Easy does it!

The Supreme Court’s decision in Thompson v R [2006] SCNZ 3 (15 February 2006), in which answers to questions at trial were held not to have caused unfairness, gives us an opportunity to reflect on the art of cross-examination.

In my view, the following ten are fundamental points that must be remembered by counsel faced with the task of cross-examining a witness:

1. Find out beforehand the worst that the witness could say, from your client’s point of view.

2. It is unlikely that the witness will be compelled, by your questioning, to tell lies that suit your client.

3. If you are trying to get the witness to change an assertion, it may be best to start by suggesting reasons the witness may be honestly mistaken. This is because an aggressive approach to cross-examination is less likely to find sympathy with the jury than an approach which assumes the witness will in good faith acknowledge ordinary human failings.

4. An aggressive approach is unlikely to succeed with an aggressive witness. Gently hinting at common sense reasons for the witness’s error is preferable, especially if the jurors are likely to accept them.

5. Where the witness can be contradicted by his own previous statement, make the most of that by getting him to give as much “detail” as possible first, before putting the contradicting statement. This applies as long as the witness is unlikely to have been wrong in the previous statement, and where that earlier statement is more favourable to your client than the witness’s present testimony.

6. There is a duty to put your client’s case to the witness. This can be done point by point, in questions that take the form “Didn’t X?”, “Didn’t Y?” etc. This is stronger than the formula that is commonly encountered: “My client will give evidence and say that X, what do you say to that?”

7. Don’t ask unnecessary questions. Don’t ask questions that are open-ended, such as “Why do you say that?” Lead the witness as much as possible, to give your questioning a focus that the jury understands. One of the purposes of cross-examination is to get the witness to say what you want him to say, to score a point and/or to undermine your opponent’s case.

8. Don’t ask questions that you don’t know the answer to, unless the whole tenor of the case points in the direction of the answer you want and any other answer would lack credibility.

9. If you have to attack the witness as a liar, remember that this strategy may result in the jury learning of your client’s own bad character (including previous convictions).

10. If your client is of good character, and if you rely on that as part of your case, take opportunities to use it in cross-examination; this can be tactically advantageous as it should result in the judge directing the jury on your client’s good character.

In Thompson, experienced trial counsel was drawn in to engaging in what the Court of Appeal called a “slugfest” with the witness: see R v Thompson 16/6/05, CA445/04, para 56. This, of itself, was not necessarily an error, as the Court of Appeal noted, at para 66:

“… robust cross-examination is one of the many options open to counsel, who must be accorded wide discretion.”

But the Court added, para 69:

“Generally, counsel find it politic to conduct cross-examination with ‘a measure of courtesy’ ….”

The conclusion, upheld by the Supreme Court, was that the evidence that was inadmissible but which was given in cross-examination, when seen in context, and in the light of a strong warning by the judge to the jury about its use, did not cause a miscarriage of justice.