Prem's Subsidiary Rules of Cross-Examination 37-46
Over the centuries there have been many advocates that have put together some "rules of cross examination" to help baby barristers learn what they need to do in order to cross examine effectively. One of these is Prem, who has compiled various "rules of cross examination" from a range of sources. The following is a copy of Prem's subsidiary rules of cross examination, reproduced here for convenience. I have also provided links where possible to the original source of the rules.
Prem's Subsidiary Rules of Cross-Examination 37-46
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.
Rule 37. Do not cross-examine a witness on unimportant details.
Assuming that you prove something by examination of particular ' . details, ask yourself, "Now, if I prove that fifty times over, will that affect the judicial mind or will it affect the minds of the Jury who are finally disposing of this matter?" If it won't, then drop it. Leave it out immediately. II Cr. L. J. p. 74..
Counsel should take care that he does not argue with the witness about the correctness or appropriateness of the language used or such other trifles.
It has often happened that an Advocate has been placed not only in a false but in a grotesque position by not observing this rule. On one occasion a gentleman who desired to 'score' off a witness asked:
"Were you doing so and so, Sir?"
"Yes," said the witness, "I were."
"You mean," retorted the Advocate, "You was."
The learned gentleman, I need not say, was overwhelmed with the ridicule he had endeavoured to cast upon the witness. See Harris, Illustrations in Advocacy, p. 90.
"A poor Welsh woman leaving home to attend an annual meeting of the Methodists replied, on being questioned as to the numerical amount of the probable assemblage, that perhaps there would be a matter of four millions, this in a little open ground that, by no possibility, could accommodate as many thousands." See Hardwicke's Art of Winning Cases.
Rule 38. Do not lose your temper and never make an exhibition of ill-feeling. Harris' Hints on Advocacy, p. 220.
“In cross-examination it is important to eliminate any concern about your own case, because the moment you are thinking about what your case is or will be, or what effect the evidence will have on your case, your mind is distracted from a subject which requires singleness of eye and purpose, and singleness of mental action." 11 Cr. L. J. p. 78.
“Mr Wilde (afterwards Lord Penzance) when a Queen's counsel was a remarkable advocate, with the advantage of good presence and, unlike many eminent leaders, generally took a favourable view of a case before it came on, instead of suggesting difficulties. If he lost the verdict he would say: "We cannot always win."Harris' Hints on Advocacy, p. 822.
"Never be bluffed out of Court, but do not begin the bluff," says Judge Donovan in his work entitled "Tact in Court," p. 118.
Once in Court, stay in, and be an opponent, as Shakespeare well describes through Polonius :"Beware of entrance to a quarrel, but being in, bear it that the opposer may beware of that” Tact in Court p118
"Never show disappointment." 11 Cr. L. J. 79.
"Be forcible, firm, dignified and clear."
"Be bold and press a just claim of proper defence regardless of consequences, and do not exult on favourable answers.
On this subject, Cox says :-"At the very outset, let us warn you against exhibiting any kind of emotion during cross-examination ; especially to avoid the slightest show of exultation when the witness answers to your sagacious touch, and reveals what apparently he intended to conceal. It startles him to self-command and closes the portal of his mind against you more closely than ever.'
“You have put him upon his guard and defeated yourself. Let the most important answer appear to be received as calmly and unconsciously as if it were the most trivial of gossip. In the same manner you may carry him to the conclusion of his story, and what with an explanation of one fact, and addition of another and a toning down of the colour of the whole, his evidence will usually appear in a very different aspect after a judicious cross-examination, from that which it wore at the close of the examination-in-chief. Cox's Advocate.
Rule 39.-"Never attempt to distort facts in cross-examination”
“Nothing weights as much with the Tribunal, whether Judge or Jury, than the act of counsel that seeks not to accept the facts with qualifications but who seeks to distort the facts in order that the fact may mean something less or more than it should mean.” 11 Cr. L. J. p. 75.
Cox says:"It must be understood that, in all this, your only purpose should be to ascertain the very truth, to trace an error if it exists, to try the memory of the witness if it be trustworthy. Never should you seek to trap the witness in a falsehood, nor by your art to throw the witness into perplexity, with a design to discredit the witness, if you believe the witness not only to be honest, but that he has not erred. Your duty as an advocate is strictly limited by the rules of morality. It is no more permissible for you to tamper with the truth in others or tempt them to confound or conceal it than to be false to yourself. The art to be practised in cross-examination is to be used only when you really believe that the witness has not told the truth and jt is your honest purpose to elicit it."Cox's Advocate cited in Wrottesley, p. 112. ·
Never attempt to win the case by improper means. Always base your claim or defence on justice, equity and good conscience and not on mere technicalities.
