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By John Stratton SC
Deputy Senior Public Defender
1 August 2007
Cross-examination is the art of asking simple questions in the right order.
For the criminal defence lawyer, there are few things more important than cross-examination. In my experience, if a case is going to be won, it is usually during the prosecution case. As Phil Boulten SC once said, a case rarely looks better for the defence than the moment that the Crown says 'That's the case for the Crown.'
Some advocates seem to regard the cross-examination as an end in itself. My view is that approach is an error. It leads to the all too common situation of seeing an advocate conducting an effective cross-examination and then not making the most of it in the address or closing submission. Cross-examination is about providing the ammunition for a persuasive closing address or submission.
The art of cross-examination is something which can be learned. There are very few natural cross-examiners. One of the very few people who I can say is a natural cross-examiner is Winston Terracini SC.
Few of us are born with this gift, but fortunately, it is possible to learn to become an effective cross-examiner.
In this paper I will attempt to give you some ideas about how to become a more effective cross-examiner. I should stress at the outset that these are my personal views. In some respects, they do not represent the mainstream view about cross-examination.
I will give some suggestions about what approach to take in a particular situation. I don't suggest that my approach is the only correct approach. You may discover a better approach.
In an early draft of this paper, I attempted to diligently include the masculine and feminine or every personal pronoun. The result was that the paper was virtually unreadable. For that reason, although obviously many witnesses and clients are women, I have only used the masculine pronoun.
The most important thing about being a good cross-examiner is preparation.
There are two ways of becoming a better cross-examiner: watching good advocates, and practice on your feet.
One way is watching someone else who is really good at it. When I first started instructing barristers in the 1980s, I had three role models. One was Kevin Coorey, now Judge Coorey DCJ, one was the late John Terry, and one was Winston Terracini.
Each of them had a completely different style of cross-examination. Kevin Coorey would for the most part charm a witness into giving him the answers he needed. Winston Terracini would (and does) blast a witness. John Terry used to clinically slice up a witness piece by piece.
You can learn a lot about cross-examination by watching other people who are good at it, but don't imagine that it is possible to simply copy someone else's style. You need to develop your own style, a style which suits your particular personality.
There are some patterns or templates of cross-examination which have been developed over the years by advocates for particular situations. If you were left to your own devices you might work out through trial and error that this pattern of cross-examination works in a particular situation. However, watching good advocates at work certainly saves a lot of time, because you don't have to, as it were, re-invent the wheel. In this paper I hope to show you some common useful patterns of cross-examination.
Watching good cross-examiners is important, but there is no substitute for getting onto your feet and cross-examining witnesses yourself. That is the second way in which you can become a better cross-examiner.
Try to eliminate the 'ums' and 'ahs' from your speech. They are distracting for the tribunal of fact. If you have the chance, read your own transcript whenever you can. Early in your career, it will be a painful experience. It certainly was in my case. You may find, as I did, that my questions tended to drift, because I had not fully thought out the question before I opened my mouth.
In order to learn advocacy skills, you need to do a lot of each of these things, watching other good advocates, and doing it yourself on your feet.
Legal Aid solicitors sometimes ask me, what is better preparation for going to the bar, instructing barristers in trials, or doing it yourself in the Local Court. My answer is generally, a fair bit of both.
You can't properly cross-examine a witness unless you are very familiar not only with that witness's statement, but also the entire brief. This is particularly true in complex cases. In a complex case, cross-examining a single witness, without knowing what is in the rest of the brief, is a bit like trying to play a game of chess, when you only know the position of one pawn; that is, it is an impossible task. If you are familiar with the entire brief, then sometimes shifting a single witness to a small degree can effect the complexion of the entire case.
The first step in preparing cross-examination is having a thorough understanding of the prosecution brief. Because of the nature of prosecution briefs, this will probably involve reading the brief at least twice; the first time to understand what the case is all about, the second time to understand the importance of individual pieces of evidence.
I recommend sitting down with the brief with a pen, a yellow highlighter, and a pile of post-its. While you read the brief you might want to jot down notes on two (possibly 3- see later) separate pieces of paper.
On one piece of paper, write down the name of each witness and the important evidence the witness gives, often quite cryptically (for example, in an armed robbery case, 'ID witness at bank').
On another piece of paper, write down the dates and times when important things happened, in other words, a chronology. Quite often, the times won't add up, and from time to time, you might even find that on the Crown case, unexpectedly, there is an alibi.
The third piece of paper on which you may want to make notes is about things that need following up. For example, documents which need to be subpoenaed, witnesses who need to be interviewed, and so on.
There is a reason why this part of the paper about having a conference with the client comes after reading the brief. I firmly believe that there is no point in having a detailed conference with a client about the facts of a case, unless you are on top of the brief. I would go further. To have a conference with a client about the facts of a case, without understanding the case against your client, is positively counter-productive. At minimum, it will be a waste of your time, and a waste of his time. At worst, it may result in undermining any confidence your client has in you.
From time to time there will be clients who will insist on a conference before you have the brief, or before you have the full brief. There is nothing wrong with having a 'meet and greet' conference when you are not on top of the brief. However, do not get into details of the client's account of things in such a conference.
If possible, in a conference with a client, the following things need to be discussed, if possible in this order. First, the nature of the charge, and the essential elements of the offence(s), in a practical way, should be explained. Second, the prosecution's case against the client should be explained. Third, it should be explained to the client that what he says in conference is 'on the record', in the sense that you expect that what he tells you will be what he says in the witness box. Only then should you cautiously move on to the accused's account of what happened.
