is fundamental. Applying that knowledge and developing what works for you is mastery”.
In that regard, Tim Ryan KC says you cannot go past American advocate Irving Younger and his ‘Ten commandments of cross-examination.’ “When I did the BAQ bar course they played Irving Younger’s video outlining his ten commandments of cross-examination and they remain the best guideposts to mould constructive cross-examination, whether you are just starting out or a seasoned advocate. The ideas Irving Younger has are communicated very effectively and should be revisited throughout your career. The best one is the admonition ‘what do you do when things are doing good, you stop. What do you do when things are going not so good, you stop’. The other person that people are less familiar with is American trial lawyer, Gerry Spence. Gerry Spence has never lost a criminal case and has written several books on advocacy, and in particular cross-examination. He continues to teach today, and his literature is well worth reading”.
Cross examination has several purposes:
- Establishing important facts helpful to your case that are not already in evidence.
- Confirming important helpful facts already in evidence.
- Bolstering the credibility of prosecution witnesses or defence witnesses who are helpful to your case.
- Impairing the credibility or reliability of witnesses who are not helpful to your case.
Those purposes are not mutually exclusive. It is possible, for example, to damage the credibility of a witness adverse to your case while still using that witness to establish facts helpful to your case. As defence counsel, securing evidence from a prosecution witness that helps your client can be particularly powerful for your case.
The key to an effective cross examination is to know exactly what you want to get out of the witness. Planning is important. During cross examination you want to control the narrative and elicit the information you require to incorporate into your closing address. A cross examiner should do everything that is necessary to advance the case theory and nothing that is not.
Craig Eberhardt KC shared this advice as to how he prepares for cross examination “[When] I start preparing cross examination of a witness, I assemble all of the statements, transcripts and exhibits relating to the witness’ testimony. Having all of the witness’ versions handy makes cross-referencing the material easier. I start by reading the witness’ versions (in the order in which they were given) and I make a numbered list of possible topics for cross examination references to the source material. As I read the material, I look for helpful evidence that I may get the witness to confirm.
I am also looking for inconsistent statements and/or inconsistencies between the witness’ evidence and the evidence of other witnesses and differences between the witness’ evidence and the objective evidence like photographs and video evidence. Once I have a list of all possible topics for cross examination for all of the witnesses I work out which topics I intend to cross examine upon. This step is the most difficult. Not all of the points you can make in cross examination will pull in the same direction. Work out the points you need to make and cull the rest.”
Your approach to a witness will depend upon what you want to achieve. Your approach may also depend on the impression you have gleaned of that witness’s personality during their evidence in chief and what impression you want the jury to leave with.
When you are reviewing the brief and you are presented with a witness who is damaging to your case you need to carefully plan your cross-examination. Think carefully about what you can establish through the witness that is helpful to your case? What parts of the witness’ evidence should be challenged? How might you damage the witness’ credibility or reliability?
The care required is best explained by April Freeman KC “It is critical in cross examination that every question you ask has a purpose and you know what that purpose is. If it doesn’t advance your case theory, then don’t ask it. This means that you have to have a clear idea of what your case theory is when you start preparing your cross examination. It also means that it is easy to then identify which witnesses you may not even need to cross examine, the topics and questions you may need to avoid and it also means you are prepared to readily answer any objections to your question – because you know what the purpose of it is and why it is relevant to the case. It is also important to remember that the question itself is not evidence, but rather the answer given, so if you are expecting a witness to adopt or agree with your proposition and it is important to your case, you need to think carefully about how you are going to frame or word the question, so that when the witness adopts it, you have the concession you need for your closing submissions at the end. For these types of questions, I often will write them out word for word so that I get it right when I am on my feet in court. A clumsily worded question which the witness then adopts may not in fact end up supporting your case when looked at in a transcript later on.
It also important to remember that you are not going to be great at cross examining witnesses straight away – it is a skill which requires practice, time and experience. So don’t beat yourself up if things did not go the way you had imagined or hoped. We all have bad days in court. The important thing is to recognise where you went wrong and how you might be able to improve things for next time. Advocacy is a continual learning process.”
If a witness is helpful to your case, there is no point in damaging their credibility. A better approach would be to simply lead the witness carefully to establish or reinforce the helpful facts you want.
