Cross Examination of a Witness

Firm 18B Class of 2017 KSL

INTRODUCTION

Cross-examination is a term often used by individuals with some form of legal training, especially in the setting of a court, tribunal or other quasi-judicial entity complying with certain rules of evidence in the adjudication of a case.

Cross examination may be defined as putting forth questions to a witness brought by the adverse party.

The questions are designed;

1)      To elicit information favourable to the party on whose behalf it is conducted and to cast doubt on the accuracy of evidence given against that party.

2)      To discredit, or to cast doubt upon the credibility of the witness.[1]

It is generally understood to be either a right or procedure to be followed during a trial process by the adverse party in proceedings, so as to elicit certain probative evidence from witnesses giving sworn testimony.[2]

The term has however been exhaustively defined as the examination of a witness upon a trial or hearing, or upon taking a deposition, by the party opposed to the one who produced him, upon his evidence, given in-chief, to test its truth, to further develop it, or for other purposes.[3]

Cross-examination thus, is the second step, so-to-speak, in the extraction of information from persons giving sworn evidence in any given proceedings.

OBJECTIVES OF CROSS EXAMINATION:

The course of a cross examination may vary from proposition to proposition and answer to answer.[4] There may be changes in response, attitude and co-operation by the witness. An advocate must be alert to these changes. The key is to listen to the answer. The two main objectives of cross examination are:

1)      To elicit favorable evidence for your case

In cross-examination the cross-examiner will always seek to elicit evidence which supports his version of the facts in issue. The cross examiner will not use questions to attack, pillage and plunder the witness, but rather to obtain favourable information, such as admissions or facts from the witness. In most instances, the favourable evidence that will accrue from adverse witnesses will come in small increments.

The principle rule of cross-examination was laid down in the case of R v Treacy[5] that a person solely accused cannot be cross-examined by the prosecution in such a way as to reveal that he made a confession which has been ruled inadmissible. If an accused elects to testify he will be open to cross-examination not only by the prosecution but also by the co-accused.[6]

2)      To damage a witness’ credibility

Section 163 of the Evidence Act Cap 80 states that the credibility of a witness maybe impeached by evidence of persons who testify that from their knowledge of the witness, they believe him to be unworthy of credit or lack of credibility. Such a person or witness who says that one is not credibile will not give reasons upon his examination-in-chief but may be asked his reasons in cross examination. This occurs when you attempt to discredit the believability of a witness’ factual testimony by showing that it does not match with common sense and with what others say. Sometimes you can discredit the adverse party’s witness by something in addition to or other than cross-examination, for example where you use another witness to prove the target witness’ bad reputation for not telling the truth.[7]

CONSTITUTIONAL AND STATUTORY BASIS OF CROSS EXAMINATION

·         The Constitution of Kenya, 2010

Article 50(2)(j) provides that one of the rights of an accused person is to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence. This right bears heavily on cross-examination in that, access to, and examination of prosecutorial evidence will give the accused person or their counsel an idea of the nature of the testimony to be adduced by prosecutorial witness and thus prepare in advance questions to put to such witnesses on cross-examination.

Further, Article 50(2) (k) provides that an accused person may adduce and challenge evidence. Cross-examination is ordinarily used as a tool by the adverse party, in this case the accused person, to challenge the accuracy of a given witness’ sworn evidence. It may also serve a secondary purpose where a cross-examination is successful such as to discredit evidence given in-chief and thus elicit facts favourable to the cross-examining party.

·         Statutory basis

The express and in some instances, implied reference to cross-examination and the rules governing the conduct of the same is apparent in various statutes. Some of these pieces of legislation are intended to govern varying proceedings in different courts while others are generalized to the extent that certain references to cross-examination traverses both civil and criminal proceedings.

One such statute is the Evidence Act, Chapter 80 of the Laws of Kenya,

·         The Evidence Act

It provides for the rules of admission into evidence of relevant and probative evidence and equally for the disqualification of irrelevant and/or prejudicial information.

Cross-examination plays a pivotal role, both for the court and the adverse party, in the filtering of such evidence to determine not only its admissibility but also in establishing whether or not the standards required for a determination in a civil case have been met, or a conviction or acquittal in criminal proceedings has been achieved.

Section 146(1) of the Evidence Act provides for the order and direction of examination in the following terms;

‘Witnesses shall first be examined-in-chief, then, if the adverse party so desires, cross-examined, then, if the party calling them so desires, re-examined.’