I firmly believe that wherever possible, you should have a view of the scene of the crime. I appreciate that particularly in the modern homicide case, the brief contains photographs of nearly everything. However, nothing replaces having the hands on experience of seeing how the photographs fit together, seeing in reality distances and spaces, and seeing what witnesses could really see from the positions in which they say they made observations. Surprisingly often, witnesses say they saw events, when they were in positions when they could not have seen those events. I can't remember a case when I have not learned something from a view, even if the only thing I learned was that I never wanted the jury to see what I had seen.
Most cross-examination is cross-examination about prior inconsistent statements. The greater the number of prior inconsistent statements, the greater the scope for cross-examination. Therefore, I believe wherever possible, have a committal where witnesses are required to give evidence. Remember, if you don't require a witness for cross-examination, and the witness is for various reasons unable to give evidence at trial, the witness's statement may be admissible at trial: s. 65 Evidence Act, s. 289 Criminal Procedure Act.
There seems to be a practice of allowing the prosecution to tender the statement of the witness as the witness's evidence in chief. I think this practice is unfortunate. If a witness is giving a dishonest or unreliable account of events, the mere fact of having to repeat a narrative of what happened is likely to produce inconsistencies. I don't suggest requiring police and expert witnesses to give their evidence in chief orally because that is a waste of time.
In almost every case, in my opinion it is useful to issue a subpoena to the Commissioner of Police before a trial. Again, one of the main reasons for issuing the subpoena is to create the potential for prior inconsistent statements.
There are differing views about the degree to which cross-examination should be planned. When I started working as an advocate, the preferred view was to literally and metaphorically start with a blank sheet. A line would be drawn down the middle of the page. The cross-examiner would write down the evidence in chief on the left hand side of the page, and on the right would write down questions to ask in cross-examination. Frequently the cross-examiner would seem to have very little in front of him which looked like a note or plan of cross-examination.
I have never been able to understand this approach. Usually in criminal cases, at the very least you have a statement of the witness in the witness box, and indeed all the other statements of the witnesses in the case. Most of the time (I know, not always), the witness is likely to give evidence in very similar terms to that in the statement.
There is another problem with cross-examining 'on the run', as it were. It is hard enough to take down what a witness is saying in the witness box, let alone having to formulate a cross-examination as you go.
Sometimes preparation can go too far. Sometimes you see advocates cross-examining on a witness' statement, not realising that the witness has departed from it. There is also an old and possibly apocryphal story about an advocate who used to meticulously plan his cross-examination on pieces of paper which he would pin to the bar table. He prepared hundreds of questions, and wherever possible, had a train of questions regardless of the answer given. However, when he got the answer he was not expecting for the first question, he had nothing prepared, and so he had to sit down.
I am a bit obsessive about cross-examination. However, I believe it is far better to be over-prepared for cross-examination than under-prepared. I always make a list (in very short form) of what I want to ask the witness, with page references to what the witness has said elsewhere about the topic. There is no point in having a vague idea that a witness has said something in evidence which is different to a prior statement, unless you are able to quickly take the witness to that prior inconsistent statement.
Before preparing a cross-examination, it is worthwhile thinking about and perhaps even writing down the pieces of evidence which make up the Crown case against your client. In the typical case, there will probably be only 4 or 5 of them. Thus in the typical armed robbery case, the pieces of evidence relied on might be a piece of eye-witness identification, and evidence of finding clothing similar to that used by the robber in the accused's home.
In thinking about cross-examining a witness, you should be thinking about what evidence you can get from each witness which will weaken any of the parts of the Crown case, or strengthen the defence case.
Before you decide what to ask a witness, it is necessary to decide if you want to cross-examine the witness at all. You should only cross-examine a witness who you believe will give you an answer which will either weaken the Crown case, or strengthen your case.
It is sometimes said that a cross-examiner should only ask a question if he already knows the answer the witness will give. If we all rigorously applied that rule, there would be very little cross-examination at all. It is very rare that you know with mathematical certainty how a witness in cross-examination will reply to a question. What you need to be is prepared to respond to a wrong answer. Most of the time this means you need to be ready to immediately take the witness to a prior statement which contains the answer that you want.
Later in this paper I will talk about cross-examining particular types of witnesses.
Most of the time, when you are a criminal defence advocate, you do not have the benefit of a daily transcript. I suspect that in the not too distant future, criminal lawyers of that time will scratch their heads and wonder how people in our time managed without a transcript.
If you can get your hands on a daily transcript, do so. Especially in a long trial, try to read it every night, highlighting the important evidence as you go. It doesn't take a long time to read a day's transcript, but if at the end of a long trial you have not kept up with the transcript, it is a nightmare.
If you can't get a daily transcript making good notes of the evidence in chief is essential. I don't favour writing pads for making notes in. I like a big fat spiral bound foolscap size notebook, which you are less likely to lose and you can keep as a permanent record.
As I have said, I don't like the 'blank sheet' approach to cross-examination, the 'rule a line down the page' approach. When the witness is giving evidence in chief, I try to write down as much of the witness' evidence as I can, taking up pretty much the whole width of the page. If I have time, I try to underline the critical parts of the witness's evidence. For example, in the typical armed robbery case, the part of the evidence that you want to underline is the description of the robber. If I have any more time, I try to write a one or two word prompt for a question in the margin and circle it, usually something like 'When?', 'How many?' and 'Describe?'
