Prem's subsidiary rules of cross-examination 25-36

Rule 25. When a witness has given some evidence in your favour you should not discredit him by showing him unworthy of belief.

Rule 26.-"Do not ask questions in cross-examination at random without an objective point”  11 Cr. L. J. 7.1

Illustration

It is said of Sir James Scarlett, an eminent advocate and an accomplished cross-examiner:-

"His questions were always pointed, directed to some purpose, and often hit the mark. In cross-examination he outstrips all that have ever appeared in the British Bar, not perhaps in one single quality; for, while some have excelled him in strength and force, others have left him behind in craft. His superiority, however, as an accomplished cross-examiner, as combining the best qualities for the office and making the best use of them at the best time and to the best effect, must, on every hand, be admitted. His brow is never clothed with terror, and his hand never aims to grasp the thunderbolt, but the gentlemanly ease, the polished courtesy, and the Christian urbanity and affection with which he proceeds to the task, do definitely more mischief to the testimony of witnesses who are striving to deceive, or upon whom he finds it expedient to fasten a suspicion. He has often thrown the most careful and cunning off their guard, by very behaviour from which they inferred their security.

Seldom has he discouraged a witness by harshness, and never by insult, and to put men upon the defensive by a hostile attitude, he has always considered unwise and unsafe. Hence he takes those he has to examine, as it were, by the hand, makes them his friends, enters into familiar conversation with them, encourages them to tell what will best answer his purpose, and thus secures a victory without appearing to commence a conflict.” Wrottesley, p. 147.

Rule 27. "Do not press a witness who refuses to answer a material question. A refusal to answer or an evasion of your question, will frequently be more serviceable to you than words."

On such occasions, when assured of the advantage with which you can employ in your argument to the Jury that reluctance to reply, you will not after having plied him fairly continue, to urge him; but having done enough to satisfy the Court that he can, if he pleases, say something more, you should withdraw and then you may suggest such inferences from his silence as may be most advantageous to your cause. It is a frequent and fatal fault of young advocates that they will have an answer in words to every question they put, forgetting that the answer may be injurious, while the silence may be more than suggestive of all that it is their design to elicit.

Rule 28.-"Do not put material questions straight away. Always begin with immaterial questions”

If you are desirous of getting an answer to a particular question, do not put it directly. The probability is that the witness will know your difficulty and avoid giving you exactly what you wish. If not altogether straightforward (and for such witnesses you should always be prepared) he will be on the alert, and unless you circumvent him will evade your question. On' this point Harris in his work on Hints on Advocacy says :-

"A series of questions, not one of them indicative of, but each leading up to the point, will accomplish the work. If the fact be there, you can draw it out, or if you do not so far succeed, you can put the witness in such a position that from his very silence, the inference will be obvious." Harris' Hints on Advocacy, p. 57.

One of the greatest cross-examiners of our day advised a pupil in cross-examining a hostile witness upon a point that was material, to put ten unimportant question to one that was important, and when he put the important one to put it as though it were the most unimportant of all. Harris' Hints on Advocacy, p. 57.

The line of opening questions should be remotely related to the subject and the witness should not be allowed to perceive the object inview. All suspicions in the mind of the witness should be allayed, so that he may be taken completely off his guard.

“The skilful cross-examiner may sometime beguile a hostile witness into relating a version of the transaction which is wholly inconsistent with that told by him upon his own direct examination or which is entirely at variance with what has been previously related by another witness called by the adverse party. In either case, the purpose of the cross-examination has been accomplished, the witness has either contradicted himself or else has discredited the evidence of his fellow-witness. The adversary will be then put in the dilemma of explaining away the contradictions of his own witnesses.” 14 Cr. L. J. 20.

There is the old theory, never ask a question unless you are sure of the answer, but that would destroy a good deal of cross-examination. That is not the way in which I put it.I put it rather that no counsel should ever risk an important question unless he knows and feels the question is proper and right in its form, having regard to form only. I will tell you why this is a dangerous thing, counsel on the other side are waiting for an opportunity at every turn to ease off their client if he is in the hands of a skilful cross-examiner.

Counsel gets up very often and objects; he is asked, “what is your objection?” '

''Well, I object to the form of the question.”

It may or may not be a good objection, but you have defeated, by your objectionable form of question, that which you have been labouring to obtain for 15 minutes or half an hour. How did you do it? The witness has stopped, but he has heard the question, and he is given a moment or two of thought, and he knows what you are driving at, no matter how cleverly you have put it. And by the time you get back to the question, the witness has got his "second wind," and you get your answer, favourable of course to the opposing party.” 11 Cr.L. J. p. 79.

Rule 29.-"When you secure some points in cross-examination leave it and divert the mind of the witness by some other questions of no relevancy at all. Harris' Hints on Advocacy, p. 58.

Rule 30. Do not argue with the witness. (aka cross examination does not mean examining crossly)

“To argue with a witness is not only to abandon your high post of vantage but to make a bad impression on the Jury. You are no longer the advocate but are reduced to the level of an ordinary disputant with a person who will probably be too much for you. Argument is not cross-examination. You will be able to see what you will make of the evidence by and by; at present it is your duty, by questions, to get as much as possible in your favour, or to destroy as much as possible that which has been given against you. Your argument, if worth anything, will be better addressed to the Jury than to the witness; and they will possess this advantage, that then there can be no correction or explanation by the witness.”Harris' Hints on Advocacy, p. 75.

