The Singapore Law Gazette

The Art of Cross-examination

Introduction

I have been asked many times to give a talk on the art of cross-examination and have always politely declined. The reason is obvious. You cannot possibly teach an art. You can only acquire it in the course of courtroom experience yourself and not vicariously. However, by this article I will attempt to convey the art by means of anecdotes and suggestions which could assist young lawyers to draw on should they face difficulties during cross-examination. The caveat remains, an art cannot be taught.

I will cover the following pertinent areas:

1. The recognition of the difference between examination-in-chief and cross- examination principally that the cross-examiner can not only lead but should always lead the witness.
2. Examples of what constitutes a leading question.
3. Golden rule during cross-examination.
4. When not to cross-examine a witness.
5. Drawing on a solicitor’s innate strength and life experiences.

Differences Between Examination-in-chief and Cross-examination

The most important thing is to recognise the stark difference between examination-in- chief and cross-examination. In an examination-in-chief, a witness cannot be led. The questions are therefore open-ended. In cross-examination, leading questions are allowed. This is where solicitors do not take advantage as they should to lead the witnesses.

In most cases, solicitors in cross-examination tend to ask questions which are not leading. This occurs mainly because they have not mastered the salient facts. For example, if it is not disputed that the witness arrived at the scene at 11pm, there is no point asking him what time he arrived at the scene. However, this is what usually happens in most cases. Instead, the question should be, “when you arrived at 11pm xxxx”. To elaborate further, it would also be pointless to ask, “when you arrived at 11pm what did you see?” This is not a leading question. Instead, the question should be “when you arrived at 11pm, you saw xxxx”.

No Mandatory Sequence in Cross-examination

Most solicitors also during cross-examination start off by following the sequence that has been set by the examination-in-chief. It is almost as though that it is mandatory to follow the sequence. For example, the examination-in-chief will start off with the background facts leading up to the critical facts. During cross-examination, solicitors spend a lot of time with the background facts. These facts are usually not controversial. This gives the witness an opportunity to settle down during cross-examination.

The objective should be not to allow the witness to settle down and be comfortable with the questions. Whatever trepidation the witness may have of the cross-examination process would be diluted once they start answering routine questions which are not difficult to answer.

The Recommended Approach to Cross-examination

The better approach is to start off with the critical facts. This is where the real battleground is. The secret is to identify during preparation stage and during trial where the important contradictions lie. There is hardly a witness who does not give contradictory versions during testimony. Whilst the law is that contradictions have to be substantially material, recognising them is the first challenge for a cross-examiner. A contradiction is like a crack in the wall. It could be minor or major. If you want to break the wall down, it is easier to start with the major cracks. Likewise in cross-examination, one should start breaking down the witness with the major contradictions and not the minor ones.

The Golden Rule in Cross-examination

As a golden rule, the first five to 10 questions during cross-examination are critical. Always start with your best point and not keep it till last. Even if there are only minor contradictions, they can be expanded upon during cross-examination. The objective during cross is to obtain an answer that suits your case. The better cross-examiners simply require a yes or no answer from the witness and already know the answer that they seek from the witness. I witnessed John Mortimer QC (Rumple of the Old Bailey Fame) cross-examine a witness in the High Court of Singapore, where every leading question that he asked the witness had to be met with a “yes”, and every “yes” to the subsequent questions, contradicted the earlier “yes”. Given the way the leading questions were asked, the witness had no choice but to answer “yes”. John Mortimer QC was of course, the ultimate cross-examiner but the lesson to be learned is that the cross-examiner must know the answer that he seeks from the witness and not go on a witch hunt and take a chance with a question.

The reason why cross-examination is an art is because its source lies in the solicitor’s own personal and life experiences. This cannot be taught and is mostly innate. It helps if the solicitor has a life outside of his work. Some call it work-life balance. Social interactions outside of office hours and taking an interest in human behaviour adds to the sum total of experience which can be drawn on by solicitors during cross-examination.

Preparation for Cross-examination

Preparation for cross-examination is of course critical. It is important for a criminal lawyer to make the effort to attend at the scene of crime and not only rely on sketches and photographs. This is invaluable and should be undertaken as soon as the brief is taken as the scene does change over time.

There is a practice amongst lawyers these days to have a team of lawyers and interns attending court with their laptops, diligently taking notes. This is extremely useful as it frees the lead counsel from having to take notes and instead focus on the witness’s demeanour and digest the evidence being given.

The written word in the notes of evidence does not pick up the nervousness of the witness when giving evidence on certain areas. This should be picked up by a keen observation of the witness by the lead solicitor. Body language and eye contact tells many tales that can be useful for the cross-examiner.

Be Prepared for Objections to Questions During Cross-examination

There is also a tendency to prepare questions in advance. In one of the cases I did, I came across a very diligent DPP who was doing his first criminal case. I looked across his table and noticed that he had written down all his questions with prospective answers, “yes or no”. If yes, he would move on to another question and if no he would move on to a different question.

It must have taken him a long time to prepare the questions in his long record book. What he did not cater for were objections to his questions, which when sustained threw him off altogether. He had only planned for a yes or no answer. As a result, he applied to stand down the matter and was in disarray.