If you have your list of points for cross-examination beside you, if you can, cross out the areas where the witness has already given the answers you want in evidence in chief. In many cases, this may well mean that most of your prepared cross-examination can't be used. That, of course, is a good thing. If a Crown witness has already given the answers you want in evidence in chief, why would you want to go back and give the witness an opportunity to give a different answer?
At some stage in the cross-examination you should go back and check the scribbled cryptic questions on your notes of the evidence in chief and check that you have covered them. I usually tick them off as I go.
I think it is always important to have a list of exhibits on a separate piece of paper, perhaps as the last page as your exercise book, so you won't lose it. In any court case, let alone a complex trial, it is very easy to lose a stray piece of paper. On the sheet of paper, record both the exhibits and the 'MFIs' or documents marked for identification. It is extremely helpful to have an accurate list of exhibits because you can ask that a document be shown to a witness without the witness being told what the document is.
The purpose of cross-examination is to extract from a Crown witness, evidence which will weaken the Crown case, or evidence which will strengthen the defence case. I hope I am not misquoting Gleeson CJ when he memorably criticised cross-examiners who seemed to believe that they were members of the 'Junior League of Truth Seekers.' If the answer to the question you are thinking about asking will not weaken the Crown case, or strengthen the defence case, don't ask it.
If a witness who is in a position to hurt your case has not done so at the end of the evidence in chief, then the first question you have to ask is, why should I ask any questions at all?
Defence lawyers, all of us, are greedy. In our heart of hearts, we would like to be able to show that not only has the Crown not proved its case, but that the accused is positively innocent. If a witness who potentially could identify your client as being at the scene of the crime has not done so, resist the urge to ask that fatal question, ' You never saw this man at the scene of the crime'. There have been some famous instances when the witness has replied, 'Come to think of it, I think he was there.'
Can I give you this tip? If you are ever tempted to ask a question which begins, 'One thing you certainly never saw was..' , don't ask it. You would not be formulating a question that way unless you were unconsciously aware that it was risky.
These are some general thoughts about cross-examination. I acknowledge they owe something to Irving Younger's 'Ten Commandment's of Cross-Examination'. Irving Younger's 'Ten Commandments of Cross-Examination' are:
I am not going to attempt to give you the New Testament version of Irving Younger's Ten Commandments. However this would be my take on the general rules to think about when cross-examining.
I believe that the most important thing in cross-examination is preparation. As I said earlier, it is essential that you be very familiar with the prior statements of the particular witness, but also the Crown brief in its entirety, when you commence cross-examining.
You need to know the rules of evidence backwards. Especially, you need to know the rules about prior inconsistent statements and about hearsay.
Cross-examination should not be repetition of the matters in the evidence in chief. Inexperienced advocates tend to start at the first paragraph of the witness's statement and proceed from there, regardless of the content. Getting the witness to in effect repeat the evidence in chief will only give more weight to the witness's evidence. Cross-examination should be probing the weaknesses in the witness' account, not the strengths.
Good cross-examination is asking short questions in the right order. Don't begin your questions with personal observations (such as 'I well understand that you were feeling very stressed at the time....'). Don't put multiple propositions in the one question. If you do, you give your opponent the opportunity to object, or to later suggest that the witness' answer was ambiguous. If the question you are putting to a witness involves multiple propositions, split them up. Use simple, pared down, language.
If you use complicated language, you give the witness, and your opponent, the opportunity to suggest that the witness gave an answer apparently helpful to the defence because he misunderstood the question.
As a fan of trashy detective novels, I used to think that the ideal sentence in a trashy, film noir detective novel was 'I lit another cigarette'. Your ideal question in cross-examination should generally be of the same length. I guess the equivalent would be 'Was the robber smoking a cigarette?'
As a cross-examiner, you are entitled to ask question in a leading way, that is, questions which suggest the expected answer. Leading questions are disallowed in examination in chief because they suggest the answer. Don't give up that advantage easily.
When I am cross-examining, I try to think of each question as a tool designed to extract a particular piece of information, and no more. You might think of it as a locksmith using a specialised tool to open a lock.
Be very careful, especially when cross-examining police, about asking why they did or did not do something (for example, why they never gave the accused the opportunity to sign a notebook entry of a conversation). In most cases, you are better of establishing the desirability of something, the fact that it did not happen, and leaving it at that.
Very often it is possible to ask a series of questions, the answer to all of which you know is yes, culminating in critical question, the answer to which you need for your case to be yes. Get the witness used to answering 'yes' to your questions.
The manner in which you ask questions is very important. The most important thing to understand is that it is essential that the tribunal of fact (the judge, the magistrate or the jury) hears you. Unless you are Ethel Merman, you will not be heard if you ask questions at the sound level you usually use in a normal conversation. I find that if I speak in a slightly lower tone than I do conversationally my voice carries more.
When you are cross-examining, stand up straight. Avoid stooping over your papers.
There are counsel who shout at every witness. There are counsel who mumble at every witness. Attempt to fall into neither category. Too much aggression will make the tribunal of fact (particularly a jury) sympathetic with the witness. A mumbling, hesitant style will be seen as unconvincing. The happy medium is to be forthright, without being overly aggressive.
