Cross Examination

The importance of a well-prepared cross-examination

Cross-examination—a rigorous testing of a witness’s evidence—aims to scrutinise for inaccuracies and inconsistencies while giving the witness an opportunity to respond to contradictory versions of events.

Although often underestimated, it can be emotionally exhausting and disempowering, requiring thorough preparation, especially for foreign witnesses unfamiliar with adversarial systems.

In this video, Fiona discusses:

• the purpose of cross-examination
• the importance of a well-prepared cross-examination
• rule from cross-examination

Video script

Today’s topic moves on from examination in chief to cross-examination.

Cross examination is the testing and challenging of a witness’ evidence by the other side. It can last from a few minutes to three or four days. It has no equivalent in the civil law system and I find most foreign witnesses underestimate its rigours; it can be harrowing and emotionally exhausting. I have seen witnesses leave the witness box during a break and refuse to come back – which is great if it’s the other side’s witness, but not so good if it’s yours.

The purpose of cross-examination is twofold:

1. to test their evidence by subjecting it to intense scrutiny; and
2. to give them an opportunity to respond to a contradictory version of events. This is called the Rule in Browne v Dunn, an old English case that requires a witness to be given this opportunity as a matter of fairness.

The witness’ evidence is scrutinised by looking for inaccuracies, inconsistencies and admissions in the witness’ evidence which put into doubt the witness’ recollection and version of events. Legal teams spend days and sometimes weeks trawling through the affidavits and documents, looking for ways to challenge a witness’ evidence. Done well, cross-examination it can be extremely effective, especially if a witness is unprepared, or not telling the truth.

While the main purpose of cross-examination is to test the evidence, the aim is to get the judge (or the jury, if there is one) to prefer your own witness’ version of the facts.

Most of you have seen cross-examination on American TV shows. In reality, it is much less sensational than that. There is no shouting or accusations, no speeches, and no barrage of questions climaxing in the witness’s capitulation. None of these are permissible under Australian rules of evidence.

For example, a witness can only be asked one question at a time and must be given time to answer the question. Most witnesses are spoken to courteously and are permitted to finish their answers. It is simply the relentless, detailed questioning that brings to light inconsistencies and uncertainties and creates an overall impression of truthfulness or evasiveness of the witness.

Cross-examination is a very disempowering experience. All the power is held by the cross-examiner, subject to the judge. A witness does not know the questions in advance, does not know how long they will be questioned and is not allowed to talk about their evidence with anyone, including their lawyers whilst under cross-examination, even if it lasts for days. They are required to answer every relevant and admissible question that is put to them, whether they want to or not. They are required to remain in the witness box until they are excused by the judge.

The questions used in cross-examination are designed to be only able to be answered yes or no. This is so that the cross-examiner retains control of the answers. An experienced cross-examiner only ever asks questions he or she knows the answer to. A witness has no power. It is an uncomfortable experience for most people. Some personalities cope better with it than others.

Regardless of personality, it is really important to prepare your witnesses. This is especially true for foreign witnesses who are unfamiliar with an adversarial system.