This was the holding in the case of Hussy LATA v R(1959) Cross-examination Is basically to raise doubt on the case of the prosecution. Because of this a lot of latitude is allowed in cross examination and one can ask anything they want to ask as long as they are relevant to the case. The act of cross examination is important for the defended counsel in the criminal case because of the latitude. One Is trying to build the basis for their defended during cross examination. The aim of cross-examination is to disqualify the case of the adverse party and try to obtain favorable admissions from the witness.
Cross examination need not be unified to matters raised in the examination In chief. A witness may for Instance be asked questions to test his or her accuracy, veracity or credibility. They may also be asked questions to discover who they are and what their station in life is, all one is seeking to do is to discredit the witness. Annoying questions can be asked and It Is up to the court to exercise discretion If they are unnecessarily offensive If they go more than to prove the matter. Section 154 – leading questions may be asked.
If a question is asked of a witness in cross examination which relates solely to the credit f the witness, the court has a discretion to compel or not to compel the witness to answer the question, the court decide whether a witness should answer a question that relates primarily to their credit this is provided for in Section 157. In exercising the discretion to compel or not to compel, the court weighs the extent to which the Imputation casts on a person’s credit is proximate to the suit. Section 163 gives ways of impeaching the credit of a witness In cross examination.
You call the witness to testify to the unworthiness of credit of a particular witness. You can also call proof that a witness has been bribed or that the witness has accepted the offer off bribe or any other corrupt inducement to give evidence. You could also Impeach by proving former statements oral or written made by the witness which are Inconsistent with any part of the witnesses evidence. Fourthly in a charge of rape, or attempted rape evidence can be brought to show the complainant was of generally immoral character. In cross-examining, there is no general modus operandi. It depends on the witness you are dealing with.
People will Insist that you have a police officer or professional dinettes, police officers tend to be arrogant especially to junior lawyers and they are not easily trapped. The best way to deal with them is to start where they least expect coached they will not tell lies. You have to be careful how to handle them otherwise they can start to cry. One has to be extremely sensitive when handling children’s witnesses. John Motto V. R The prosecution witness produced ghastly photographs of the murder scene which offended the child and the counsel was cautioned by the court to stop offending the child.
If you have experts and to avoid embarrassment, do not cross examine them unless o are well versed with the subject. The Art of cross examination Below are some rules and by following this few simple rules, you can make your cross examination great. An effective cross examination starts at deposition. Some attorneys wait until trial to prepare their cross examination outlines. That’s too late. You need to try out your cross examination questions at deposition. In fact, every question you intend to ask at trial should be asked at deposition so you know what answer to expect at trial.
If it’s an answer you like, then you have a ready made question for trial. If not, dump it. If it did not work at deposition it won’t work in front of six Jurors. Don’t ask a question if you don’t know the answer. Something you have heard over and over is that you don’t ask a question at trial unless you already know the answer. Trial is not the time to be surprised. Be surprised when you investigate your case, when you receive responses to interrogatories or at deposition. But don’t be surprised at trial. But how do you find out the answers to the questions you intend on asking?
Simple. You find out the answers in deposition. Do your work in deposition o take the guess work out of trial. When you’re at trial you will know what the answers are because they will be in black and white in the deposition transcript. Prepare a cross examination binder. Prepare a cross examination binder for every witness you will cross examine at trial. The binder will contain your cross examination outline and your impeachment materials. First, prepare a detailed cross examination outline. Start by brainstorming the topics you want to address during your cross examination.
Such a topic could include witness bias. For each topic area, prepare a two column chart. On the left column, include all the questions you intend to ask the witness. I suggest, however, that instead of writing out the questions, that your write out the answers you expect to elicit from the witness. At trial, when you look at your outline and see the answers, you’ll know what question to ask. In the right column, across from each answer you intend to elicit, cite the source of note or some other document. If you can’t find a source for the answer, don’t ask the question. Why?
Because if the witness does not give you the answer you want, the en you have written down on your outline, you won’t have anything with which to impeach him. That brings us to the second part of your cross examination notebook. Behind your outline, keep all your source documents, your defaced impeachment materials. The document you’ll be relying on the most will be the witness’s own deposition, where months, or perhaps years before, you tried out all your cross examination questions. Ask only leading questions. Cross examination is not the time to ask the witness to tell his story.
Don’t ask open ended questions. Ask only leading questions which suggest the answer. You want to direct the witness to give you the answers you have in your outline. Don’t give him the opportunity to say something else by asking open- ended questions. Don’t use the word “correct” at the end of your questions. Don’t end your leading questions with such words as “correct” or “isn’t that so. ” In fact, don’t ask questions. Instead, make statements and get the witness to agree to them. Instead of saying, Mimi treated the plaintiff on January 23, 2003, correct? Simply make the statement, muff treated the plaintiff on January 23, 2003. You’ll get the same answer whether you ask the question or put it in the form of a statement. Such words as “correct” detract from the power of your cross examination and if used at the end of every question, become distracting and downright annoying. Ask “yes” questions. When you ask leading questions, you want to ask questions that require only a “yes” answer. You want the witness to agree with you and say “yes” to your questions as often as possible. You want the Jury to see and hear the witness agreeing with you time and time again. O’er an orthopedic. ” mimes. ” muff treated Mr… Smith. ” mimes. ” “At the request of his attorney. ” mimes. ” “And you charged his attorney $600 for that examination. ” mimes. ” “An examination which took twenty minutes. ” mimes. ” The more the Jurors hear the witness saying “yes” to your questions, the more the Jurors will perceive that the witness is agreeing with you and with your position. Only include one fact per question. Avoid asking long-winded questions that are overburdened with facts. Keep your questions simple and only include one fact per question.
By doing this, you keep your cross examination clear and crisp. Also, it’s easier to impeach a witness about a single fact as opposed to a whole host of them. In addition, single fact questions increase the number of questions you can ask the witness to which you will get a “yes” answer. You would rather have the witness say “yes” to you 50 times than 5 times. Don’t argue with the witness. Sometimes cross examination does not go as planned. You expected. Some attorneys would argue with the witness. If you find yourself here, stop. Consider moving on to the next question on your outline.
Start Strong. End strong. When you’re organizing your outline into topic areas, start tit a topic that makes a strong point and end the same way. Consider starting with the witness’s bias. By doing so, you color all the witness’s answers. Don’t ask the ultimate question. It’s tempting, after getting the witness to agree with you again and again, to ask the ultimate question. Don’t do it. Very rarely will you get the answer you want. For example, if you’re cross examining the Plaintiffs theater, you may ask 30 or more questions detailing every time the plaintiff did not show up for physical therapy.
You will leave the Jury with the impression that the plaintiff did not amply with doctors’ orders and, in the process, may have compromised his condition. But whatever you do, don’t ask the witness the ultimate question. For example, don’t ask the doctor the following: “By not going to physical therapy, you agree, doctor, that plaintiff compromised his outcome? ” The doctor won’t agree with you. He’ll find some way to explain how plaintiffs repeated non-compliance had absolutely no affect on the plaintiffs outcome. It’s tempting to ask that ultimate question. Do it at your own peril. Instead, argue the ultimate point in your closing.
If you insist on asking the ultimate question, do it at deposition. In fact, I strongly recommend you ask ultimate questions in deposition. Every once in a while you’ll get a witness to agree with you on that ultimate question. If they do, ask it again at trial. If the witness refuses to agree with you, impeach him with his deposition testimony. Effective cross examination comes down to preparation. If you want to get the answers you want, you need to lay the groundwork long before trial commences. Because in real life, unlike television, you don’t have a group of writers scripting a devastating cross-examination.
