Professional Documents
Culture Documents
A.
INTRODUCTION
(a)
by
emphasizing
contradictory
facts
and
(b)
Aron, R., Duffy, K., and Rosner, J., Cross-examination of Witnesses, p. 30 (1989 ed.).
(c)
(d)
improbabilities
and
testimony.
inaccuracies
in
the
direct
(e)
while
on
cross-examination,
the
lawyers
(f)
B.
DIRECT EXAMINATION
According
to
Justice
Ricardo
Francisco,
direct
Although
success in a trial, the great majority of cases are won or lost upon the
persuasion of the court.7
1.
Going over all details with the witnesses beforehand will help
them remember the facts better in court; they will also have more selfconfidence, will know what is required of them, and will make better
and more intelligent witnesses in every way.10
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
10
Id.
(j)
the
problems
created
by
being
non-responsive
or
The preparation of the witness requires that you must sit down
with the witness and go over very carefully with him what he will
testify in court. In other words, you must prepare the witness to testify
by reviewing with him the questions you are going to ask and his
proposed answers. There should be no surprise questions during the
trial.
Songsteng, J., Haydock, R., and Boyd, J., The Trial Book, p. 213 (1984 ed.).
Mogill, K. and Gonzales, R., Examination of Witnesses, p. 21 (2000, 2 nd ed.).
Remind the
13
14
2.
10
(a)
(b)
short
and
focused;
make
the
concise
information
and
and
to
details
the
point.
should
be
(c)
19
20
11
(d)
(e)
The
can
actually
visualize.
However,
avoid
12
(f)
Also, because a
(g)
You must
in
chronological
presentation
of
the
13
(h)
It is
14
direct
examination.
You
may
minimize
its
(i)
should
be
used
during
the
direct
In
(j)
any
suggestion
that
the
It
direct
27
28
15
(k)
Vary the pace or tempo of the examination. The danger of the trials degeneration into stultifying
monotony is ever-present.29 To avoid monotony, you
have to vary the pace, tempo or rhythm of your
examination. As suggested by one textbook:
of
words
may
also
indicate
The
intensity.
C.
Cross Examination
Effective cross-examination in a broad sense means one that
16
1.
17
Cross-
18
must know exactly what facts you want to elicit during the crossexamination of each witness.
It is especially important in preparing the plan of crossexamination of a witness that you note all prior inconsistent
statements taken by the witness as well as those that are inconsistent
with other witnesses. All fact showing bias or prejudice on the part of
the witness must likewise be noted. In sum, all points to be covered on
cross-examination must be prepared in a coherent way to facilitate the
courts understanding of the thrust of the cross-examination.35
2.
19
You
cannot just read a book on trial and then step out and try cases.37
3.
Purposes of cross-examination
(a)
Purposes of cross-examination
i.
ii.
Conducting
destructive
cross-
20
In attacking the
as
by
showing
the
lack
of
38
21
Thus, you should not always undertake a destructive crossexamination. Remember that a destructive cross-examination is one
that attempts to discredit a witness or his testimony so that the court
will minimize or even disregard what the witness has stated. If you
have been successful in obtaining significant admissions, you may well
decide to omit any destructive cross-examination at all.
You cannot
have your cake and eat it too. It would not make sense to argue to the
court that a witness favorable testimony should be believed while the
part of the testimony you attempted to discredit should be disbelieved.
Accordingly, where the witness admissions have been helpful,
thereafter
conducting
destructive
4.
39
40
When to Cross-Examine
Id.
Id.
22
cross-examination
will
only
After a witness has finished his direct testimony, ask yourself the
following questions before automatically rising to begin your crossexamination:
(a)
(b)
41
23
(c)
If the
(d)
It may well be
omitting
damaging
part
of
his
42
43
24
(e)
because
you
dont
have
any
and
no
possible
avenue
for
(f)
To repeat, the better part of discretion may be to say No crossexamination in such a way as to leave the impression that you attach
little importance to the testimony of the witness. This course of action
Id.
Schwietzer, S., Cyclopedia of Trial Practice, p. 614 (2 nd ed., 1970).
46
Mauet, T., supra note 12, p. 217.
44
45
25
is indicated where the facts in the case, and the testimony rendered,
leave you with no targets to aim at, no points to weaken or color.47
5.
Style of cross-examination
You should be yourself. Use the style that is natural to you, that
you feel comfortable with. Do not try to copy someone elses style.
The style that is natural for you will invariably be the one that is the
most effective as well.48
Every cross-examiner, no
matter how experienced, careful, and talented, will get bad answers to
questions. When this happens, a good poker face is invaluable. Dont
react to a bad answer, no matter how damaging. Simply go on as if
nothing happened.49
beating and ridiculing the witness. Make the witness feel that you are
Schweitzer, S., supra note 41, p. 606.
Mauet, T., supra note 12, p. 227.
49
Id.
47
48
26
merely trying to elicit further information from his end to make clearer
the testimony he has already given. Lull the witness into a false sense
of security so that his answers will be spontaneous and he will not
withhold information which he would otherwise disclose.50
The only exception to the rule that your demeanor toward the
witness should be an entirely friendly one is when you are crossexamining a perjurer. As advised by an authority on the subject: Be
mild with the mild, shrewd with the crafty, confiding with the honest,
merciful to the young, the frail, or the fearful, rough to the ruffian and
a thunderbolt to the liar.51
6.
(a).
(b).
fact.
Weiss, S., supra note 7, pp. 116-117
David Paul Browns Golden Rules for Cross-examination, quoted in Wrottesley on the
Examination of Witnesses in Court, pp. 102-104, cited in 2 Francisco, V.J., Trial
Technique & Practice Court, pp. 783-785 (4th ed., 1999).
50
51
27
(c).