Judge Coorey used to put it this way 'You can get more flies with honey than vinegar'. I am not sure that is scientifically true, but we know what he means.
Most witnesses who you will cross-examine in your career will be attempting to tell the truth. However there will be a significant group of witnesses who you will have to cross-examine in your career who on your instructions are lying, and who appears to be clearly lying. With these witnesses, put it to them in a forthright way that they are lying.
Sometimes it is easy to miss the fact that a witness has given you exactly the answer you need because you are too busy thinking about the next question.
Make sure you have listened to the answer, because otherwise you might find you are asking questions which undermine a helpful answer you have already got.
There are witnesses who, when it is pointed out that there is an inconsistency between their current evidence and that given on an earlier occasion, will simply refuse to admit that there is an inconsistency.
There are witnesses who, when it is pointed out to them that their evidence is a practicable impossibility, will refuse to admit that they are mistaken. A good example is the witness who refuses to admit that he could not have seen what he claims to have seen from the position he says he was in.
Point out the inconsistency between the prior version and the current version. Point out the inconsistency between the witness' version and the objective evidence. However if the witness makes an absurd attempt to reconcile the difference between the current and a prior version of what happened, or if the account doesn't make sense, leave it at that. Don't give the witness the opportunity to make up an explanation for the inconsistency in, or the unlikelihood of, his evidence.
In submissions, or address, you will have plenty of chances to rave on about the absurdity of the answers of prosecution witnesses. You don't need to do it in cross-examination, and to do so exposes you to the risk that the witness might come up with an explanation.
I have suggested to you that with each witness you should have worked out in advance what are the ideal answers you want from any particular witness.
If you have got the answers you want, sit down. I think Irving Younger said 'If you have struck oil, stop drilling.' My colleague Glenn Whitehead puts it this way: 'Don't go back for your hat.'
I want to suggest to you that there are some basic skills or rules in court, and understanding of which will make you a better cross-examiner. I call these rules 'court craft'.
I think of these rules in the same way as in John Le Carre's excellent spy novels, he has the characters talk about 'tradecraft'. Tradecraft in the John Le Carre novels was a set of rules to protect spies, such as having a set of agreed signals such as a chalk mark if a spy thought he was being followed. The most rigorous of these rules were called 'Moscow rules' for a spy in the most dangerous situation.
At the risk of stretching an analogy too far, when you cross-examine a prosecution witness you are in enemy territory. Most of the time, when you are cross-examining, the witness will be hoping, if possible, to damage your case.
An important aspect of 'court craft' is ensuring that the evidence gets onto the transcript. In nearly every case it is important to make sure that a witness's answers in cross-examination are properly recorded in the transcript. Whether the case be a summary case in the Local Court, a committal, a trial, or a sentence proceeding, there is a very good chance that some other tribunal of fact or law will need to know what exactly was being said in your case.
You may think some of the things I am about to talk about are too obvious and basic to bear talking about. Can I assure that I have barely been in a joint trial where I have not seen serious transgressions of what I am going to suggest to you are the essential 'Moscow rules' of cross-examination.
You need to be constantly conscious of the fact that for the most part, proceedings are recorded on sound, not on video. If the witness does not say it, it will not appear in the transcript.
Most obviously, a nod or a shake of the head will not be recorded on the transcript. If a witness answers with a nod or a shake of the head, ask the witness to answer with a 'yes' or 'no'.
Just as importantly, avoid the 'Mm, mm' answer. Imagine a case where an important issue is whether the robber (said to be the accused) had red hair. If asked whether the robber had red hair, a witness might well answer 'um, um', meaning yes, or 'um um' meaning no. In either case the transcript will read:
Q. Did the robber have red hair?
A. Mm mm.
That answer, as recorded, will never be of any use to anyone.
By its very nature, cross-examination often involves asking questions in the negative. You need to be conscious of not allowing ambiguous answers on the transcript. For example, suppose you case is that the accused never stabbed Mr Smith. Be vigilant of avoiding producing this sort of transcript from an eyewitness:
Q. The accused never stabbed Mr Smith, did he?
A. No.
This transcript might be read as the witness either agreeing or disagreeing with the proposition. If there is any doubt, I think it is better to put a negative proposition to a witness this way.
Q. I am going to put a proposition to you and I want you to tell me if that proposition is right or wrong, do you understand that?
A. Yes
Q. The accused never stabbed Mr Smith. Am I right or wrong?
A. Wrong.
Third, a witness is asked to show how long an object is, and demonstrates by indicating with his or her hands. Unless there is an agreement placed on the record about the dimension indicated, this evidence, on a transcript, is completely meaningless.
There is a practice of going up to a witness in the witness box (with permission) to get a witness to indicate a position on a plan or photograph. I have major reservations about this practice. What tends to happen is that the advocate (examiner or cross-examiner) asks questions at a volume which is natural for someone standing next to the witness, but which is likely to be inaudible to anyone else in the court room. The witness is then invited to identify positions on a photograph or plan which the judge or jury cannot see. The jury is completely excluded from what is effectively a private conversation between counsel and the witness.
My view is, do it at a distance, so the judge and jury can see what is being identified as the position and they do not have to rely on your word for it.
