Recently, I was asked to speak at a New Zealand Bar Association Conference on cross examination. Others to speak on different aspects of advocacy included the Chief Justice, Justice Douglas White, Miriam Dean QC, Grant Illingworth QC and Simon Moore QC. It is an interesting exercise to try and articulate what we do in court and why we do it the way we do. In case it is of interest, I have reproduced my notes for the conference. Apologies if much of it seems all too obvious....
CROSS EXAMINATION NOTES
Purpose of cross examination
- To obtain evidence from a witness called by an opposing party that is helpful to your case or, conversely, that damages the opponent’s case
- The purpose of cross examination is not to damage your case or to help your opponent’s case – therefore it is important to decide at the outset what cross examination is likely to achieve your objective and what is not.
- Testing parts of a witness’s evidence in circumstances where it is most unlikely that the witness will be shaken will achieve nothing other than to allow the witness to re-state his or her evidence and thereby to establish his or her credibility and damage your credibility as counsel.
- Not all cross examination is a challenge to the accuracy of the witness’s testimony. Some cross examination may be directed to topics or matters that are likely to be in the witness’s knowledge and which may be helpful to your case and which may not be able easily to be proved by you by other means.
- Cross examination can also be a useful way, if you are the defendant, of foreshadowing the case that you will be running. That is, it can be an advocacy tool as well as the means of satisfying Brown v. Dunn obligations (Evidence Act, section 92).
Limits on cross examination
- With one exception, cross examination is confined to topics or matters that are relevant as pleaded. A question that goes outside these limits is therefore open to objection. See Lawton LJ in British Rolled Steel  Ch. 246, 309, 310.
- The exception is that it is open to the cross examiner to challenge a witness’s credit or credibility by raising collateral matters that are beyond the scope of the pleadings.
- It is important to be aware however that the cross examiner is not able to seek to contradict the answers given on credit by leading independent evidence that establishes the untruthfulness of the witness’s answers. So if you were to ask the witness “It’s true is it not that you once ripped off a widow by tricking her into selling you her house at half its real value?” and he denies that, you cannot call the widow to contradict him or have documents produced that establish that he did. What you can do however, having received his denial, is to ask him – for example – to look at documents that you then hand him (say the contract showing the price that he paid and a current valuation at the time that shows the real worth of the property and then ask him: “Having read those documents do you still say that you did not rip the widow off?”. If he then agrees that his earlier testimony was wrong, your objective has been achieved. But if he continues to deny your proposition, that is as far as you can take it. In particular – and in either case - you cannot put the documents into evidence. [Note section 90(3) – obligation to show document given to witness to every other party.]
- One matter that can give rise to problems is the rule in Brown v. Dunn (now section 92 Evidence Act) which requires a witness to have expressly challenged those parts of their evidence that it will later be submitted should not be accepted or those parts of other evidence that it will be submitted should be preferred to the evidence of the witness concerned. The policy behind the rule is one of fairness to the witness – it is unfair to submit in closing that his evidence should be disbelieved if he is not first given an opportunity to defend himself or explain whatever criticisms are to be made of his evidence. [Refer Judgment of Hunt J in Allied Pastoral Holdings v. Commissioner of Taxation  1 NSWLR 1, 15-27.] This can be taken to extremes and applied to minor or peripheral matters that do not ultimately go to the determination of the case with the result that the cross examination becomes unnecessarily protracted. Avoid that result. The rules needs to be applied with common sense. In cases under the Commerce Act where the hot tub process is used, it has become practice for counsel to agree with the court that there is no necessity to challenge all the expert’s testimony. This simply reflects the fact that the hot tub process itself, with preceding exchange of briefs and reply briefs and introductory presentations and reply presentations, enables all aspects of the experts’ evidence to be fully ventilated and that full cross examination may not be necessary.
- Unfair, improper, misleading, complex, repetitive questions – section 85 Evidence Act
How to conduct a cross examination
- Obviously preparation, like everything else, is important. What needs to be done first is to identify those parts of the evidence in chief and other topics not covered by the evidence in chief that you wish to cross examine on.
- Under each topic or heading, you should also make notes identifying (a) particular sub-topics or issues and in each case identify also documents that you wish to question the witness about that are relevant to that matter.
- Do not write out questions – even worse a series of questions – that you intend to ask. That will only destroy one of the most important attributes of cross examination – flexibility. Flexibility in the sense of being able to react to the unexpected and to pursue, challenge or build on answers that you have been given.
- This leads to the most fundamental requirement of cross examination – listen to the answer you are given to the question and assess and evaluate that answer:
- First, was the answer truly responsive to your question. If it was not, then put the question again and demand an answer to it. If the witness continues to evade the question after 2 or 3 attempts at getting an answer consider asking the Judge to direct the witness to answer – though be sure of your ground first.
