Prem's subsidiary rules of cross examination 12-24
Rule 12. Do not fish out unnecessary information in cross-examination. Never ask for mere information from a witness under cross-examination, because, if you do, you are sure to get it to your cost. 11 Cr. L. J. p. 82.
A man who cross-examines well upon that which he knows, or has reason to believe he knows, or that he thinks exist, and who cross-examines well upon that point, is doing his whole duty to his client and to his solicitor, but the man who ventures into an unknown field, the man who goes without a lantern to his path will find that the first head that runs up against the tree is the head of the cross-examining counsel. That is so by the reason of the circumstances. I do not care who the witness is. Take the farmer from the plough, take the mechanic from the shop, and put him into the box and ask him to tell a story-these people, generally speaking, although they look simple, and they are simple in their ideas, and they are limited, perhaps in their knowledge of many things-these people in nine cases out of ten, make the very best witnesses. Why?
Because they are generally familiar with all the ins and outs of the subject matter, because they know the ways of living, the methods of life, the peculiarities of that kind of life, and they know what is likely to have occurred under a set of given circumstances, they are more familiar than the counsel.
Rule 13. Never begin to cross-examine a witness without purpose. Never put a question in cross-examination without being able to give a reason for it. See Harris' p. 58.
The most difficult thing to learn in conducting the case is "What ought not to be done." Harris' Hints on Advocacy.
Rule 14. No question should be asked without an object.
The witness should not be interrogated aimlessly, and it is far better to ask too few than too many questions. The mistake is often made of bringing out additional evidence in favour of an opponent upon the cross-examination, without damaging the witness's credibility, 14 Cr:L. p. 19. See separate chapter "Unnecessary or Reckless Cross-examination.''
It is a good rule never to put a question in cross-examination without being able to give a reason for it.
When you have once got the whole, remember that you can have no more.
The first question which a cross-examiner has to put himself is whether he should cross-examine at all, whether there is anything which has been deposed to in the examination-in-chief against his client, which has to be set right in cross-examination. There ought to be no cross-examination merely for the sake of such examination. Many young barristers think if they do not cross-examine, they are showing their inability to conduct a case; that their clients will think little of them, and what not. A counsel who is worthy of the name will discard all such thoughts and stand fast to what may be called the rules suggested by common-sense.
The most difficult thing to learn in conducting a case is, what ought not to be done.
If you are not quite settled whether a particular question is to be asked or not, as a general rule, you must choose not to risk it.
When in doubt what question to put in cross-examination, put none. Never run an unnecessary risk; and the case must be desperate where any risk should be run at all." See Harris-iv, introductory.
Rule 15. Stop cross-examination when you have got your point. “Do not proceed further than necessary."11 Cr. L. J. p. 81.
"There is danger in asking too much in cross-examination and it is infinitely better that we should ask too little than too ·much."11 Cr. L. J. p. 82.
"Many cases are lost by lack of proper cross-examination, but more cases are lost by too much cross-examination."11 Cr. L. J. p. 78.
"When you get your point keep it and don't let it go until you are through with it.11 Cr. L. J. p. 78.
"Never cross-examine any more than is absolutely necessary. If you do not break your witness, he breaks you; for he only repeats over in stronger language his original story. Thus, you only give him a second chance to tell his story to them and besides by random question you may draw out something damaging to your own case." Wrottesley, p. 99.
"Don't begin to cross-examine upon any point unless you have good ground for gaining that point and stop absolutely short when you gain it.
Let me illustrate what I mean by that.
A witness is called, and he is asked if he said a certain thing upon a certain occasion. In many, many cases, the answer of the witness is:
A: "No, I don't remember that I did."
He asks again: "Well, think it over; didn't you say so and so?"
A: "I don't remember. I don't remember anything about it.
Counsel goes about three questions further, and the man says: 'No, I never said it.”
Now, that is a thing that happens in almost every trial. If counsel had been satisfied to take the want of memory, whilst it may have been against the contention of the counsel, it may not have been against his side of the case. It is infinitely better for counsel that a witness should not remember than that he should remember than swear point blank that he never said such a thing. 20 M. L. J. pp. 860- 870 . For illustrations regarding this rule see separate chapter on "Unnecessary and Reckless Cross-examination ."4.85 MB
Rule 16.-"Never put unnecessarily vexatious questions in order to please your client"
Where the object of the client is merely to gratify his passions by unmerited abuse, by embarrassing or intimidating witnesses, of whose veracity he has no real suspicion, or by conveying an impression of discredit which he does not actually feel, in all classes of this kind, there is an imperious duty upon the advocate, who, while the protector of private right, is also the minister of public justice, which requires them to be repelled.
Rule 17. Do not cross-examine in such a manner as to give room to an effective and damaging re-examination. Sometimes through small openings in cross-examination a large and effective re-examination may gain admittance. Harris' p. 107. For illustrations see separate chapter on "Re-examination.641.88 KB"
Rule 18. Do not expect too much from your adversary's witness.
Rule 19. Never create impression in the mind of a witness that you are his enemy or that you distrust him, even if you have to elicit something unpleasant from him.
Rule 20. Bring out past history or some unfortunate incident in the witnesses life by some suitable apology or in a pleasant manner."