An examination of the provisions of the Evidence Act on cross-examination reveal certain parameters and restrictions applicable in the conduct of cross-examination;

i)                    The scope of cross-examination is ideally unlimited. The adverse party conducting the cross-examination is therefore at liberty to determine which questions to put to a particular witness regardless of whether or not they have a bearing to the issues brought out in the examination-in-chief of the particular witness.

Section 146(2) of the Act provides that the examination-in-chief and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief.

ii)                   Leading questions may be put to a witness during cross-examination. This is stipulated under section 151 of the Evidence Act.

What is a leading question? The Act provides a definitive answer to this particular question under section 149 as follows;

‘Any question suggesting the answer which the person putting it wishes or expects to receive, or suggesting a disputed fact as to which the witness is to testify, is a leading question.’

Ideally, it would be anticipated that the nature of the question put to a witness on cross-examination would elicit a response that is either, ‘yes’ or ‘no’.

iii)                Cross-examination may be used as an avenue to challenge a witness’ evidence if the oral testimony varies or is inconsistent in some material regard with a written statement previously made by such a witness. Section 153 of the Evidence Act deals with this particular issue.

The scenario depicted above would ordinarily arise in criminal proceedings where a witness for the prosecution will probably have made a written statement filed with police, as standard procedure, to assist with both the investigation and prosecution of the substance of the charge.

iv)                An accused person called as a witness for the defence may be cross-examined on any matter notwithstanding that the testimony given may incriminate the said accused for the offence charged.

Section 156 of the Evidence Act speaks to this particular issue.

Other than the Evidence Act other statutes make reference to cross-examination as a process and some as a right, either in civil or criminal proceedings, and they include:

·         The Criminal Procedure Code, Chapter 75 of the Laws of Kenya (CPC)

Under section 150 of the CPC, the court trying the fact, is at liberty or has the discretion to call any party not already called as a witness for the purpose of examining them on the facts of the case. It may also recall persons who have already been called as witnesses, and the prosecution, as well as, the defence, are entitled to cross-examine any such witnesses.

The right to cross-examine is also apparent under section 208(2) of the CPC which provides that;

‘The accused person or his advocate may put questions to each witness produced against him.’

In criminal proceedings, the court will at the close of the case for the prosecution determine whether or not the accused person has a case to answer.

This procedure is set out in the CPC and in particular at section 211, where in the conduct of the defence, the accused person will have the option to give sworn or unsworn evidence but may only be cross-examined on the sworn evidence.

Section 211 of the CPC provides as follows;

The court shall again explain the substance of the charge to the accused, and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination.

Section 302 also states that a witness called for the prosecution shall be subject to cross examination by the accused person or his advocate, and to re-examination by the advocate for the prosecution.

·         The Civil Procedure Rules, 2010

Like the name suggests, this is delegated rather than primary legislation formulated by the Rules Committee established under section 81 of the Civil Procedure Act, Cap 21, with the authority of Parliament.

Order 18 (deals with hearing and examination of witnesses) Rule 3 provides that;

‘The evidence of the witnesses in attendance shall be taken orally in open court in the presence of and under the personal direction and superintendence of the judge.’  

This indicates that the testimony of a witness in civil proceedings shall be given orally; this applies when the witness is giving evidence in-chief as well as in cross-examination and re-examination.

Order 19 (Affidavits) Rule 2 the Civil Procedure Rules states a person may be called to be cross examined on his documentary evidence that he has produced in court.

·         The Fair Administrative Action Act, 2015

In judicial review proceedings, the common law of England has, through precedent, established that the would-be applicant in such proceedings is entitled not only to the right and opportunity to be heard but also to the right to cross-examine any witness in the administrative action preceding an application for prerogative orders.

This right has been recently codified in the Fair Administrative Action Act, 2015 under section 4(3)(f) in the following terms;

‘Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the person affected by the decision;  notice of the right to cross-examine.’

CROSS EXAMINATION-GUIDELINES

The starting point is always whether or not an advocate shall cross examine the witness. This is to say that the advocate should weigh the potential benefits and the potential detriment.[8]Therefore it’s always proper to consider whether as an advocate should actually ask any questions.

These are some of the guidelines that should be used in the conduct of cross-examination;

1.      Preparation

A well prepared advocate should be able to lead a witness so as to get a “yes” or “no” answer.   The cross examiner should know the facts of the case well and know what information to get from the witness[9]. Cross examination should not be used as a forum to fish for new facts. Ask a question which you already know the answer.  Preparation helps an advocate decide whether to go ahead and cross examine or not.

