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The rules of cross-examination

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. For example, David Paul Brown, who was a member of the Boston Bar published "A Forum" in 1856 and has laid down nine "Golden Rules for the examination of witnesses" which are reproduced below:

Rule 1. Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate.

Rule 2. Be not regardless of the voice of the witness; next to the eye, this perhaps is the best interpreter of his mind. The very design to screen conscience from crime-the mental reservation of the witness-is often manifested in the tone or accent or emphasis or the voice.

Rule 3. Be mild with the mild, shrewd with the crafty; confiding with the honest; merciful to the young, the frail or the fearful; rough to the ruffian and a thunderbolt to the liar. Bring to bear all the powers of your mind not that you may shine, but that virtue may triumph, and your cause may prosper.

Rule 4. In a criminal case, so long as your case stands well, ask but few questions, and be certain never to ask any, the answer to which, if against you, may destroy your client's case unless you know the witness perfectly well, and know that his answer will be favourable, or unless you be prepared with testimony to destroy him, if he play traitor to the truth and your expectations.

Rule 5. An equivocal question is almost as much to be avoided and condemned as an equivocal answer. Singleness of purpose, clearly phrased, is the best trial in the examination of witnesses, whether they be honest or the reverse. Falsehood is not detected by cunning, but by the light of truth, or if by cunning, it is the cunning of the witness, and not of counsel.

Rule 6. If the witness is determined to be witty or refractory with you, you had better settle that account with him first, or its items will increase with the examination. But be careful not to lose your temper; anger is always either the precursor or evidence of assured defeat in every intellectual treat.

Rule 7. Like a skilful chess-player, in every move fix your mind upon the combinations and relations of the game; partial and temporary success may otherwise end in total and remedy-less defeat.

Rule 8. Never undervalue your adversary but stand steadily upon your guard; a random blow may be just as fatal as though it were directed by the most consummate skill, the negligence of one often cures and sometimes renders effective the blunders of another.

Rule 9. Be respectful to the Court and to the Jury, kind to your colleagues, civil to your antagonist, but never sacrifice the slightest principle of duty to an overweening deference towards either. See Chapter on "Behaviour of Counsel and Judge."

 You can download a copy of these rules by clicking here.

It also worth comparing the above rules from 1856 with Irving Youngers pdf10 Commandments of Cross Examination.69.8 KB You can find a Youtube video of the 10 Commandments of Cross Examination, given by Irving Younger by clicking here.   You will see that many of the rules of cross examination are the same now as they were then!

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