(a)
52
28
opinions and stories designed to focus [the court] on the issues the
witness thinks most important.53
You
Your leading questions must not only suggest the answer, but
must declare the answer. For example, instead of saying Do you
like to drink?, which in itself may already be considered leading, your
question should be phrased like a statement You like to drink, asked
in such a way that by your intonation and attitude, you make it obvious
to the witness what answer you are expecting. This question tells the
witness what answer you require; it declares the answer.56
During
cross-examination,
your
job
is
to
make
principal
29
It enables
Q.
A.
A.
Yes.
It is not likely that the witness would have volunteered the more
graphic description, preferring instead to recount the events in
relatively inoffensive terms. The leading question, however, forces him
to reveal the details.58
57
58
30
Q.
A.
No, I didnt.
The leading question, on the other hand, results in the same words, but
with a different emphasis:
Q.
A.
No, I didnt.
In the leading question, you control word selection, tone of voice and
emphasis.59
(b)
31
(1.)
See spot?
(2.)
(3.)
question: Q. You saw the blue car come around the corner, and sped
through the red light? A. No. This compound question contains five
facts to which the answer No might apply. Does the No refer to the
color of the car, the speed of the car, or the color of the light? Did the
witness see anything at all?
Q.
A.
Q.
60
32
B.
Q.
A.
Q.
A.
Q.
A.
Yes.
The blue car came around the corner?
Yes.
It drove through the red light?
True.
As it drove through the red light, it was speeding?
Yes.61
The
61
62
33
Q.
A.
Yes.
Q.
A.
Yes.
Q.
A.
Yes.
Q.
A.
Probably.
Q.
A.
No.
Q.
A.
Yes.
Q.
A.
Q.
A.
No.
Q.
A.
Q.
A.
Yes.
Q.
A.
Yes.63
35
Q:
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
(c)
36
7.
While these
37
(a)
38
minimize
the
impact
of
the
direct
testimony.
and
intelligently
formulate
follow-up
39
digging.
as
possible.
Do
not
try
to
challenge
cross-examination
will
invariably
create
two
40
This
It only serves to
8.
on
cross-examination,
you
may
be
better
off
not
Another
factor
to
be
considered
before
you
attempt
unsuccessful attempts are often worse than mere failures. The effort
to impeach is itself a charge against the witness. When impeachment
is unsuccessful, the position of the witness in the eyes of the court will
probably be improved, both because of his ability to withstand your
effort to impeach him and because of a natural inclination to
symphatize with one against whom false charges are made.70
69
70
41
(a)
impeached, you must signal to the court that you are not
bringing up the subject merely to verify the direct
testimony but you are instead raising the testimony as an
issue to be disputed. Your question must have a set up
phrase that signals to the court that this is a different
story.
Example:
Q.
71
The discussion is principally based on the book of Pozner, L., supra note 27, pp.331349
42
Q.
(b).
(c)
be
related
to
him
[the
witness],
with
the
If the
43
The cross-
the
orienting
of
the
foundation
of
impeachment.
an
inconsistent
statement
by
an
allegedly
dishonest witness.
Q:
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
(d).
Yes.
You knew why you were being questioned?
Yes.
You promised them you would tell the truth?
Yes.
You were being questioned about the death of
a man?
Yeah, Crown.
These detectives had your full attention?
Sure did.
So, when they asked questions, you made sure
to listen?
Right.
And then you answered their questions?
If I could.
And you answered truthfully.
As best I could.
They asked you if you were watching the whole
time as Crown was killed?
Yes.
But what you told the Detectives Sable and
Caplin that day is not what you swore to this
jury today?
No, it wasnt.
What you told the Detectives that day is this
(Madam prosecutor, I am at page 27, line 10 of
the transcript of the interview of March 13,
1986): question by Detective Sable: Did you
see your father hit him with the hammer?
Your answer, at line 14: No, no, I wasnt
looking, I was walking down the stairs when I
heard a noise and I turned around and Crown
was falling down the stairs.
The cross-
9.
(a)
In resolving the
46
questions that the witness had no difficulty answering during the direct
examination.
witness is still evasive, you may decide to drop the matter after the
cross-examination has proceeded to a point that the evasion by the
witness is apparent to the court. Another way to compel the witness to
give a direct answer is to request the court to instruct or order the
witness to answer the question.
73
47
Q.
A.
Q.
A.
Q.
A.
Q.
74
75
Did you talk with your brother during the noon recess?
No.
Didnt I see you in the corridor, talking with your brother,
near the settee out there?
Oh, yes, he asked me a question.
What did he ask you?
(Pause) I dont want to tell you.
What did he ask you?
48
A.
I told you I dont want to tell you, and you dont want to
know.
Counsel, addressing the Court: I wish you would order him to
answer the question.
The Court: All right, Mr. Lipper, I am afraid you will have to
answer the question.
A.
(b)
76
49
expose his lies, he will lose his confidence and your task of
destroying his testimony becomes easier.78
You
should
allow
the
witness
to
testify
freely
and
apparent even to him that his story is absurd, ask him to retract
and repudiate his earlier testimony.79
50
collateral matters.
80
81
Id.
Id, see also Keeton, R., supra note 3, p. 139.
51
(c)
with your own expert as a general rule and seek his suggestions
concerning potential lines of inquiry that may be fruitful in your
cross-examination.
field to make you familiar with the subject and to look for sources
of potential impeachment.
82
52
omitted such data with the purpose of leaving the witness more
qualifications to add if you should undertake to question his
expertise.83
83
84
53
If the expert
agrees, you can later argue that the other partys expert
supports your side since your assumptions are true. If the expert
disagrees, you can later argue that the expert is biased and will
never change his opinion regardless of the facts.85
54
attack.
Having
86
55