This paper is about cross-examination, not how to deal with the Crown's examination in chief. However, when the Crown wants to curl up with the witness in the witness box, and you are invited to join in, my view is, don't go up. You can't make notes standing next to the witness box. More importantly, you are not getting the jury's perspective of what is happening. If the judge invites you to join the Crown in the witness box, for the most part I would simply respond 'Thank you, your Honour, I am happy to stay here.'
There are a number of small points of courtesy which you can show to the court, which will cost you little or nothing, but will win you (at least with most judges) credit. Once an object has become an exhibit, it is in the property of the court. So when you are asking a witness to mark something which is already an exhibit, seek leave of the court first. You will almost invariably get it, and the simple fact of seeking leave will win you points. All you need to say is 'With your Honour's leave', glance at the judge, ' Mr Smith are you able to mark your position on that exhibit?'
Most cross-examination when you think about it is cross-examination of witnesses based on prior inconsistent statements, usually documents. I think it is absolutely fundamental to effective cross-examination that the advocate understands how to cross-examine on documents. However there are quite a few advocates out there who appear not to understand the fundamentals of cross-examining on a prior inconsistent statement.
The first thing you need to do before cross-examining on a prior inconsistent statement is to establish an inconsistency. This may seem obvious but some lawyers do not appear to understand this point. Suppose it is helpful for the defence case that the robber had red hair (presumably because the accused does not have red hair). In a prior statement to police, the witness has described the robber as having red hair, but does not mention this in evidence in chief.
All else being equal, you are not entitled to ask the witness 'Didn't you tell the police that the robber had red hair' without any preliminaries, because at that stage, the witness has not said anything inconsistent.
Overcoming this problem could not be simpler. You just need to ask the preliminary question: 'Did the robber have red hair?' If the answer is yes, then you don't need to go to the prior statement, because you have got what you want: the witness has agreed that the robber had red hair.
If the witness does not agree that the robber had red hair, then you have established an inconsistency. You are then entitled to ask about the prior inconsistent statement: 'Didn't you tell the police that the robber had red hair?'
Caution is needed where the witness says something significant which is not included in his statement to police. Suppose, for example, that in an assault case, a witness said in evidence in chief he saw the accused kicking the victim in the head. However there is no mention of this in the witness' statement to police.
If you go straight to the fact that the witness did not mention anything about a kicking in his first statement to police, you are inviting one of two possible comebacks (these at least are the common ones I have seen, there may be others). The first is 'Well, the police never asked me if I saw any kicking'. The second is 'Well, I was so upset, and in shock, I must have forgotten about the kicking.'
There is a way of pre-empting this sort of response. It involves two of principles of cross-examination: cross-examination being asking simple questions in the right order, and 'closing the gates'.
Before you take the witness to his statement, you should ask a series of questions to close off the possible 'outs' for the witness. You will not need to ask all these questions in every case; much depends on the significance of the new assertion by the witness. You should ask these questions or something like them:
Q. When you made a statement to the police, they were very patient with you?
A. Yes.
Q. You were doing your best to tell the police the truth?
A. Yes.
Q. You were also trying to tell the police the whole truth?
A. Yes.
Q. You did your best to tell the police every important thing that you saw or heard during this incident?
A. Yes
Q. You didn't deliberately leave anything important out?
A. No.
Q. After you made your statement, the police asked you to read it through to make sure it was true and accurate?
A. Yes
Q. The police asked you to sign it as truthful and accurate?
A. Yes.
Q. You signed it as truthful and accurate?
A. Yes.
Q. Your memory of incident would have been better when you made your statement, the day after the incident, than it would be today?
A. Yes.
Q. You never said anything in your statement to police about seeing the accused kick Mr Smith, did you?
Like many of the 'templates' for cross-examination in this paper, I can't claim that I invented it. In fact, I still remember the conversation I had with my colleague Peter Pearsall in the 1980s when he told me how to do it. He and I are no doubt just links in a long chain of lawyers who have been copying each other for generations.
Where the assertion missing from the statement is part of a particular sequence of events, it is usually sufficient to take the witness to that part of his statement, and point out that the assertion (in my example, 'the accused kicked Mr Smith') is not there.
Sometimes the assertion is one which cannot be so narrowly pinned down to a particular part of the statement. For example, in a murder trial, it might be an allegation that the witness had often seen the accused assault the deceased. If the witness claims that he did tell the police about it, my approach is to put the statement in the witness' hand, and ask the witness to read the statement to himself, and to tell me when he reaches the part where he told the police that he saw the accused assault the police.
A word of caution. Don't try this unless you are absolutely sure that the allegation does not appear in the witness' statement. If the witness is able to say, 'Well, actually I did say it here in paragraph 12', to say the least you have lost ground and been made to look foolish in front of the tribunal of fact.
If the witness denies making the prior inconsistent statement, you are entitled to prove the prior inconsistent statement. The admissibility of the prior inconsistent statement is determined by s. 43(2) of the Evidence Act, which states:
(2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner:
(a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and
(b) drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence.
An assertion by the witness that he doesn't remember, when in a prior statement he clearly did remember, is still a prior inconsistent statement: Houston and Stanhope (1982) 8 A Crim R 392 at 397, Regina v Rees [2001] NSWCCA 23 at [20].
Usually, in the case of a signed statement by a witness, you can prove a prior inconsistent statement by putting the statement in the witness's hand and asking the witness to agree that the prior inconsistent statement appears in the statement.
