LPT401 NOTES
CHAPTER 18: CROSS EXAMINATION.
INTRODUCTION.
We spoke in the previous chapter about examination-in-chief, which largely is a trial
stage designed to allow both parties to trial proceedings to present their respective
evidence on the issues identified (The central question before court). Of course the
party who has the duty to begin will do so first. Once a witness has testified, the
opposing side will have a procedural right to question that witness. (Called cross
examination) This procedural right is also afforded to you once your opponent’s
witnesses have testified. (Both parties in trial proceedings will have this procedural
right).
The nature of questions in cross examination are adversarial (Aimed at showing your
version of events as more probable than your opponent’s).
TYPES OF CROSS EXAMINATION.
There are two main types of cross examination
1. Constructive cross examination – Aimed at strengthening your own case by
eliciting favourable evidence from the opposing witnesses.
2. Destructive cross examination – Aimed at attacking the reliability of the evidence
given by the witness or attacking the credibility of the opposing witness himself/herself.
WHAT ARE THE AIMS OF CROSS EXAMINATION?
The basic aim of cross examination is to make your case look better (Cross examination
for gain). On the other hand you still have to put your own version of the disputed facts
to opposition witnesses so that they may be allowed to comment on them (Cross
examination for duty). Cross examination is basically a tool of persuasion, in a sense
that it is used in an effort to have your own theory of the case accepted and your
opponent’s theory rejected.
These broad aims are ordinarily achieved through asking questions which are aimed at
doing the following:
1. You cross examine in order elicit favourable evidence for your side for opposing
witnesses.
2. You want to test or discredit the reliability of the evidence-in-chief of the opposing
witnesses.
3. You want to destroy or undermine the credibility of the opposing witness who is
giving evidence (Attach the witness personally).
4. You want to destroy or undermine the reliability of evidence given by a witness
other than the one being cross examined or the credibility of a witness other than the
one being cross examined.
5. You have to put your version of disputed facts to the other side’s witnesses who
can comment those facts
6. You also want to parade your own case.
CONSTRUCTIVE CROSS EXAMINATION: ELICITING FAVOURABLE EVIDENCE.
Your first priority in cross examination must always be to elicit favourable evidence from
opposing witnesses. The process of eliciting favourable evidence from the opposing
witnesses is not an easy exercise and therefore should be approached with extreme
care and tact. Your approach to opposing witnesses should then be:
1. To always be courteous with the opposing witnesses (You want to gain
something from them anyway)
2. Lead them gently to the answers you want them to give by asking appropriate
leading questions
3. Be able to bank the good answers (Do not ask one question too many, know
when you have achieved your goals with the witness and know when to stop)
DESTRUCTIVE CROSS EXAMINATION: DISCREDITING THE EVIDNCE.
One of the central features of cross examination is the stark difference between
discrediting a witness and discrediting the evidence given by a witness. When you aim
to discredit the evidence, there is no need to attack the person giving such evidence.
The focus should rather be on the subtle discrepancies in the evidence that may often
have nothing to do with the witness’s intention to mislead the court.
You can under these circumstances impeach the reliability of the evidence with the aim
of making it unreliable or less reliable. Remember that witnesses may only give
evidence of what they have personally observed , what they can remember and what
they can recount in their own words. Your questions in these circumstances will
invariably be focused on testing the following:
1. Witness’s observation- Focus on the circumstances under which the witness
made made the observation. In other words, circumsatnces under which the witness
saw, heard or experienced what he or she has recounted to the court.
2. Witness’s memory- Does the witness have a special reason to take notice of the
events at the time and recall them now. (How good is the witness’s memory? Did he
make any contemporaneous recording?
3. Witness’s ability to recount- Establish whether the witness is telling the story in
his or her own words. ( Did the witness hear the story from a third person who made the
personal observation?)
DESTRUCTIVE CROSS EXAMINATION: DISCREDITING THE WITNESS.
When you make a choice to undertake destructive cross examination and want to
discredit the witness, your attack is focused on the person giving the evidence directly
and personal. The aim is to show that the witness is not worthy of credence for
example, for the following reasons:-
1. The witness himself is biased- In other words, he has an irrational predisposition
in favour of one side (May have a motive to be untruthful). You want to show that the
witness is not to be believed for this reason or that less weight should be attached to
their evidence.
2. The witness is prejudiced against one side - He has an irrational predisposition
against one side.