It has been said of Abraham Lincoln that "he had the ability to perceive with almost intuitive quickness, the decisive point in a case and the wisdom to throw away all the trappings, no matter how brilliant they might be, and cling to that one main point as a shipwrecked seaman clings to a lonely spur." In speaking to his partner Mr Herndon, he said "If I can clear this case of technicalities, and get it properly swung to the Jury, I will win it."13 M. L. J. p. 211.
General John H. Littlefield, who studied law under Mr. Lincoln tells this anecdote of him:
"All clients knew that, with old Abe as their lawyer, they would win their case, if it was fair; if it was not, that it was a waste of time to take it to him. After listening some time one day to a would-be client's statement, with his eyes on the ceiling, he swung around in his chair and exclaimed:
"Well: you have a pretty good case in technical law, but a pretty bad one in equity and justice. You will have to get some other fellow to win this case for you; I cannot do it. All the time talking to the Jury I would be thinking, 'Lincoln, you are a liar,' and I believe I should forget myself and say it out aloud."13 l\I. L. J. p. 211.
"Much of the force of his argument," writes Judge Scotts, "lay in his logical statement of the facts of the case. When he had in that way secured a clear understanding of the facts, the Jury and the Court would seem naturally to follow him in his conclusions as to the law of the case. His simple and natural presentation of the facts seemed to give the impression that the Jury were themselves making the statement. He had the happy and unusual faculty of making the Jury believe they, and not he, were trying the case. Mr. Lincoln kept himself in the background, and apparently assumed nothing more than to be an assistant counsel to the Court or the Jury, on whom the primary responsibility for the final decision of the case in fact rested."
(CB Comment - Having read Iain Morley QC's brilliant book, the Devil's Advocate, this is a great description of an advocate being both irresistible and invisible, and leading the Judge and jury home.)
Rule 40. Never abuse your privilege as counsel See separate chapter Abuse of Cross-examination.2.56 MB
Rule 41. Do not appeal to the sympathy of the Judge or Jury too often. It is not often that the Jury can be reached from the front in battle, and a flank movement may be better. A Western counsel made an appeal for the release of a young boy, charged with arson, a terrible offence, not clearly proven by this side illustration:
“To a boy like this, life is little thought of, and punishment is hardly realised. He sits there as cold as marble. Brought in unironed and on bail, surrounded by some friends who love him, he has not yet learned to realise the consequences of an adverse verdict. The chief anxiety is the other members of his family. To them his conviction would be worse than the grave. When the little Farrington boy was crushed to death the other day between two huge trucks and Dr Eddy folded his broken body in his fatherly arms and carried it home, the scene was one long to be remembered. But the parting of a mother with a conviction to know that he is to linger in his youth ten or a dozen years in anguish is a far deeper sorrow. Sooner or later all home relations will be severed. Death with noiseless footfall comes in, seals up the doors of breath, puts out the light of the eyes, freezes the purple current of the veins and we lay them; to rest forever and go away in sadness for a time: but even death is not dishonour. It is not like consigning one to a living tomb; not so dreadful, not so terrible in its consequences; and of all things to a Jury, the first and middle and last consideration is the consequences of their verdict. See Donovan Tact in Court pp39-40.
Rule 42: "Be always ready with law and evidence".
“Make your own case by your own side's testimony. Stop when you get a ruling, make a point, or reach a climax. Let the other side kill their case by cross examination if they care to, but leave such weapons to the unwary. Act with firmness; hate no one; learn to please in persuading; rely upon fair jurors, clear testimony and intense energy with a thorough preparation. “
See Donovan Tact in Court. See separate chapter - Preparation for XX.
Rule 43 "Never interfere with the judge if he begins to cross examine.
Rule 44 Do not attempt to effect the impossible in cross examination.
Rule 45 "Do not lead the witness to absurd results" See separate chapter on "Do not lead the witness to absurd results"789.79 KB
Rule 46 "Do not make observations on the testimony while the witness is under examination".
Mr Adolphus, cross examining an alleged accomplice:
Q: “I think you told us some things on Monday (at another trial for the same plot) that did not come to your recollection today?”
A: "That may be. I will not pretend to say that the next time I come up here I can communicate as I have done today."
Q: "Certainly not; there are people that proverbially ought to have a good memory"
A: "Yes, certainly."
Q: "You make your evidence a little longer or shorter according as the occasion suits."
A: "Yes, I mention the circumstances as they come to my recollection..."
Mr Gurney: "That is observation and not question."
Mr Adolphus: "I am asking him a question."
LCJ Dallas: "You should not now observe on the evidence"
Mr Adolphus: "He has said it himself, 'When next I come into the box, I shall recollect other things' and upon that I put the question, whether he would tell another story the next time he comes"
LCJ Dallas: "Ask him the question if you wish it."
Mr Adolphus: "Shall you tell us a new story the next time?"
A: "No. If anything new occurs to my mind when I come to stand here, I will state it"
(1820) Ings Trial 33 How. St Tr pp 957-999