Things are a bit more complicated if the prior inconsistent statement has not been signed by the witness, for example, a transcript of a record of interview, or a transcript of proceedings (for example, the committal). Almost invariably, the Crown will concede that you are correctly reading from the transcript. This is the way I do it:
Q. Do you remember giving this evidence at committal, your Honour, 1st April 2006 at page 44, 'The robber had red hair'?
A. No, I don't remember saying that.
Counsel: I would ask if the Crown concedes that I have correctly read from the transcript of the committal.
Crown: That is conceded.
Q. You understand that the Crown has agreed that I have correctly read from the transcript of your evidence?
A. Yes.
Q. Do you accept that was the evidence that you gave?
A. Yes. [or 'If you say so.']
Q. When you gave that evidence, were you attempting to give truthful accurate evidence?
A. Of course.
The reason I ask the Crown to concede that I have correctly read from the transcript, rather than concede that that was what the witness said, is to avoid the cheap comment 'Well, that's what it says in the transcript, but who knows what the witness actually said.'
If the Crown is not prepared to concede that you have correctly read from the transcript of the committal, you can prove this by tendering that part of the committal depositions, which are presumed to be accurate: s. 287 Criminal Procedure Act.
If the Crown is not prepared to concede that you have correctly put to a witness what is in the transcript of the witness' ERISP, you can lead that evidence from the police officer who interviewed the witness, or play the relevant part of the ERISP if necessary.
What I have said so far has mainly been general considerations which apply to every witness.
There are particular types of witnesses where there are special considerations. I want to suggest to you in this part of the paper some approaches for cross-examination. In many cases the suggestions which I will be making are simply the working out in practice of the sort of considerations which I have just been talking about.
Many cases are cases where the identification of the accused is not an issue, and the real issue is who did what to whom. The classic example would be an assault/wounding/murder case of a domestic nature.
If ever there was a case where a witness is likely to stray from his statement it is this sort of case. If it appears that the witness is going to exaggerate, encourage the witness to do so. This is the sort of case where before you take the witness to inconsistencies between the current version and the statement, you should ask questions to establish that the witness told the truth and the whole truth in the statement.
With this sort of witness, more than any other type of witness, the cross-examination should focus on the detail of what the witness claims to have seen or heard.
Be very conscious of the relative positions of the witness and the people being observed. Very often eyewitnesses will swear that they could see things which they clearly could not.
You also need to be conscious of what other witnesses who have not yet been called will say about the very same event. It may be worthwhile putting to the witness things seen by other witnesses in order to set up inconsistencies in the Crown case.
In a case where there is a sequence of events, it may be helpful to divide the action up into a number of parts so you can make sure that you cover everything.
Very often the Crown relies on the evidence of give-ups, including prison informers. A difficulty from the defence point of view is that these witnesses start out as friends or relatives of the accused. It is very important to be able to point to a reason for these witnesses to lie.
For this group of witnesses, it is very important to issue subpoenas. At the very least the witness' prison file and his Justice Health file should be subpoenaed. These very often produce gold, especially the Justice Health file, which can provide a wealth of information about the witness's psychiatric condition (if the witness has one). In the witness's prison file, frequently there is material suggesting that the witness is manipulating his status as an informer in order to better his imprisonment conditions.
You should also attempt to obtain (usually from the Crown) the remarks on sentence and the transcript of proceedings of any matters for which the witness obtained a discount for his assistance. If possible, seek any reports tendered on sentence, especially any psychological or psychiatric reports. If there has been any appeal from the sentence, make sure you have the judgment of the Court of Criminal Appeal (if there is one) or the notice of appeal.
With these documents, you should attempt to create a narrative from the witness in cross-examination, along these lines. Firstly, what happened when the accused was arrested:
Q. When you were arrested, you were very concerned that you wouldn't see your children for many years?
Q. Did the police tell you that you were facing many years gaol?
Q. Did the police tell you that they would help you if you co-operated?
Q. Did the police say they wanted to know who else was involved?
Q. Did you give them the name of the accused?
Q. Were you protecting the person who was really involved?
You almost certainly will not get a 'yes' to all of these questions, but that doesn't matter. You can move on to what happened in the witness's sentence proceedings, based on the transcript and the remarks of sentence. Depending on what happened, the cross-examination may go along these lines:
Q. You gave evidence when you were sentenced?
Q. You promised to give evidence against the accused?
Q. You also gave evidence that you understood that if you failed to give evidence in accordance with your statement, the Crown could appeal against the sentence to the Court of Criminal Appeal?
Q. And you might end up losing your discount?
Q. When the judge sentenced you, you heard him say that the but for your assistance he would have given you a sentence of 10 years?
Q. But because you were going to help the police, he gave you a discount of 50%?
Q. So that you ended up with a sentence of only 5 years with a non-parole period of 2 years?
Q. You know that if you don't stick to the script, your sentence could be doubled?
Q. That's why you are sticking to the script, isn't it?
I had better tell you that many judges don't like the 'sticking to the script' phrase. You might replace it with 'stick to your statement'.
If the witness denies knowing what was said in court, read him the relevant parts of the transcript or remarks on sentence and seek a concession from the Crown that you have accurately read from those documents.
The worst situation you can have is when a witness rolls over and becomes a Crown witness, but then rolls back and say his statement is all lies. The jury will be instantly suspicious that what the witness told the police was the truth. I think the best approach is to attack the witness as if he was still on the Crown side. If any of you have tips about dealing with this sort of witness, I would be interested in hearing them.