2.      Control.

The best way to control the witness’ answers is to ask simple and clear questions.  This prevents the witness from providing harmful testimony. Where a witness answers a question other than that which you have asked, ask it again. To control the witness, avoid questions that ask “how” or “why” or that require the witness to explain. Never allow a witness to explain anything on cross-examination[10].

Open-ended questions should never be asked; this allows the judge to follow your cross examination. Important questions should be asked at the beginning and end of the cross examination. People, including judges remember what they hear first and last.

3.      Have a plan

Planning helps an advocate identify facts that cross examination will establish. Treat the witness fairly so as to gain concessions from the witness including that they may have been mistaken in their testimony on examination-in-chief[11]. Point out areas that are of advantage in impeachment and find other evidence to support that.

4.      Learn the intricacies of impeachment.

An impeachment that is done successfully taints a witness’ testimony. An advocate should know the rules and techniques for impeachment as its improper use would be detrimental to an advocate’s professional standing. An advocate should also be aware that a witness’ credibility can be attacked by other means other than impeachment. This can be achieved by knowing the facts well and noting for loopholes.

5.      Keep it simple

Questions should be kept short and in plain language. The goal is to obtain one fact with each question[12].  This makes cross examination easier and prevents objections from adversary and enables the judge to follow easily.

6.      Have a goal

Always remember the purpose of cross examination which is to build your case or defense. The goal is therefore attained through highlighting mistakes in the witness’ testimony, attacking credibility of witness, show bias on part of the witness and pointing out errors in testimonies. The cross examination should be brief so as to score points to be used in your closing argument. Strong points will be lost in lengthy cross examinations.

Listen to the answers[13]. The answers may contain favourable testimony that is sought in the cross examination. When this happens you have accomplished your goals and you should consider ending your cross examination.

TECHNIQUES IN CROSS EXAMINATION.

Technique is defined as a formula or the systematic procedure to accomplish a task[14]. It is important to highlight that for one to conduct an effective cross examination, one has to always have the objectives in mind. This will guide one in choosing the best formula to use in different cases.

As previously highlighted, leading questions provided under section 149 as read with section 151 of the Evidence Act, Cap 80, may be employed as the primary basis for conducting a cross-examination. Such questions are ideal and suited for the purpose, as the answers anticipated will be short and concise, which will also aid in conserving precious judicial time.

Some of the techniques include:

·         Upon completion of the examination in chief, one should determine if there is a need to cross examine. One should consider whether any aspect of evidence given by the witness needs clarification, amplification or if it needs to be undermined. It is important to avoid conducting unnecessary cross examination. One must aim to have a specific purpose to every question[15].

·         Be courteous. It is also well known that cross-examination is most effective when done in a friendly yet subtly and firm manner, without unnecessarily vexing or badgering a witness.[16] Advocates are required to be courteous to witnesses. One should not interrupt the witness even if they are being evasive. One can easily lose the sympathy of the court hence detrimental to your case. 

·         Ask one-fact leading question. This is to say that only one new fact or point should be introduced per question. The cross-examination should be set up on in a way that builds on the theory that one is developing. This enables one to easily guide the evidence and it also brings in the aspect of controlling the witness.

·         One should use short and precise questions. This allows specific and short answers that clearly bring out the case theory. It helps to mentally break down what the cross examiner is after and only permits answers that the examiner intends.

·         Do not ask a question to which you do not know the answer. This is because a cross examiner is telling the client’s story hence he should keep it under the purview of what he knows. One ought to know the answer to a question because the examiner will derive it from the witness statements or the examination-in-chief.

·         Never ask ‘why’. This prompts an explanation from the witness which is dangerous. This is because it is an open-ended question and it destroys an explanation from the cross examiner in the closing statement.

·         Put your case. The failure to dispute portions of testimony that conflicts with that of your client could result in the rejection of your client’s version on that point and the adoption of the version of the witness you omitted to challenge[17].

·         When you get what you want, STOP! If the answer fits, STOP! One may ask the last damaging question that ruins their case. Therefore, one needs to be aware of every salient parts of the adverse party’s evidence which will have to be challenged so that the cross examiner will be able to put the client’s version to the witnesses as they give evidence.  

·         The cross-examiner should keep a ‘poker’ face. If the evidence given by the witness is potentially damaging to your case, then one is required to show no outward signs that the answer was detrimental. This also applies to a situation where the advocate’s witness is being cross examined, the advocate is not supposed to make facial expressions and body language, for example, wincing and vigorously shaking your head, that could discredit your witness. Remember the judge is watching the advocate’s demeanour.

·         Cross-examination should be chronologically developed. It will assist the trier of fact in understanding where you intend on going in your cross-examination.