The order of your questioning will be important in achieving your purpose. You should have a case theory, consistent with your instructions or in proving the elements of the offence. Consider how you can use the order of your cross-examination topics to develop that case theory. Remember, the most important people in the room are your jury. You want them to follow your narrative so they can apply it in your favour, and you do not want them to feel you are being deliberately confusing or unfair to the witness.
Having said that, Saul Holt KC offers this advice when preparing your questions. “It took me ten years to learn that writing out my questions in cross examination was totally counterproductive. It created a straight jacket from which I couldn’t escape when – as often happens – the witness struck a different tone to that you were expecting, or came into a proposition much more readily than you thought they would, or fought back on something surprising. Instead, my notes are of the key facts, propositions and prior statements of the witness that are relevant to particular topic I’m exploring. Letting go of the crutch of written out questions was terrifying but freeing. The other thing I wish I’d been told was to never, never never (never) start with the ultimate proposition you want to put to the witness. That always comes last (if you need to do it at all) after you have built and built and built all of the steps to make the proposition impossible to deny. Putting something to a witness and then fighting them about it for 10 minutes is never as effective.”
This, of course, is much easier when you have a cooperative witness because you can get straight to the point.
You had been drinking heavily? – YesYou were a hundred metres away from the fight?- YesYou were not wearing your glasses?- No I wasn’t.It was dark?- YesThe lighting was very poor?- YesFor all of those reasons you did not have a good view of the fight?- CorrectAnd for that reason it is possible that you did not see everything that happened at the start of the fight?- Correct
With a difficult witness you have to take a different and more disciplined approach, particularly if you think the witness may try to work out where you are going and change their evidence to head you off. With this type of witness you need to tread cautiously and carefully, establishing all of the subordinate facts and circumstances before tackling the contentious parts of the witness’ evidence or putting a proposition that you know the witness wants to disagree with. You should be careful to maintain control of your witness. This is much easier in cross examination than evidence in chief, because your questions should generally be leading, propositional and only contain one such proposition per question. Limit the use of “tag ons” like “I put it to you that”, or “I suggest that” or “that’s true isn’t it”. “Tag ons” limit your flow and your control. Try getting rid of them and feel the difference it makes.
Angus Edwards KC offers this advice “Most trials come down to a handful of witnesses, sometimes less than that. Cross-examination of the remainder should usually be conducted with a scalpel, get what you need and get out. Of the witnesses that really matter, for my part it’s the same, get what you need and get out, but that means something different for those important witnesses. Sometimes what you need is to expose problems with credibility or reliability and that might not be neat and straightforward. For those witnesses, have a plan but don’t follow a script, and if you have a script listen to the answers and be prepared to go off script. Be prepared to follow a witness where they go. Some of the most devastating cross-examinations come in the most unexpected of ways, so be plastic and mould your cross-examination to the moment rather than to a preconception. That gets easier with experience. When you are starting out though, the things you really want to cross-examine about are the things you want to talk about in your closing address. Cross-examination of key witnesses is, in many ways, just the first time you give that address, only you give it in questions rather than a soliloquy. Your questions should contain all of the things you want to say in your address.”
When your case is that a witness is lying you need to discredit him/her early in your cross examination to erode any favourable impression he/she has made on the jury. You may wish to draw out biases, prior criminal convictions, has colluded with other witnesses, a motive to lie and significant prior inconsistent statements are all good places to start.
If you have objective evidence that demonstrates the witness is mistaken or being dishonest then use that to your advantage. Lock the witness into their current version before taxing them with their earlier inconsistent version or showing them CCTV footage that shows something different to their account.
Andrew Hoare KC said:
“Do not blindly follow a myopic path when cross-examining. You need to be suitably empathic to not just what is being said but the way it is being said. Often you approach a witness with pre-conceptions of their personality due to the content of their evidence. You must be prepared to alter your tone of questions when it is apparent those pre-conceptions are misplaced. Some witnesses will naturally evoke sympathy in the minds of the jury but that does not mean you cannot draw from those witnesses’ appropriate concessions. Every cross-examiner has a different style, and I don’t suggest that there is any single correct approach. I try to be courteous as far as I can be, even in the face of discourtesy. Be acutely aware of the mood of the courtroom and in particular the jury. In that context, do not raise your voice at a witness unless the witness has not answered a clear question asked in a clear way and also, critically, you feel the jury have lost their patience with that witness. Approaching your cross-examination in that way makes you an ally of the jury and not their opponent. That will advance you client’s case.”
