10 rules of cross-examination in criminal trials
There are few topics in the law written on as extensively as cross-examination. Cross-examination is to a lawyer as is the breakaway shot is to the hockey player, the Oscar-winning monologue to the actor, or the entrée to a very good meal.
Cross-examination is the climax of any good lawyer movie, and for good reason. It is exciting, dramatic, emotional, intense, and at times stunningly brilliant. We all remember Jack Nicholson in A Few Good Men after being questioned, cornered, and cajoled by Tom Cruise shout “You can’t handle the truth!”. Metaphorically it is a scene that every lawyer tries to replicate as they approach to dais, hoping for the moment they break the witness down to tears or emotion that solidifies an acquittal or conviction. In reality, this rarely happens; however, it does not take away from the effectiveness of a good cross-examination.
Every litigator has their own style and theories on what makes an effective cross-examination, and no one in particular is categorically right or wrong of how that is defined, or what rules must be followed or avoided. In the end, effectiveness comes down to persuasion, which can be achieved through infinite means and through any individualized style.
Notwithstanding, here are several observations I have made over the years conducting many criminal trials. I hope some of these insights may assist some lawyers in developing the style that they think is most effective for their own particular style.
1) Have a purpose.
Throwing muck on the wall and hoping something sticks is a sure way to bore and confuse a judge or jury. Impeaching witness on collateral issues may be impressive and amusing to you, but it does nothing to further the interest of the judge or jury in trying to figure out what happened on the issues that are relevant.
Before putting on your menacing glare and unsheathing your Mont Blanc pen, ask yourself “What am I attempting to obtain from this witness?” Is it damage control? What admissions can I obtain? What admissions do I want? What risks are present? How does their evidence fit into my overall theory? Do I want them credible or incredible, or incredible on certain aspects but believable on others? Have an objective for every witness and an understanding on how they mesh in your overall theory.
Having a purpose is directly tied into the tendency I see over and over again by inexperienced counsel seeking to “destroy” every witness. Despite this being an adversarial process, not all of the opposing party’s witnesses are adversarial in whole, or part, to your position. For example, if a police officer has a helpful line of observations in their notebook that is consistent with your theory, why attack them? Again, having a purpose directs your examination to exactly what you want from a witness, why want it from them and not others, and when to stop – which brings me to my next point.
2) Sometimes silence is more powerful than words.
Although not as entertaining, refraining from asking a witness any questions can be a very powerful statement to a judge or jury. For many litigators, particularly inexperienced ones, there is an insatiable desire to ask questions, no matter how irrelevant, innocuous, or risky those questions may be. If the witness has already testified in a manner that is helpful to you, does not hurt your case or theory, or the risk outweighs any reward, then stand up confidently and state to the Court: “no questions”.
To a judge or jury, your silence implies that the witness’ evidence is acceptable or does not concern you in the slightest. This comes with the caveat that you must ensure you meet your obligations set out in Browne and Dunn, i.e., confronting relevant witnesses on evidence that you intend to introduce through other means, when they have the ability to do so.
3) Remain professional.
Juries, judges, and witnesses can all detect emotion and that is precisely what you are trying to extract in a favourable way from the person sweating in the witness box. Therefore, it is not something that you want to portray as counsel. For a lawyer to show emotion that is beyond what one would expect of a professional is counter-productive. In particular, anger and frustration have no place on counsel’s countenance. If you are justified in your internal anger and frustration with a particular witness, then the jury or judge likely feels the same emotion.
Your patience and fairness can even be amplified by their witnesses’ behaviour that may stoke those emotions. Professionalism and patience adds to your credibility as counsel. Emotions also cloud objectivity and your ability to assess whether your examination is having the intended effect.
4) Never interrupt a witness.
Listening to a lawyer and a witness trying to speak over one another is painful to the judge or jury. Whatever points you think you may be scoring, they are either being drowned out by the witness or the jury has tuned out the dissonance. Controlling the witness is important but interrupting them is never the way to obtain that. It may also portray you as being unfair and sharp with a witness if you are not letting them answer the questions fully. If a witness is unnecessarily prolix that it would require some form of intervention, then that direction should be sought from the Court. Rather than interrupt, an effective response I provide to an unresponsive witness is “That was all very interesting if I was asking a question about _____; but for the sake of everyone in this Court, can you please answer the question I asked you” to which they invariably reply “What was the question?” to my response of “Exactly.”