Whilst preparation is important and some do resort to writing down their questions in advance, the key is to pay attention to the evidence as it unfolds. Sometimes you can just start with one question and use the witness’s answer to ask a series of other questions which you never thought of before the trial.

Interns and lawyers who follow me to court always give me a look of surprise when I hardly carry more than one sheet of paper which mostly contains areas where I think I need to cross-examine. I sometimes end up not crossing on any of these areas. Instead, I pick up on what was said by the witness and continue on the same trail and try to achieve what I set out to do.

When Not to Cross-examine

It is prudent to be aware that sometimes there is absolutely no need to cross-examine a witness.

In a criminal case where the accused was charged with counterfeit audio cassettes, the Prosecution flew in a Japanese expert who examined one audio cassette out of the 40,000 audio cassettes that were seized and gave evidence to show that it was counterfeit. The Judge was surprised when I said that I had no questions for cross-examination. Instead, I submitted that there was no case to answer on 39,999 audio cassettes as there is no concept of proof by sample in criminal cases.

It is therefore important to pay full attention to the witness evidence and not cross-examine if little or no damage is done to the Defence’s case.

Another instance is where a group of young boys were observed to be behaving suspiciously by the store detective. They were seen putting items in their pocket. In his enthusiasm, the store detective went outside the shop to wait for them and arrested them as they came out.

In the course of the hearing, for some strange reason, the cashier was not called to give evidence that the items were not paid for. It was assumed that the evidence of the store detective was enough. It was not. It was not necessary to cross-examine the store detective as he was not able to give critical evidence as to whether the items were paid for before they left the shop.

No Obligation to Cross-examine

There are lawyers who seem to be obliged to cross-examine when called upon. In a criminal case, it is important to know what the ingredients of the offence are. If the Prosecution witnesses have given evidence with one ingredient missing, it is best not to cross-examine as by doing so they may bring up the evidence supporting the missing ingredient.

It is also important to understand the ambit of a witness and whether he is for or against the Defence. There was a case where the accused, a police officer, was charged with not taking action in the face of a brawl between some secret society members. At his trial, when the witness was asked if he engaged in the brawl, he said he did not. The Defence lawyer stood up to cross the witness to establish that he was lying and that there was a brawl.

This was absurd as the witness was helpful to the Defence but the lawyer was consumed by trying to prove him to be a liar, which was now the job of the Prosecution facing a hostile witness. He obviously lost sight of the evidence in his enthusiasm to cross-examine and prove the witness to be a liar. Solicitors should also be alert in court and understand the evidence unfolding before them and any interruption from the Bench. Judges, by their intervention, sometimes assist counsel but one should be aware of it.

A District Judge once told me that, in a criminal trial before him, the lawyer representing the first accused cross-examined the second accused as follows.

Q- How do you know the first accused?

1. We used get into trouble together.

J- Counsel, I will not record that answer as it is prejudicial to your client.

L- Thank you, Your Honour. I will ask my next question.

Q- What sort of trouble!!!

It was obvious that the Solicitor did not digest nor appreciate the reason for the Judge’s intervention. He was just following a routine he had set for himself. The absurdity of the last question escaped him completely.

The solicitor during cross must always strive to be in control of the witness, always remembering at the back of his mind that by the time he concludes his cross-examination, he has to achieve what he set out to do, which is to lead the witness into agreeing with him on whatever supports his case.

If at any stage of the cross-examination the solicitor has a sense that he is not making much headway, he should not stop abruptly but move on to another point and before he ends his cross, re-visit the point he was not comfortable with. There is no second chance once the solicitor says the sacrosanct words “no more questions”.

“Put” Questions

In the early days, especially during criminal trials, it was the norm for the seasoned cross-examiners to resort to what is known as “put” questions. Some, in a loud booming voice, stare at the witness and ferociously say “I put it to you that you are lying” then look back to the public gallery seemingly for approval. This is now thankfully, mostly outdated. You should only put it to the witness that he is lying if you have established it during cross-examination and not otherwise. Even then, the value of the evidence is limited. Whether he is lying or not is determined by the evidence. Besides, the witness is unlikely to agree that he was lying.

This is of course different from putting your case to the witness, in accordance with the rule in Browne v Dunn which is mandatory.

Conclusion

Cross-examination skill has been described as the most difficult skill to acquire in the repertoire of an advocate. It is indeed an art. It is also something that you cannot always plan for. Witnesses will surprise you with their answers. The old adage that “a lawyer should be able to think on his feet” is sometimes forgotten in all the preparation leading up to the trial. Such an ability is critical during cross-examination of a witness. He has to make quick decisions and maintain the rhythm of his cross-examination and not get thrown off track.

A senior lawyer once told young lawyers he was addressing during a talk to look at how he was dressed in a three-piece suit and the importance of being well-dressed in court. The art of dressing plays no part in the art of cross-examination.

Instead, a solicitor should go into his cross-examination of a witness with a clear mind without losing sight of the objective of obtaining answers that would assist his case. This is not an easy task and to succeed, the solicitor must draw strength from within himself including his own life experiences.

Therein lies the art of cross-examination. The art is within you.