Joy Merriam offers her 10 top tips for effective cross examination
Effective cross examination can be the difference between success and failure in a criminal trial. In a single witness case, if you undermine the central plank of the prosecution case, this can lead to a submission of no case to answer. In other cases, your success in denting the prosecution case can form a compelling part of your final speech to the jury.
If your client’s case is incredible (“So, you fell on my client’s knife…”), get it out of the way early
It is important that cross examination holds the jury’s attention and focuses its collective mind on your client’s case. Here are my 10 top tips for getting it right.
1. Cross examination must be structured. Forensically examine the witness’s evidence and ask yourself: “What do I hope to achieve from cross examination of this witness?” Make a list of these points.
2. Make sure your questions advance these points. Do not re-hash the evidence in chief – for instance, “So you went to the club at 9pm…” The jury has heard it once, and will lose interest.
3. Keep your questions short and clear so the witness and the jury will understand them. Avoid long, convoluted questions.
4. If moving to a new topic, indicate this; the judge will appreciate this and the jury will be able to follow more easily.
5. Put your client’s case – this is an evidential requirement. If your client’s case is incredible (“So, you fell on my client’s knife…”), get it out of the way early.
6. Be a bit left-field – when starting, try to find a question that will throw the witness and put them on the defensive. For example, if you have made a successful bad character application, you may wish to start with that: “No stranger to these courts, are you, Mr X?”
7. Take a good note of their evidence in chief, and compare it with their written statement to find differences and / or omissions. You may wish to put that statement to them, to show they have been inconsistent; however, remember that if they look at it, they may ‘remember’ something you were pleased they had forgotten, so this is a tactical decision.
8. Consider the use of open and closed questions. Although the answers to closed questions are (usually!) more predictable, if you are making headway with the witness, you may want to use a more open question to draw the witness out.
9. Stop when you have achieved your jury point; avoid asking one question too many and allowing the witness to regroup.
10. Always try to have a killer final question on which you can sit down. If all else fails, try “You have just come here today to tell a pack of lies, haven’t you!”
Good luck, and enjoy!