5) You must know how evidence and trial procedure works inside-out
If you do not know how to hammer a nail, you shouldn’t be building houses. It is the same thing with lawyers. If you cannot understand how to properly impeach someone, what rules of evidence apply, and what fact you are trying to elicit or undermine, then your structure will crumble. There are few things more effective in trial than a powerful impeachment but it must be done properly and a manner that is organized and concise. An entire blog entry, or book, could be written on effective impeachment.
Suffice to say that impeachment requires a proper understanding of the law, practice and purpose. Are you allowed to impeach them? Is there actually an inconsistency? Is that inconsistency important? How is it important? Do you want them to adopt the initial statement or undermine their credibility at large? Where is the inconsistency in the statement? Here is the simplest (and perhaps most boring) of examples in trying to have someone adopt a prior statement that you want them to adopt as opposed to undermine:
Q: You just indicated to the court the car was blue?
Q: Do you remember providing a statement to police on the night of the robbery?
Q: Were you telling the truth to the police at that time about what you saw?
Q: You were sober and aware of what had just happened?
A: Of course, I just saw it all clearly.
Q: The statement was immediately after the robbery was it not?
A: It was. About 10 minutes after.
Q: And like all humans, your memory would be better immediately after the event than it would trying to recall things 6 months later, as you are trying to attempt here?
A: Sure. That makes sense.
Q: Can you please look at this?
Q: And what is that?
A: The statement I provided to police on the night of.
Q: And you would agree that you told the police that the car was yellow?
A: Yes, it appears I did.
Q: You already indicated you were not trying to mislead police that night.
A: Of course not.
Q: And you agreed that your memory would have been better that night, 10 minutes after the event?
Q: Its fair to say that looking at this now, the car must have been yellow, and you are simply mistaken now, 6 months later trying to remember things as best as you can?
A: I guess so.
6) The primacy and recency effect
All people, including judges and juries, remember things at the beginning and at the end of a sequence. For example try to remember the following sequence 4839098322. As you read on, you most likely remember the numbers 483 and 22. The number sequence is just an example of how information is retained by our minds.
Understanding that, putting the most important parts of your cross examination at the beginning and end will assist the jury in remembering the aspects you want them too. Similarly, putting the information that is less favourable in the middle has the psychological effect of having less impact – i.e. examining on a criminal record of your client. One example of this used in practice is an immediate confrontation of a murder weapon of an accused: “Do you recognize this sir?” while holding the bloody knife in your hand.
7) Avoid opinion and submissions to the witness – establish facts, not conjecture.
Opinions are like noses, everyone has one and they are only useful to the person whose face it is attached to. Counsel should never provide opinions on the witness’ evidence, or make sarcastic remarks. If an argument is to be made on the incredulous aspects of a witness’ evidence, save it for your closing submissions. Being sarcastic comes across as abusive and is not helpful to any judge or jury in their roles of fact-finding. If you have established the facts properly there is no need for hyperbole or opinion as you will have already accomplished that. Keep your opinions to yourself and let the facts do the talking.
8) Listen to the answers.
Too often litigators will be so entangled in their meticulous questions that they fail to see manna raining from heaven. It is not uncommon for a witness to offer information that, although is not part of your script, is very favourable to your case. Pay attention to the answers and the side-issues raised by the witness. Asking a few more exploratory questions on a collateral issue may be the very thing you need to win your case. This skill may require some comfort and skill with the unknown but practice and experience will allow you to ask those exploratory questions without creating substantial risk to your case.
9) Save your fury.
If every witness is treated like the Colonel who ordered the Code Red in A Few Good Men, the routine is going to get very tiresome. This is not to say that witnesses should never be approached with all the professional sound and fury you can muster – however, they must deserve it. Some witnesses will never deserve this treatment no matter how much they may be mistaken or lying. For example, making a 10 year old sexual assault complainant cry, rarely gets you very far. Chose your battles wisely and when necessary, and only necessary, lay your vengeance upon thee. Ask yourself when is the last time you were persuaded by an argument by someone yelling at another? The same can be said for juries and judges.
10) Develop your own style of cross-examination.
In the end, cross-examination comes down to a personal style that is developed over the years and crafted to match the strengths and weaknesses of the individual lawyer. One lawyer’s effective modus operandi is not easily transferable to another. Effective cross-examination usually many examinations to develop, and many more to master. Hopefully some of the observations I have made over the years in conducting hundreds of criminal trials serve useful in developing and mastering your own style.
Barrister & Solicitor, Certified Specialist in Criminal Law