·         Organization is extremely helpful. In Mazur v. Moody[18] Chief Justice McEachern reminded counsel of the need for some order to attend the presentation of the case.

CONCLUSION

Cross examination is a very important aspect of establishing the truth in the adversarial system of justice therefore its indispensable in both criminal and civil as well judicial review proceeding.  Cross examination is both an art and a science[19] which must therefore be perfected so as to obtain the desired results in the proceedings. It is therefore imperative for advocates to master the art for able representation of their clients. Here is the caveat; one does not learn to be good at cross-examination by reading papers.  The successful artist learns by doing it, or watching others do it well; by reading trial and deposition transcripts or, better yet, by conducting the examination personally. The trial lawyer must learn to get the “feel” of a good cross-examination; to develop a personal cadence and style.  The trial lawyer must learn as well to adapt to particular witnesses and different cases; but he or she learns by doing.

BIBLIOGRAPHY

· AM.J. TRIAL Advocacy .245 (1994).2770001VERSACOMP.

· Babitsky, Steven &Mangraviti, James J., Jr., How to Excel During CrossExamination: Techniques for Experts That Work (1997).

· Brodsky, Stanley L., Coping With Cross-Examination and Other Pathways to Effective Testimony (1st Ed. 2004).

· Devaney, S. (2007). The Loneliness of the Expert Witness. Medical Law Review, 15, 116-125

· Finn, S. E. and Tonsagec, M. E. (1996). Therapeutic assessment: Using psychological testing to help clients change. Manuscript in preparation

· Haydock, Roger &Sonsteng, John, Examining Witnesses: Direct, Cross, and Expert Examinations (1994). 

· Iain Morley QC, The Devil’s Advocate A spry polemic on how to be seriously good in Court (3rd Edition, Sweet & Maxwell, 2015).

· Keith Evans Advocacy in Court: A Beginners Guide (Edition 2, 1995)

· Kestler, Jeffrey L., Questioning Techniques and Tactics (2nd Ed 1992).

· Mauet, Thomas A., Trial Techniques (6th Ed. 2002).

· Mazur v. Moody (1987), 14 B.C.L.R. (2d) 240 at 241

· Michael Hyam Advocacy Skills (Edition 4, Oxford University Press, 1999)

· Robin Palmer, David McQuiod-Mason, Basic Trial Advocacy Skills, (Butterworths 2000).

· Steven Lubet Modern Trial Advocacy: Analysis and Practice LexisNexis / National Institute for Trial Advocacy; Fourth edition (December 28, 2009) 

· Wellman, Francis L., The Art of Cross Examination (4th Ed. 1997). 

[1] Oxford dictionary of law 5th edition 

[2] Section 145(2), Evidence Act, Cap. 80. 

[3] Henry Campbell Black M.A, Black’s Law Dictionary, 4th Ed Revised, 450. 

[4] Edward E. Rundell & Sam N. Poole, Jr., Cross-Examination of Plaintiff’s Expert: The Art of War, 48 La. B.J. 104, 107 (August 2000). 

[5] R v Treacy (1944) 30 CrAppR 93 at 96. 

[6] See the case of R v Hilton (1972) 1QB 421 

[7]www.google.com: cross examination of witnesses during trial 

[8] Walter R. Lancaster, The Art Of Expert Cross-Examination, LITIGATION, Fall 1997, at46 

[9] Gregory A. Hearing and Brian C. Ussery, guidelines to an effective cross examination: the science behind the art. (2004) 

[10] Wellman, Francis L., The Art of Cross Examination (4th Ed. 1997). 

[11] www.mynation.net 

[12] 59 Am. Jur. Trials 1 (Persuasive Cross Examination)(2004) 

[13] Wellman, Francis L., The Art of Cross Examination (4th Ed. 1997). 

[14] <ahref="http://thelawdictionary.org/technique/"title="TECHNIQUE">TECHNIQUE</a> 

[15] Pg 140, Keith Evans Advocacy in Court: A Beginners Guide (Edition 2, 1995) 

[16] Muthomi Thiankolu, Lesson 7-The Course of Evidence and the Examination of Witnesses, 52. 

[17] Par 7.6.2, Robin Palmer, David McQuiod-Mason, Basic Trial Advocacy Skills, (Butterworths 2000). 

[18] Mazur v. Moody[18] (1987), 14 B.C.L.R. (2d) 240 at 241, 

[19] Pozner and Dodd, CROSS-EXAMINATION: SCIENCE AND TECHNIQUES Chapter 12 (2nd Edition).