How to Conduct Cross Examination Effectively
Ralph Waldo Emerson once said, “Nothing great was ever achieved without enthusiasm.” Similarly, when working on a legal case, a wise strategy must be prepared before entering the courtroom. As far as testing the knowledge and credibility of a witness during trial is concerned, different techniques and tactics can be utilized. Cross-examination is a method to not only ask questions and get the truth out of a witness, it can also control anything adverse that the witness might say during questioning. Cross-examination is a form of art which can be learned through training, practice and experience.
Obtaining information prior to cross-examination requires a lot of effort from the lawyers. Lawyers may even get the opportunity to approach witnesses informally so they can understand their mind and nature during an interview, which can be helpful in discrediting their testimony later. In some cases, during cross-examination, lawyers are unable to extract the answers they require. This can often be the result of insufficient knowledge or preparation, causing the case to be decided in favour of the opposing party. The desired results cannot be achieved until the evidence presented by a witness is challenged and proved to be flawed.
Lawyers can prepare well for cross-examination and use impeachment as a tool to assess the strength, weakness and worthiness of the evidence presented by a witness as well as the credibility of the witness before the court, for instance if a witness statement is inconsistent, if the witness is a convict, if the memory of the witness is unreliable, or other objections raised against the testimony of the witness.
If we review the history of cross-examination, we find that it is an old method. The very first reference to such a technique can be found in the Bible, specifically in the book of Daniel, Chapter 13 which mentions Susanna and the elders in her tribe who tried to put her to death but were interrupted by young Daniel who raised his voice to demand justice against the real accused.
All laws related to evidence in all courts of Pakistan have been addressed under the Qanun-e-Shahadat Order 1984 which altered the Evidence Act 1872. Chapter 10 of the Qanun-e-Shahadat Order 1984 deals with cross-examination of a witness and describes the whole procedure.
Moreover, many comprehensive law journals, research papers and articles on cross-examination have been written by authors and columnists, which can help lawyers and cross-examiners in understanding the method of cross-examination from different perspectives:
- According to a publication titled Cross-Examination for Prosecutors released by the National Highway Traffic Safety Administration, a branch of the US Department of Transportation, cross-examination is an effective method to impeach and test the credibility of the evidence provided by a witness.
- Maryland Bar Journal (2015) also discusses altered evidence or testimony given by a witness which can discredit any previous statements.
- William Rakes and James O’Keefe (2017) have also written about methods to impeach witnesses.
- James W. McElhaney (1992) describes the process of asking questions during cross, shares views on how to lead the questioning and suggests why short and simple questions should be asked throughout the process.
- John Zavitsanos in his insightful and widely read research paper on cross-examination has written about witness credibility and how to deconstruct it.
- Similarly, Maureen A. Howard in a newspaper article Lair! Lair! Impeaching the Witness on Cross-Examination writes about a lawyer’s right to impeach witnesses during cross-examination.
- A research paper by the Canadian Bar Association, Impeachment Done Right (2011), describes the methods to expose an omission within the evidence put forward by a witness.
- Ervin A. Gonzalez’s article, To Prepare and Conduct Effective Cross-Examination of an Adverse Witness, published by the American Bar Association in 2000 is very helpful in providing information on how to conduct effective cross-examination during trial.
- Strategic Cross-Examination (1987) by Stuart B. Walzer discusses strategic steps that can be taken to conduct cross-examination.
- Cross-Examination of Witnesses by Leon Jaworski is also a very helpful piece for law practitioners to educate themselves regarding the methods of cross-examining witness testimonies.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.