Cross-examination is the name given to the process of examining the witness (es) called by opponent or by another party in the case. Cross-examination is not, nor should it be, ‘cross’ in the sense of angry, nor need it be ‘cross’ in the sense of confrontational or controversial. Apart from applying the cardinal rule, cross-examination should be viewed as a constructive art and not necessarily a destructive one. While I want to exercise control over the witness, the most effective way would be to adopt a polite, courteous approach, use a combination of closed and leading questions and deliver them in the spirit of an inquiry.
My aims of cross-examination:
a) Aim 1: To advance my own case-this means I would ask questions which would seek to establish facts fitting in with or corroborating my case.
b) Aim 2: To undermine my opponent’s case-these two aims overlap, at least in the sense that anything which would advance my case at the same time undermines my opponent’s, but will have to keep the two aims distinct.
I would classify this witness evidence in relation to my client’s case is helpful. Provided my questions would be relevant and I would not seek to elicit inadmissible evidence, I am generally free to ask whatever questions I consider appropriate. The only restrictions upon my conduct of the cross-examination are the limitations imposed by the Code of Conduct, for example, I would not ask questions, which are ‘merely scandalous or intended or calculated only to vilify, insult or annoy the witness’. Therefore, the primary focus should be on my case rather than allowing the witness the freedom to re-harsh theirs. I would follow two golden rules:
a) Tell: wouldn’t ask! Include the answer I want in the question.
b) Lead, lead, lead- avoid open-ended questions wherever and whenever possible.
It is necessary in this case to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police?
Structure of my cross-examination:
I am not restricted to following the order in which my opponent examined the witness in chief. Nor am I limited of asking questions, which arise out of the examination-in-chief. In cross-examination, I want my questions to be structured in a way that makes them clear and logical to the trier (s) of fact but may be not so clear to the witness. The key here may be to have a gentle and patient build-up, through a series of relatively innocuous questions, until I have painted the witness into a corner. Finally, I have enclosed a copy of my questionnaire.