Cross-Examination
Introduction
Cross-examination is arguably the most difficult and the most important part of a trial. Examination in chief, while critical, is basically just having witnesses tell their story and seldom poses difficulty.
A critical point to emphasize about cross-examination is that it does not consist of examining crossly! Great care must be taken to help your case and being abrasive seldom, if ever, achieves anything. Firm and determined examination is the way to go but never a hint of emotion should show, certainly not a hint of anger.
Legal Matters
Cross-examination is not required except in a very limited set of circumstances.
This is worth remembering because sometimes the best cross-examination is no examination at all. If there is nothing you can get from a witness then it is most prudent not to ask no questions.
Writing in the criminal context, Earl Levy, Q.C., put the difficulty well, writing:[i]
There is nothing sadder than seeing the cross-examiner use an aimless and scattergun attack on the prosecution witnesses hoping that something fruitful will occur for the defence. The almost inevitable result will be that the prosecution’s case is made stronger by this Russian roulette approach as the cross-examiner fills in gaps in the Crown’s case or, because he foolishly repeats the same questions as those asked in-chief, the witness repeats the same damaging answers. Worse, it may distract attention from the genuinely strong parts of the defence case.
In Canada there is no limit on the scope of cross-examination – any relevant question may be put to any witness.[ii] That said, generally speaking, unless cross-examination has a clear and unambiguous purpose it is better not to conduct cross-examination. No cross-examination is far more helpful than a bad cross-examination. The only exception to the principle that cross-examination ought to be avoided if it serves no immediate purpose is the Rule in Browne v Dunn[iii]. The Rule is well set out in the Dyck[iv] decision:
As a rule a party should put to each of his opponent’s witnesses in turn so much of his own ease as concerns that particular witness, or in which he had a share, e.g., if the witness has deposed to a conversation, the opposing should indicate how much he accepts of such version, or suggest to the witness a different one.
Introduction
Cross-examination is arguably the most difficult and the most important part of a trial. Examination in chief, while critical, is basically just having witnesses tell their story and seldom poses difficulty.
A critical point to emphasize about cross-examination is that it does not consist of examining crossly! Great care must be taken to help your case and being abrasive seldom, if ever, achieves anything. Firm and determined examination is the way to go but never a hint of emotion should show, certainly not a hint of anger.
Legal Matters
Cross-examination is not required except in a very limited set of circumstances.
This is worth remembering because sometimes the best cross-examination is no examination at all. If there is nothing you can get from a witness then it is most prudent not to ask no questions.
Writing in the criminal context, Earl Levy, Q.C., put the difficulty well, writing:[i]
There is nothing sadder than seeing the cross-examiner use an aimless and scattergun attack on the prosecution witnesses hoping that something fruitful will occur for the defence. The almost inevitable result will be that the prosecution’s case is made stronger by this Russian roulette approach as the cross-examiner fills in gaps in the Crown’s case or, because he foolishly repeats the same questions as those asked in-chief, the witness repeats the same damaging answers. Worse, it may distract attention from the genuinely strong parts of the defence case.
In Canada there is no limit on the scope of cross-examination – any relevant question may be put to any witness.[ii] That said, generally speaking, unless cross-examination has a clear and unambiguous purpose it is better not to conduct cross-examination. No cross-examination is far more helpful than a bad cross-examination. The only exception to the principle that cross-examination ought to be avoided if it serves no immediate purpose is the Rule in Browne v Dunn[iii]. The Rule is well set out in the Dyck[iv] decision:
As a rule a party should put to each of his opponent’s witnesses in turn so much of his own ease as concerns that particular witness, or in which he had a share, e.g., if the witness has deposed to a conversation, the opposing should indicate how much he accepts of such version, or suggest to the witness a different one.
In effect, unless counsel cross-examines a witness on a topic the counsel you may be deemed to accept that witness’s story. The rule is not absolute[v] but should be followed unless there is some very good reason to ignore it. This sometimes leads to bizarre examinations beginning as follows:
Now, witness, I am going to ask you a series of questions that we all know how you will answer, but I am obliged to put these questions to you in fairness and so as to comply with the rule in Browne v Dunn.”