Illustrations

(I) At the end of a long but unsuccessful cross-examination of a plaintiff an inexperienced lawyer once remarked, "Well, Mr. Whittmore, you have contrived to manage your case pretty well!”"Thank you, counsel” replied the witness, with a twinkle in his eye, "perhaps I might return the compliment if I were not testifying under oath...

(ii) Mr Curran once asked a witness: "There is no use of asking you questions, for I see the villain in your face."

 "Do you, Sir?" replied the witness with a smile. " I never knew before that my face was a looking-glass." Wellman, p. 128.

Rule 31. Do not go over in cross-examination the same ground as that covered in examination-in-chief. 11 Cr. L. J. 74.

Rule 32. Never ask a question the answer to which may be adverse to your case.

When there is any doubt as to whether you should put a question or not, the sound rule is not to ask the question at all.

“There are so many ways of framing a question or a series of questions, that it would disclose a poverty of ingenuity indeed if you asked one that might involve the fate of your client.”Harris' Hints on Advocacy, p. 56.

It has been said that you ought to hesitate very much to ask a really critical question at a critical moment in the case, unless you are reasonably sure of what the answer is going to be.11 Cr. L. J. p. 79.

Rule 33. Do not cross-examine unnecessarily to obtain an explanation." Do not cross-examine for explanation unless the explanation is necessary for your case.

Illustrations

(i) This piece of cross-examination was in a case where an alibi was set up. The charge was murder.It was alleged that the prisoner had slept, on the night of the murder, in a cottage a great many miles away from the scene, and that he was in bed by a certain hour.The tenant of the cottage with whom the prisoner lodged was called by the Crown and said that the prisoner was not at home on the particular night. It was considered advisable to break her down in cross-examination, which was to this effect :-

Q: "How do you say he did not come home that night?"

A. "Because I sat up."

Q: "But might he not have come in and you not have heard?”

A: "He could not."

Q: "You might have been asleep?"

A: "I was not asleep."

Q: "How long did you sit up without going to sleep ?"

A: "Until four o'clock in the morning,"

Q: "How do you know he did not come in while you were asleep?

A. "Because I looked in his bedroom to see if he had been in and his bed had not been slept in."

There was nothing more to be asked. Counsel for the accused could not have expected to gain anything by these explanations.

(ii) In a case of murder a witness was pressed in the following manner with the following result:-In this case the question was, to what sex the deceased belonged.

Q. "Do you mean to say you know the deceased by her clothing?''

. A. "Yes, I know every garment she wore."

Q. "But do you mean to say you know the deceased person was the woman?"

A. "Yes."

Q. "How do you know her?"

A. "By her features."

Sentence: Death.

(iii) In a case of murder, in which a witness had sworn to the body of the deceased by certain work which he had done to the dress in which the body was clad, the question was asked.

Q. "Do not all dress-makers sew pretty much alike ?''

A. "Yes."

Q. "How, then can you say this work is yours?"

A. "Because I know my work from everybody else's."

Referring to this Mr. Harris says: "I often wonder what the fascination is that leads so many counsel to ask a hostile witness

• “How do you know that?'

• 'Why do you say that? ' "

• "How?"

• "Why?"

• 'Wherefore ?"

• "What is the reason?"

• ''What is your opinion?"

These questions are a nest of snakes for the innocent beginner to lay hold of.

(iv) The following illustrations are well worth perusal:-This was a cross-examination of an intelligent Police constable.

Q. "Had you any reason, constable, for arresting the prisoner as you did for suspecting him, in fact?"

That was the straightforward way of putting it. Judges like straightforwardness- the Jury admires the young counsel's jaunty manner, and the Police constable likes to be dealt with without any attempt to circumvent him. But that is a very dangerous question for the accused. It would cost him his liberty.

 Q. "Why did you suspect him?'' asked counsel.

A. "l knew he was one of the worst thieves we’ve got” was the reply.

Mark the impression that the question and the answer should have made upon the Jury. How any answer to such a question would benefit the accused, it is impossible to know. Harris' Hints on Advocacy, Introductions, xii-xiii.

Rule 34.-"Do not tell a witness again and again that he is on oath." 

Be careful to avoid contracting the habit into which an advocate is liable to lapse if he does not keep guard over himself at the beginning of his practice. Do not indulge too much in adjurations to witnesses to speak the truth by reminding them continually that they are on their oath.

"Now, Sir, upon your solemn oath," ''Remember, you are upon your oath, and take care what you say," and such like.

If frequently introduced, they lose their force by repetition. They are very effective when judiciously employed and uttered with a due solemnity of tone and manner and on fit occasions, but they should not be put forward on every slight pretence as well to frighten an honest witness as to awe a dishonest witness. Reserve such an appeal for times when it may be used with effect, because, with obvious propriety, when you believe that a witness is tampering with his conscience you may sometimes successfully prevent the contemplated perjury· by a solemn appeal, and especially if you add to it an exhortation not to be hasty in his answer, but to think before he speaks. The countenance, the tone of the voice, the very attitude, should express the language you utter. You may word it somewhat after this fashion: 'Remember, you have sworn to tell the truth and the whole truth. Now (put the question, and add), think before you speak, and answer me truly as you have called God to witness your words."Cox's Advocate referred to in Wrottesley's Examination of Witnesses, p. 188.

Rule 35.-Do not repeat questions in cross-examination. But sometimes by sheer repetition you unnerve a witness and get the truth out from him. See separate chapter " Repeating Questions in Cross-examination."1.5 MB

Rule 36. If you can safely admit a fact do not put the other party to proof which the other party can easily prove.