3. The witness has interest in the outcome – You want their evidence to be
accorded less weight.
4. The witness has been corrupted- The witness has accepted a bribe or some
other advantage in return for giving favourable evidence.
5. Prior convictions – The witness has prior conviction for an offence involving
dishonesty.
6. Bad character demonstrated by prior bad acts ( E.g. submission of false tax
returns in the past may qualify as prior bad acts which may affect the witness’s
credibility)
7. Prior inconsistent statement – May have been made previously in writing or
orally.
8. Discrepancies – This focusses on contradictions (Where the witness contradicts
himself or herself or contradicts other another witness)
9. Inherent improbability- The evidence or the version given by the witness is
generally inconsistent with the inherent probabilities of the case.
10. The witness has a reputation for dishonesty.
THE DUTY TO PUT YOUR VERSION OF THE FACTS.
A rule in trial proceedings and in cross examination in particular, is that you have to put
as much of your version to opposing witnesses as they can reasonably be expected to
be able to answer.
Three qualifications are applicable in this regard:-
1. Put to the witness only that part of your version on which the witness is able to
comment.
2. Put only that part of your own witness’s version which conflicts with the evidence
of the witness under cross examination.
3. Do not put any version to the witness if you are not going to call witnesses to
dispute the version given by the witness.
RESTRICTIONS ON CROSS EXAMINATION.
During cross examination, all questions may be asked on all matters in issue before the
court. The cross examiner may ask questions which are aimed at eliciting favourable
evidence for his side even if the witness has given no evidence on the subject matter of
the question in their evidence-in-chief. (Questions which paint the event in a different
light are allowed and are regarded as good technique in cross examination).
CROSS EXAMINATION TO CREDIT
The cross examiner is allowed to ask questions that cast doubt upon the credibility of
the witness. These are questions that relate to the witness’s honesty and integrity. The
following areas may be explored in cross examination when credibility is tested:-
1. The conduct of the witness may contradict his own evidence.
2. The witness is prejudiced or has a bias or interest, adverse to the cross examiner
or has a motive to be untruthful.
3. The witness has previous convictions for an offence involving dishonesty.
4. The witness has made a prior inconsistent statement.
5. Has a reputation for being untruthful.
FAILURE TO CROSS EXAMINE
The greatest risk in not cross examining opposing witnesses is that the court may
accept their evidence, especially because it was not disputed in cross examination. The
general rule is that if you intend to contradict opposing witnesses or you intend to argue
at the end that their evidence should not be accepted, then you have a duty to cross
examine the witnesses on the disputed facts. (This is aimed at giving them a chance to
explain or to answer your side’s version of the facts).
STRUCTURE OF CROSS EXAMIANTION.
It is preferable to create and use themes for each witness in your cross examination.
Which area do I want to focus on with each witness? For example, the following themes
may be explored:
1. Constructive cross examination – Elicit favourable evidence.
2. Destructive cross examination - Observation
Memory
Recounting
Bias
Prior convictions
Prior bad acts
Prior inconsistent statement
Bad reputation
THE STRUCTURE THAT YOU MAY USE IN CROSS EXAMINATION.
1. Remember that cross examination is selective, in other words, the cross
examiner is at liberty to make a choice of the topics (themes) he intends to cover.
2. The general sequence of cross examination would therefore be as follows:
2.1 Elicit favourable evidence first.
2.2 Consider whether to discredit the evidence.
2.3 Consider whether to discredit the witness.
2.4 Put your side’s version of the disputed facts on which the witness is able to
comment.
TECHNIQUE IN CROSS EXAMINATION
1. Try at all times to be brief.
2. Ask only leading questions.
3. Do not ask the question if you do not know the answer yourself.
4. Listen carefully to the answers given.
5. Avoid arguing with the witness.
6. Do not allow the witness to repeat adverse evidence.
7. Never ask the why question. (Do not allow the witness to explain).
8. Avoid asking a question too many.
9. Save your explanations for the closing argument.
There are four main techniques in cross examination:
1. Confrontation
2. Probing
3. Insinuation (Suggestion)
4. Undermining
STUDY TABLES 18.1 UP TO 18.7
EXAMPLES OF CROSS EXAMINATION TO A THEME
For a general understanding on how to conduct cross examination as to theme -
-STUDY PARAGRAPHS 18.8.1 UP TO 18.8.12