- The witness may try to avoid the question by saying I don’t understand the question. If your question has not been happily and concisely framed or is really 3 questions wrapped up together then you will have no choice but to re-formulate the question or to break it down into a series of separate questions. But if your question was clear and concise and you think that the witness is deliberately being evasive try: “What is it about my question that you don’t understand?” (a technique used by Tom Hughes QC of the NSW Bar to great effect)
- Secondly, the answer in many cases should provide the material for your next question and in particular may provide opportunities to open up a line of questions on some aspect of the answer that is given. In this respect, trust your instincts and don’t be too hesitant about moving into the unknown. The edict that you should never ask a question that you don’t know the answer to – what I call the first of the 3 fallacies about cross examination - is not one that the best cross examiners necessarily follow.
- Similarly, the edict that you should not ask that one question too many – the second fallacy - is one that if followed can simply leave you vulnerable to that question being asked on re-examination or by the Judge. Better to pursue a line of questions to a logical conclusion and one that, if the matter is contentious, confronts the witness directly. And if you do get an answer that is unfavourable to the line you are pursuing, then don’t just give up – pursue the matter further if your instincts tell you that the witness is prevaricating.
- Of course, following your instincts by asking questions that you don’t know the answer to or pursuing a line of questions to an ultimate conclusion does not mean that you should simply ask questions or follow a line of questioning irrespective of where that might lead. It does take courage to follow your instincts – and you will do so with greater confidence as you gain in experience. That does not mean recklessly asking questions without any regard to the fact that there could well be an answer that totally destroys your case. Example: prison riot case at Mt Eden where defence was one of wrong identification by police officer standing at distance on motorway extension looking down into prison yard. “How can you possibly have identified my client from that great distance?” Answer given: “Because I was looking at him through binoculars.”
- The third fallacy is “never ask an open question”. A cross examination that consists of nothing but closed questions demanding nothing more than yes or no will not necessarily be effective and an astute Judge will see that the witness is being confined. Alternatively, the re-examiner may be able to open the matter up by asking the open ended question that needed asking i.e. an explanation for what was done or said or not done or said. The correct course therefore is to undertake a line of questioning that is designed to “close the gates” – that is cut of potential escape routes in advance by putting specific possible explanations to the witness for confirmation or rejection (e.g. “you don’t say, do you, that someone forced you to take that course?”) If one of the explanations is agreed to, then that can be explored under your control. If the explanations are all rejected, then the question “Well then how do you explain why you did what you did?” or “Isn’t it obvious that what you did failed to meet the standards required of a company director?” will be one that ostensibly gives the witness a proper opportunity to defend himself/herself but the scope for doing so will have been considerably limited.
Cross examining expert witnesses
- Very challenging but satisfying
- Make sure you know the fundamentals of the expert’s discipline to a level that does not enable him or her to blind you with science. In this respect, do not hesitate to require the witness to explain technical terms in ordinary language if you feel that they are resorting to such terms in order to blind you with science. It is surprising how it is possible to demystify a science in this way and how apparently learned evidence can be exposed as being illogical. Logic is the weapon you have to destroy science – at least in the eyes of a Judge who is equally ignorant of the science.
- Ask your expert to identify the parts of the opposing expert’s testimony that are suspect. Do this beforehand of course and then trust your own judgment as to how you conduct the cross examination. Do not ask the Judge to allow your expert to sit next to you at the bar table while you cross examine. This will not be a helpful process.
- Do not try to be too ambitious. You will be most unlikely to establish that the expert is not truly an expert or that his or her entire testimony is entirely fallacious. Instead concentrate on trying to expose inconsistencies – either inherent in the evidence itself or with the published writings of the witness or previous testimony given in another case. This requires a fair degree of prior research and reading. If you can make the Judge think that the expert is unreliable or illogical in some aspects of his or her evidence, then you will have achieved a lot – at least so long as your expert has not shown the same characteristics.
- Again also it is important to focus on the key issues and parts of the evidence that will be determinative of the outcome of the case. Leave the peripheral alone unless you use it to expose obvious errors and therefore undermine the credibility of the witness.
Cross examining on documents
- The email has been very kind to cross examiners. Emails and other contemporaneous communications (obtainable on discovery or by subpoena) provide the most solid material upon which to test a witness’s testimony.
- It is always a strategic question as to whether you begin with an email or correspondence chain and take the witness through them, challenging him or her along the way on what has been said, or whether you put the propositions that are evident from the documents to the witness first and/or “close the gates” (i.e. cut off the escape routes) before doing so.
- Note section 90 Evidence Act as to disclosure of documents during cross examination.
- Often a cross examination must be fairly lengthy to be truly effective. Judges will tolerate this, so long as they think that you know what you are doing and that you are not simply floundering around with no plan of attack. On the other hand, do not cross examine just for the sake of it. In particular, care should be taken not to repair deficiencies or gaps in the evidence in chief by opening up evidence that should have been led but hasn’t been.