Where it is for cross-examination counsel to inquire into the past history of a witness or to speak about the death of a near relative or dear friend, or to touch some chord of sorrow, or to make a witness speak about something unpleasant for him to think or narrate, it is better to use introductory expressions of deploring the necessity of asking questions, and representing it as one of the unpleasant but imperative duties of counsel. See Cox's Advocate : Wrottesley, p. 78.
Cicero, in his defence of Cluentius, one of the charges against whom was that of having poisoned a son of one of the witnesses, shows how to approach an unpleasant subject like this. Referring to this charge, he says:"I deny that this young man, whom you say died immediately after drinking from the cup, died on that day at all. It is a great and impudent falsehood. Look at the facts. I say that he came to the dinner unwell, and with the imprudence of youth indulged too much at it; that he was ill for some days after, and so died. Who is the witness that speaks to this? He who mourns for his death, his father-his father, I say, who, from his paternal distress, would rise from the place where he is sitting to witness against Cluentius if he had the slightest suspicion of his guilt: he by his testimony acquits him. But, (addressing the father) stand up, I pray, a moment while, however painful it may be, you repeat this necessary evidence in the course of which I will not detain you long; you have acted more righteously in not suffering our sorrow to favour a false charge against a man who is innocent.
Cox's Advocate; Wrottesley, p. 78
Rule 21 Do not rush through your cross-examination.
“There is nothing more common with beginners than going too fast. They are frequently told by the Judge that they forget that he has to take down the answers. When the evidence is coming well, there is no doubt a great temptation to let it run too fast, but you must take care to do it properly.” Harris' Hints on Advocacy p89
Every material particle of evidence should be distinct, intelligible, and in its proper position, or your case will be imperfect as a whole. You had better, if you have a case at all, be too slow with a witness than too fast. Harris' Hints on Advocacy, p. 43.
Counsel are sometimes so impetuous in cross-examination that they put two or three questions in rapid succession without waiting for an answer, as though they were administering interrogatories. This is an exuberance of inquisitiveness which must be restrained if you really desire to cross-examine with success. Harris' Hints on Advocacy, p. 58.
Rule 22. lf you get a favourable answer, do not ask for the answer to be repeated.
If an answer favourable to your side has been brought out in cross-examination, don't press the witness to restate; you can comment upon it when you argue your case to the Jury. Hardwicke, p. 240.
Unless there be a doubt as to what an answer was, you do not require it to be given twice.
" Let well alone," said a Judge to a junior who was so enamoured with a witness's answer that he needs to hear it again and again. There is also a danger of the witness varying his answer unconsciously if you ask him again and again.” See Harris' Hints on Advocacy, p. 89.
“You need not give him a second run for the purpose of going over the same ground again. Having got the answer you want, keep it and at once go off upon another point; otherwise, if you ask him to repeat it for the purpose of directing attention to the good point you have made, he will qualify what he has said, and very likely unsay it altogether by some lying explanation. Give him no opportunity of wriggling out of what he has sworn. That is the business of your opponent, not yours.” See Harris' Hints on Advocacy, p. 73.
Rule 23. Never cross-examine your own witness.
Before Mr. Justice Hawkins, not long since, a junior was conducting a case, which seemed pretty clear upon the bare statement of the prosecutor. But he asked:
Q. "Are you sure of so and so?"
A. "Yes," said the witness.
Q. "Quite?" inquired the counsel.
A. " Quite," said the witness.
Q. "You have no doubt?"
A. " Well," answered the witness, "I have not much doubt because I asked my wife."
Mr. Justice Hawkins : "You asked your wife in order to be sure in your own mind ?"
A. "Quite so, my Lord."
Q. "Then you had some doubt before?''
A. "Well, I may have had a little, my Lord."
This ended the case, because the whole question turned upon the absolute certainty of this witness's mind.
“A cross examination of one’s own witness may bring about a most disastrous result. A witness may get confused and although at first might feel absolutely positive, and be justly positive, yet, by perpetually harassing him, he may begin to doubt whether he is positive or not, and leave an impression that he is doubtful. Such questions such as “Are you quite sure?” and “Are you certain?” are cross examinations and do not fall properly within the scope of an examination in chief.” Harris Hints on Advocacy p38
Rule 24. Do not ask a question too broadly.
You should avoid placing the whole point before the witness otherwise you may get it denied in its entirety. Harris Hints on Advocacy p57
Q: Were you present at the meeting of the trustees when an agreement was entered into between them and the plaintiff?
Q. "Will you be kind enough to tell us what took place between the parties with reference to the agreement that was then entered into between them?
This is an instance of verbosity, which shows that in putting questions, long drawn sentences should be avoided. The more neatly a question is put the better, as it has to be understood not only by the witness but by the Jury. All that was necessary to be asked might have been put in the following words:
"Was an agreement entered into between the trustees and the plaintiff ?"
"What was it?"
It will appear even more strange that after the answer was given by one witness, which was all that was necessary to prove that part of the case, the question was repeated to another with additional verbosity.
"Will you be good enough to inform us what took place upon that occasion between the parties, as nearly as you can, with reference to the agreement that was then, as you have stated, entered into between them? Please tell us, not exactly but as nearly as you can in your own way what his exact words were."
Harris' Hints on Advocacy, p. 42.