The witness is put questions which are always leading and usually denied[vi]. No matter how unnecessary this may seem, omit to do it and counsel may be barred from putting their case at all if it is based on a denial of testimony counsel have been deemed to accept. As the Ontario Court of Appeal noted:[vii]
... a party wishing to impeach the credibility of a witness must ordinarily put the contradictory material to the witness in order to give the witness an opportunity to explain it.
Even if there was no Rule from Browne v Dunn good advocacy would suggest the confrontation of a witness with a damaging statement or contradiction is far more effective than the mere adduction of evidence inconsistent with that of the witness whose evidence is to be discredited.
Cross-examination must be focused and the questions must be clear. An unclear question is improper and can even lead to a retrial. Ambiguities must be avoided[viii]. Cross-examination as to character of the accused is improper unless the accused has raised their own character – that said, cross-examination on prior convictions (not charges) is proper going to credibility.
Cross-examination of an opposite party’s witnesses is a matter of right – but what about co-defendants? Can one defendant cross-examine the witnesses of another defendant? The question is not without difficulty, but the better view is that where the defendants are taking adverse positions cross-examination is to be allowed. Adversity was described in Menzies thusly:[ix]
An actual issue in tangible form spread upon the record is not essential, so long as there is manifest adverse interest in one defendant against another defendant. “Adverse interest” is a flexible term, meaning pecuniary interest, or any other substantial interest in the subject-matter of litigation.
Of course, even if cross-examination is not proper, examination in chief (by non-leading questions) must be allowed.[x] A right to examine witnesses (whether in chief or by cross) is a fundamental part of a fair trial.[xi]
Practice Tips
An even and steady tempo for cross-examination makes good sense. This author writes out, in full, all the questions he expects to ask. That said, of course the questions to be asked must be altered to meet the evidence arising from examination in chief – and drafting such questions “on the fly” can be difficult.
The principle that you must never ask a question to which you do not know the answer is not quite accurate – a better position is not to ask a question the answer to which can hurt your case. Moreover, asking questions that merely repeat the evidence in chief is unhelpful – short, focused and to the point questions are best.
Witness preparation is quite proper. While you must never coach the witness to tell a falsehood, it is proper to prepare your witness, in major cases anyway, on how to truthfully answer difficult questions in cross-examination. Most people go to Court very seldom and will be confused and awkward unless they are given some explanation of what to expect. Louis Nizer, the leading American counsel, writes:[xii]
The law permits you – it does more than permit you, it makes it your duty – to examine your witness carefully in advance to refresh his recollection as to dates and details by exhibiting documents to him which establish these matters; to acquaint him with the sequence of questions so that the truth may be established in orderly fashion and without confusion which may through doubt on it. It is the only way, in fact, in which you can present the truth. For truth never walks into a court room. It never flies in through the window. It must be dragged in by you....
The best preparation is to think about what questions you would ask if you were cross-examining and then to put those to the witness. Then listen and see if there is a way for the witness to answer in a clearer and more direct way. Remember, it is essential never to have the witness deviate from the truth – rather, the witness must tell the truth but in a way that is as clear and convincing as possible.
[i] Examination of Witnesses in Criminal Cases (Toronto, 1991), 145
[ii] This is not the case in some of the United States where cross-examination is limited to issues raised during examination in chief.
[iii] (1893), 6 R. 67 (H.L.)
[iv] (1970), 2 CCC 283 (B.C.C.A.), citing with approved, Phipson on Evidence
[v] R. v Verney (1993), 87 C.C.C. (3d) 363
[vi] Occasionally witnesses will not respond as expected and will admit the facts put.
[vii] O’Brien v Shantz (1999), 167 D.L.R. (4th) 132, 136
[viii] R. v. M.F., 2009 ONCA 617
[ix] Menzies v McLeod (1915), 34 O.L.R. 572, cited with approval in Aviaco v Boeing (2000), 2 C.P.C. (5th) 48 (Ont. S.C.)
[x] Whiton v Pilot (1996), 132 D.L.R. (4th) 568 (O.G.D.)
[xi] Marchand v Public General (2000), 51O.R. (3d) 97
[xii] “The Art of the Jury Trial” (1946), 32 Cornell L. Q. 59, 66
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