The subsidiary rules of cross examination
The following is a copy of Prem's rules of cross examination which focus on the subsidiary rules, which I reproduced here for convenience. I have also provided links where possible to the original source of the rules, but copyright in the text obviously remains with Prem.
Prem's the Rules of Cross-Examination.
"The subject of cross-examination is one of very great importance in the conduct of law cases because it deals with the separation of truth from falsehood and enables the Court to be seized of all the circumstances of the case bearing upon the issue. It brings out bias, detects falsehood and shows the moral and mental condition of the witnesses. It corroborates your client's version of the issue or weakens your adversary's case. It has been said, that to a great extent, cross-examination is intuitive like music and painting, and whilst the amateur beginning his music or painting may not be very successful, yet he can achieve perfection by training, practice and experience. There can be no hard and fast rules for the cross-examination of witnesses. Different kinds of witnesses require different treatment. A few types of witnesses. have been dealt with separately in the following pages. Cross-examination is a mental duel between the counsel and the witness and therefore a counsel has to adopt a number of tactics to elicit truth from the witness.
Besides these there are some subsidiary rules which will also help the counsel in the difficult task of cross-examination.
Rule 1. Never commence cross-examination of a witness without the best preparation and without acquainting yourself with all the necessary details concerning the witness and the point on which he would be called upon to depose. See separate chapter on "Preparation of Cross-examination.4.09 MB"
Rule 2. Always attack the witness whom you are cross-examining in the weakest point at the opening, unless it is some complicated matter involving long accounts or something of that kind." 11 Cr. L. J. p. 82 Also known as “Always attack him where he is least prepared” See separate chapter "How and where to begin cross-examination."1.44 MB
Rule 3. Do not begin with your bad witnesses. Begin with your best.
Rule 4. Do not cross-examine a witness merely as to character severely. Never attack a person's character unless you have a record of it.
Rule 5. Do not make too much of immaterial discrepancies. The cross-examination for immaterial discrepancy in conversation is generally useless.
Rule 6. Do not examine a witness in a language which is much above the level of the witness. A counsel should always keep to the level of his witness. 11 Cr. L. J. 84. See separate chapter "Avoid Legal and Technical Expressions."1.89 MB
Rule 7. When the offence is only technical, do not cross-examine much. Want of cross-examination may be made up by argument."
(i) In a breach of promise case the defendant, Scarlett's client, had alleged to have been cajoled into an engagement by the plaintiff's mother. She was a witness on behalf of her daughter, and completely baffled Scarlett, who cross-examined her. But in his argument he exhibited his tact by this happy stroke of advocacy.
"You saw, gentlemen of the Jury, that I was but a child in her hands. What must my client have been?'
Rule 8. Try to reduce the gravity of the offence, when it is proved to the hilt. It is not always given to counsel to obtain absolute success. The offence charged against the accused may be a grave one and it may be fully and fairly proved. In such cases it would often be better for counsel to content himself with trying to reduce the gravity of the offence in cross-examination.
The prisoner was indicted for the murder of his wife, and the principal evidence-if not the only evidence against him -of wilful murder was the deposition of the dying woman. Without this there would be no conviction for the capital crime: with it no defence.
The statements in the deposition were closely compared and contrasted, where it was found that in many not immaterial particulars they contradicted one another; so the deceased wife gave some evidence in the prisoner's favour which no re-examination could affect.The deposition stated that the woman was "in bed had been to sleep, and was a little the worse for drink; that her husband came and threatened to throw her out of the window, that he took a knife from a drawer, and said he would kill her. He then struck at her; she stooped, and afterwards found she was wounded. He said 'You have only a few hours to live and that he sent for a doctor and a policeman and gave himself up."
The woman's physical and mental condition were not such as enabled her to make a clear or connected statement.It might have been hers, but if every word was not entirely hers, it was not her statement at all. There were pauses between the words as she spoke and some of them on being examined were by no means proved to be the actual words uttered; only words to that effect. Some seemed to have a double meaning and, to equalize that surplus of meaning, some had no meaning at all. So that taken altogether, this document was not in a fit condition to be relied upon, and was therefore rejected-cross-examined out of Court.
But there was still the prisoner's "confession" to be relied upon.This was said to the policeman who apprehended him, or rather to whom he gave himself up.
The following is a portion of the cross-examination of the policeman:
Q: "Did he say he was sorry?"
A: "He did, Sir."
Q: "What did you say to him?"
In the circumstances this was a proper question; in others it might have been most dangerous. But the policeman was known to have been friendly with the prisoner; and besides his cross-examination was upon the depositions.
A: "I said to him, 'What, killed her, Jim?'
"Aye', he answered, 'it is too true.' "It required little skirmishing after this. ' Killing is not always murder."
The prisoner was proved to be a man of humane disposition, respectable and industrious; and the doctor's evidence was to the effect that it might even have been done unintentionally. A verdict of manslaughter was returned. See Harris, pp. 19-22.
Rule 9. lf the witness is enthusiastic or exaggerating, allow him to exaggerate the matter until the exaggeration becomes apparently absurd. See separate chapter “Do not lead your witness to an absurdity.789.79 KB
Rule 10. Do not cross-examine a moderate witness severely.
An action was brought against a lessee for non-repair, and the witnesses for the plaintiff had proved a tolerably fair case, had shown a want of wind-tightness and water-tightness, with other aggravated evils, sufficient to raise the expectations of any young counsel who could restrain his powers of cross-examination. In this case witnesses were called for the defence, and if a few immaterial questions had been asked in cross-examination, no harm would have been done to the plaintiff's case. There would have been a conflict of testimony, and the Jury would have given damages somewhere between the lowest estimate of the defendant and the highest claim of the plaintiff. Instead of that, the enterprising counsel for the plaintiff proceeded to cross-examine in the following manner - the witness for defendant had said that the house was in a fair state of tenantable repair. This was the cross-examination.
Q. "It was in a splendid condition, wasn't it?"
(Imagine such a question after the moderate statement of the witness. And imagine, if you can, that it is cross-examination).
A. "I did not say it was in a splendid condition. I said it was in tenantable repair."
Q. "Then what has been said by the witnesses for the plaintiff is pure imagination?"
(This looked something like plunging into metaphysics; at all events, it opened up a wide field of inquiry in some direction or another).
A. "I don't know about pure imagination. I know it is a got up job." (Laughter).
Here, you observe, the witness, like a skilful arguer (and far too good for his opponent), limited his answer by appropriate terms. The Jury gave only the trifling damages which were admitted by the defendant himself. Harris' Hints on Advocacy, p. 319.
Rule 11. Do not press an unwilling or reluctant witness too much.
It is a danger not to be lightly regarded, that of persisting in pressing a question upon a reluctant witness:
"When you find a witness unwilling to give the evidence you see, and you have drawn him as near to the point as there is any hope of his being drawn or driven, it is always dangerous; to attempt to urge him further. If you have nearly got an affirmative. and you press him over much, you may irritate him into giving you a direct negative.
Harris Hints on Advocacy, XIV Ed. 1911, p. 48.