My view is that generally if there is no dispute about the fact that the crime was committed, and the only real issue is the identity of the offenders, it is counter-productive to spend much, if any, time about what happened during the commission of the offence. Detailed cross-examination about the commission of the offence, unless it is directly relevant to the issue of identification, will lead the jury to conclude that the accused does not really know what his defence is.
In my view in a case where the only real issue is identification, cross-examination should be limited to areas, which might cast doubt upon the accuracy of the witness' identification of your client. Examples might include discrepancies between the witness' description of other offenders (not in a joint trial!) or the weapons used in the commission of the offence.
The first part is the cross-examination about the circumstances of the initial observation. It corresponds with the sort of matters referred to in Domican (1992) 173 CLR 555. The sort of matters, that you might want to ask about (say in an armed robbery case) are:
Q. You had never seen the robber before?
Q. You only saw him for a limited amount of time?
Q. You were very scared at the time?
Q. You had to look at not just this robber but the other robbers as well?
Q. You were also concentrating on the gun that one of them was holding?
The second part is the initial description given by the witness to the police. At this stage (unless the description of the robber uncannily matches that of your client) you are trying to emphasise that this first description was likely to be more accurate than the later identification. The first description is extremely important because usually it is given before the witness is shown photographs of the defendant. Again, this is a classic example of the importance of closing the gates before you get to the crucial questions. The sort of questions you might want to ask are:
Q. When you went to the police statement to make your first statement, the police were very patient with you?
Q. You were doing the best you could to tell the police everything that you remembered to help them catch the robber?
Q. In particular, you gave the police the best, most complete description of the robber that you could?
Q. This was your description 'about 5' 6', medium build, dark shoulder length hair, olive skin, wearing white runners, blue jeans, a grey jacket, sunglasses and a beanie'
Q. That was the best, the most complete, description that you could give?
Q. You never said anything about the robber having a beard, did you?
The one type of answer you should be trying to defuse in advance is 'Well the police never asked me if he had a beard', in a case (for example) where your client has a beard in the arrest photo but there is no mention of a beard in the initial description. If you have already established that the witness was trying to give the best, most complete description that he could, you have an immediate comeback:
Q. Didn't you tell us five minutes ago that you gave the best complete description to police that you could?
Q. You never said anything about the robber having a beard did you?
The third part is the identification process. There are a number of different approaches, which can be taken, not all of which will be appropriate to the particular case.
In preparing for cross-examination in an identification case it is important to try to get access to documents about the act of identification. At least, make sure that you have access to the words of identification used, which should be recorded in the official police notebook of the police officer who takes the identification statement. In many cases, the act of identification is now video taped. It is always worthwhile to try to get access to the identification video, because frequently it shows hesitancy in identification that does not come up in the witness’ statement.
One approach to cross-examination is, the issue of what the witness’s expectation was when he went to the identification process:
Q. When you went to the police station, you understood that a photo of the man the police suspected would be among the photos that you were shown?
Q. You understood that your role was to select the photograph that looked most like the robber?
You will be surprised at the number of times you will get a positive response to these questions, which is indicative of some of the problems of identification evidence.
The next strand that can be taken is how the photo of the accused was selected. You need to go back to the original description of the robber, and compare it with the photo of the accused, which the witness selected. There is always some artificiality about this, in that often the way we recognise faces cannot be easily described in words. You might ask:
Q. This was your original description of the robber, ‘about 5’ 6”, medium build, 25- 30 years old, dark shoulder length hair, olive skin, wearing white runners, blue jeans, a grey jacket, sunglasses and a beanie’?
Q. You told us that when you spoke to police that was the most complete description you could give?
Q. Which of those features enabled you to say, that photo is the photo of the robber?
Another strand on this topic is to attempt to show that the photo spread was unfair. You are trying to show that from the point of view of the identifying witness, many of the photos in the photo spread were automatically disqualified. You might ask:
Q. Do you agree that the people in photos 1, 2 and 3 appear to be younger much younger than 25-30 years old?
Q. So from your description of the robber, you were able to immediately disqualify photos 1,2 and 3 as being the robber?
Q. Do you agree that the people in photos 4, 5 and 7 have quite thin builds?
Q. So you were able to disqualify the people in those photographs immediately
Q. Do you agree that the people in photos 8, 9 and 10 appear to have fair complexions?
Q. So you were able to disqualify the people in those photographs immediately?
Q. So the only photo which you could not immediately disqualify was photo number 6?
Finally, if there are any differences between the initial description and the photo of the accused selected, the witness should be asked about those differences.
The fourth part of the cross-examination is to attempt to sum up any favourable answers you have already received and attempt to extract a concession that the witness could be mistaken. Try to make it seem to the witness that unless he agrees with you he is being unreasonable. You could ask something like this:
Q. You have told us that you only saw the robbers for a few minutes?
Q. You have told us that that during the robbery you were very scared?
Q. You have told us that you had never seen the robber before?
Q. You were not shown the photofiles until a month after the robbery?
Q. Is it possible that you are mistaken?
If the witness won’t concede the possibility, I think the best tack is not to argue with them, but to try to make the witness seem unreasonable. For example:
Q. You could not be mistaken?
Q. You could not make a mistake in identification?
Q. In identifying people, you are infallible?
The other side of the coin is cross-examining the police officer who conducted the identification process
It is very important to get access to the exact words used by the civilian identification witness when the photo of your client was selected. If at all possible, try to get a look at the police notebook where the words should be recorded, or the video of the identification process.