A message to prosecutors. Cross-examination is incredibly unlikely to elicit a confession to the crime you are prosecuting. You may not have a proof of evidence from the accused, but you will know what their evidence is likely to be from the cross examination of the prosecution witnesses, particularly the complainant. Prepare, and consider what is your purpose, for example are you looking to establish opportunity, lies, inconsistencies or motive. Always assume you may need to cross examine an accused and know what you need to cross-examine on to ensure that any propositions you wish to make in closing submissions are covered.
Before you embark on cross-examination you need to understand the rules of evidence. For example, learn how to properly cross examine on a prior inconsistent statement. Your questions can be pressing or persistent, but they should be relevant to an issue or to credibility and not prohibited by law. You should familiarise yourself with sections 15 to 21 of the Evidence Act 1977 (Qld). Make sure you comply with your obligations under Browne v Dunn (1893) 6 R 67. But, where possible, integrate what you need to put to a witness as part of the general flow of cross examination, rather than adding it on at the end.
If you are getting a hard time about the relevance of your cross-examination, Jeff Hunter KC says this is an example of where the law is your friend. Look to Wakeley & Bartling (1990) 93 ALR 79, 86, where Mason CJ, Brennan, Deane, Toohey and McHugh JJ said:
The limits of cross-examination are not susceptible of precise definition, for a connection between a fact elicited by cross-examination and a fact in issue may appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any general test of relevance which a trial judge is able to apply in deciding, at the start of a cross-examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun by securing a witness’ assent to a proposition of seeming irrelevance. Although it is important in the interests of the administration of justice that cross- examination be contained within reasonable limits, a judge should allow counsel some leeway in cross- examination in order that counsel may perform the duty, where counsel’s instructions warrant it, of testing the evidence given by an opposing witness. Lord Hanworth MR, in words which commanded the approval of the House of Lords in Mechanical and General Inventions Co and Lehwess v Austin and Austin Motor Co Ltd [1935] AC 346 at 359 , said:
Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the court, not forgetting at the same time the burden that is imposed upon the witness.
What do you do once you have achieved your purpose in cross examination? Sit down. When you are questioning a witness, and everything is going your way, sometimes as an advocate it can be hard to stop and be quiet. But there is nothing more dangerous to your case than going that one question too far. If you have all the answers you need, you have done your job. Stop. Often the most powerful cross examination is no cross examination at all. If you have everything you need from a witness’ evidence in chief, the only thing you risk doing is making it worse.
For those who are starting out, David Jones KC offers this guidance “If you are new to advocacy, know that there is no singular correct approach to cross- examination. Each advocate will develop a style that will suit their personality. That style will then mould to their environment, their opponent, the witness or even their solicitor’s client. In my experience, the days of barristers only having the one ‘gear’ whereby they shout and intimidate the witness has come or is coming to an end. Our Judges appear to be less tolerant of this approach, and more importantly, our jurors appear, except for the infrequent ‘deserving’ witness, to be unimpressed when such a course is taken. My first point of call is to settle the case theory and have an advanced draft of your closing address before you start preparing for cross-examination. This, in my opinion, is a must. Putting aside opportunistic targets, having both will provide you with a clear path to cross-examination. My next point is brevity.”
You will get better at cross examination with experience, but experience and skill are no substitute for careful preparation and planning. Good preparation will help reduce your nerves, allow you to maintain control of your witness and will give the impression to everyone that you are prepared, organised and that you know your case back to front. Ultimately that is your goal, so the jury can trust what you are telling them in your closing address, supported by the evidence you require.
After every cross examination force yourself to go through the painful process of reading the transcript and working out what worked and what didn’t.
And importantly, take every opportunity to go watch some great cross examiners in court!
The Acceptance and Initial Management of Criminal Briefs – Issue 93 September 2023Objections in Criminal Trials – Issue 94 December 2023Opening Addresses in Criminal Trials – Issue 95 March 2024Evidence in Chief in Criminal Trials – Issue 96 June 2024Maintaining your Selfcare During Trial – Issue 97 September 2024
Although we highly recommend that you do view it, for those members who presently do not have time to watch it – in summary Irving Younger’s 10 commandments on cross examination are:
- Be brief
- Use plain words
- Use only leading questions
- Be prepared
- Listen to the witnesses’ answers
- Do not quarrel with the witness
- Avoid repetition
- Disallow witness explanation
- Limit questioning
- Save the ultimate point of your cross for your closing argument
