Cross Examination part 1
Cross examination is the sexy part of litigation. It is a huge part of the drama of a case. It is one of the most difficult legal skills to master, and even the most experienced and talented advocates can undertake a cross examination which goes horribly wrong. It is undoubtedly one of the most exciting parts for the barrister in conducting any piece of litigation.
Cross examination is cross in the sense of counter or challenge, not cross as in rude. Although there are times when verbal emphasis or the loudness of a question may be required to drive home a particular point, in general a polite but firm cross examination is more deadly than an intemperate or discourteous one. Whether the tribunal the fact is a judge or jury, you want to make them feel unsympathetic towards the witness, not to induce feelings of sympathy.
The purpose of cross examination is essentially twofold. The first is to "put your case". The second is to secure admissions or concessions or otherwise seek to cast doubt upon points made on behalf of the other side.
In complete contrast to evidence in chief it is entirely permissible to "lead" the witness. Indeed usually in a cross examination you will be seeking to suggest the answer to a witness. Asking "open" questions which lead in no particular direction can be extremely dangerous. That is usually reserved for a situation where you can have a great deal of confidence in the likely answer, so that its emphasis is even greater by being apparently voluntarily given rather than being driven out of the witness.
A cross examination in films is usually very dramatic. The barrister or trial advocate asks a few questions and the witness suddenly and dramatically collapses and says the complete opposite of that they were originally saying. Whilst that can happen in the court room, it is rare. Where a witness goes back on their original testimony it is usually as a result of a great deal of work through a series of questions to show such inconsistencies that the witness realises the original position is untenable. More frequently the effort will be to minimise the impact of the testimony. For example a witness who identifies someone will usually not change their mind during cross examination. They may however make concessions about how good their view was or other matters which could have impeded their view.
A witness may have given evidence about one part of the case but may be a source of valuable admissions about other parts. The witness may give evidence about a collision. However there may be valuable admissions that can be obtained about events which took place just before the collision. Advocates always have to consider carefully what admissions on what topics they might be able to secure from particular witness.
Putting your case is also a key part of cross examination. Essentially each side will have a version of events. That version of events has to be put to the principal witnesses of the other side so that they can agree disagree or otherwise comment. If a witness says that A attacked B, and the other side's case is that this occurred the other way around, then the witness has to be challenged about that. It is a way of allowing the tribunal of fact to see the evidence tested and to decide whether it is truthful not.