You can also get from the police witness support for the idea of a ‘fair spread’. You could ask questions like these:
Q. You know, as an experienced police officer, that when you show a witness a photo of a suspect, it would not be fair to show the witness a single photo?
Q. Instead you include the photo in a group of other photos?
Q. You do that to reduce the chance of mistaken identification?
Q. And to be fair to the accused?
Q. Similarly, when you put together a group of photos to show an identifying witness, you try to get a fair spread of photos?
Q. That is, a group of photos where the appearance of the other people in the photos roughly matches that of the accused?
Q. It wouldn’t be fair to have a selection of photos where the suspect sticks out like a sore thumb?
Q. It wouldn’t be fair to have a selection of photos where every photo was disqualified in terms of the witness’s description except for that of the accused?
There is probably the most scope for preparation in cross-examining police witness because for the most part you can be confident that their evidence will be in identical terms to their statements.
Where a police officer’s evidence is in contention, it is important to subpoena the police officer’s notebook. Normally the first place a police officer will record anywhere what he has seen and heard. Look out for differences between the officer’s notebook entries and the officer’s statement.
If you are going to ask a police officer any questions about your client’s good character (always a risky business), make sure you run the questions you are planning on asking past the officer before you ask them in front of the jury. If the officer is not prepared to give you unequivocal answers about the accused’s character you are better off letting it go. You should also ask the prosecutor if there is any material which the prosecution would lead if good character is raised.
Police officers normally know pretty well what is in their statements. Where they get in trouble tends to be things which are not in their statements.
There are some differences between different classes of police officers. Crime scene unit officers (who used to be known as physical evidence officers) almost always seem to me to be keen to give very honest evidence. Crime scene officers normally make and keep comprehensive notes of their examination of the crime scene. These are usually worth looking at.
At the outset it is important to recognise that there are some limitations to cross-examining expert witnesses. There are some areas you are never going to be able to get helpful answers from an expert. For example, although I have seen good cross-examination about how long a fingerprint could have been at a particular location, I have never seen good cross-examination intended to suggest that two fingerprints asserted to be identical, are not in fact identical.
Preparation is very important in a case where there are expert witnesses. You are never going to learn as much about an expert’s field of expertise as the expert you are preparing to cross-examine. However, in my experience the areas you end up cross-examining on usually end up being quite narrow areas, and it is possible to end up knowing a lot about a narrow area. At least you can give the impression of knowing as much about the area as the expert. In particular, make sure you understand the meanings of any technical terms that are likely to come up. Also make sure that you can pronounce any terms that you are likely to use in cross-examination (such as petechial haemorrhages).
It is helpful to build up a little library of books covering areas which often come up in cross-examination. A useful start is the book by Vernon Plueckhahn and Stephen Cordner, Ethics, Legal Medicine and Forensic Pathology.
In a case where there is contentious expert evidence, it is always helpful to retain an independent expert. Even if you don’t intend calling the expert, having a report from your own expert can be invaluable in suggesting lines of cross-examination.
Where possible, subpoena the expert’s working notes. This is particularly important with DNA experts and treating doctors.
Wherever possible, have a conference with the Crown’s experts. Experts usually pride themselves on being impartial. I have rarely had a Crown expert witness refuse to have a conference with me. You should usually take advantage of this, unless the witness’s evidence is not contentious, or you are planning to call the expert a liar or incompetent.
In Makita v Sprowles (2001) 52 NSWLR 705 at Para [85] Heydon JA (as he then was said):
85 In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R (1999) 197 CLR 414, on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise” (at [41]).
To summarise, before an expert opinion is admissible, the party seeking to tender the evidence must establish that:
These are the areas that you should consider attacking when cross-examining a witness. Only cross-examine on the areas where you think there may be a weakness. Cross-examination of an expert should never be a repetition of the evidence in chief, which simply reinforces the effect of the expert’s evidence in chief and gives the expert an opportunity to better explain his opinion.
Generally you will be cross-examining experts from a recognised field of specialized knowledge, although that in not always the case, as in the case of ‘facial mapping’ and ‘body mapping’: see Regina v Tang [2007] NSWCCA 167.
Often cross-examination about an expert’s qualifications is completely counter-productive. However, you need to be conscious of the issue of whether the expert is giving evidence outside his area of expertise, because some experts (especially doctors) seem to think they are qualified to express an opinion on anything.
Frequently, a fertile field of cross-examination is the material made available to the expert at the time he formed his opinion. If that material was less extensive than the material available at trial, you may be able to suggest that the expert did not have all the material available to reach an expert opinion. This is particularly useful when cross-examining psychiatrists.
Don’t let an expert get away with simply proffering an opinion without showing how he got there. Ensure that the expert’s process of reasoning is exposed.
Frequently, what you are seeking in the cross-examination of an expert is the concession that another explanation is a possibility. For that witness, the concession that there is another possible explanation is your $64,000 question. Honest experts like to think of themselves as scientists and are often open to the suggestion that another explanation, although improbable, is possible. Even if you know what the answer is going to be, leave the $64,000 question until last. If you get the answer you want, sit down. And don’t go back for your hat.
John Stratton SC
Deputy Senior Public Defender
1 August 2007
15 Nov 2024