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Contents
- A. Introduction
- B. The basics…..
- C. Preparation
- 1. Witness Statements
- 2. Statements To Facts
- 3. Statements To Logic
- 4. Law and Case Law
- D. Questioning
- 1. Questioning Life Cycle.
- 2. About You
- 3. Phrasing
- 4. Attitude
- 5. Magistrates and Prosecutors
- E. About Your Witness
- 1. Being Nice First
- 2. Working to the point
- 3. Closing the gaps
- 4. Moving for the kill
- 5. Stressing the kill
- F. Next Cycle Begins
- G. The Kill – Double – Triple Bill
- H. The Answers
Introduction
This article is not indented to be a replacement to the already existing legacy of articles and books out there on cross examination. It’s merely a contribution to the already vast number of works out there with some practical hints and tips.
Cross examination in general is not an easy thing to do. There is several ways you can go about cross examining someone on evidence. It depends on the evidence you dealing with.
Mostly you will encounter the cross examination on a witness statement where the witnesses testimony in court now, differs from what he told the police, some time back. This is actually cross examination on documentary evidence, since the document will later be handed in as proof of the police statement, that document gets compared to the evidence he just gave in court and the discrepancies are lifted out. – The contradictions if you will.
I have written an article on how to get a statement of a witness in, even if he makes it very difficult or even impossible, to the lay the required basis for it. You can read it here.
There is as many techniques out there as there is attorneys doing cross examination. Unfortunately there is also a huge number of people who have no idea how to go about this and actually makes things worse as they progress through their questioning. One of my favorite past times, while sitting in court waiting for a case of mine to proceed is listening to other attorneys cross examining and their way of arguing for sentence and judgment. You can learn a lot just by opening your ears and paying attention.
I do not profess to be an absolute expert at this, I think one will always be a student in cross examination, one will always make mistakes, and one will always learn.
The basics…..
Cross Examination is about the way you phrase your questions as much as what you ask.
You need to have a direction you are working towards and an idea of how you will get there. There is no point in going on a relentless fishing expedition with no aim or purpose in mind. That will annoy everyone in no time and the court will loose its patience with you.
Although you might think the court can not see you don’t know where you heading, its actually quite evident to bystanders, and that includes the court, that an attorney is going nowhere fast!
Equally clear it is, even though no one might understand where you heading off to, that you have a definitive heading. So plan your questioning, what you need to accomplish and how you will go about it.
In the beginning, when you first start out at court, this is daunting; there are the nerves to content with. There is the unknown, there is the witness. There is the client who has placed all the faith in the world in you. Off course there is the magistrate who scares the living daylights out of you. And…..then there is you, who don’t have a clue where to start.
I can remember the first day I had to cross examine a witness; my hands where shaking so badly when I had to stand up behind that podium and had to start my questioning. It was so bad I could not hold the witnesses statement still, in order to read from it. I had to cross examine from memory!
The point here is, that the more you cross examine the less the nerves will become and the better your confidence and skills will get.
Off course provided you actually work at your skills. You will be surprised how many people are horrible cross examiners and intend to keep it that way (unconsciously off course)
So what will you be planning?
Comparing different witness’s statements.
First read the witness statements. Then compare the facts in the statements to each other. If we are dealing with a murder for example that has 5 eye witnesses. Compare each one’s version to the other, for clear and obvious ambiguities. That’s the beginning.
Get a nice piece of paper and start making notes. What I do is: I take a piece of paper and devide it into 3 vertical columns. Then I write a very short summary of the material facts that each witness states in the first column.
In the second column I write how it differs from every other witness. In the third column I write the line of questioning I intend to do.
I would be something like this:
Witness: PETE
| Statement | Other Witnesses Difference | X Exam Notes |
| Was at the lake 20H15, had braai | Jack says braai was at river | Start at beginning of Braai. |
| a braai with deceased. Jack, Jill | Jack says Tom pulled out gun | Why is there a difference in id killer |
| Tom, Dick and Harry is also there. | Jack says Jill shot Tom | How did Jill get the gun |
| Dick hits Tom (deceased) with fist Tom pulls out knife, stabs Dick in arm, Dick takes bazooka, shoots Tom to Kingdom come. |
