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The sound and fury of cross-examination: 10 guidelines

There are few topics in the law written on as extensively as cross-examination.  Cross-examination is to a lawyer as is the breakaway shot is to the hockey player, the Oscar-winning monologue to the actor, or the entrée to a very good meal.

Cross-examination is the climax of any good lawyer movie, and for good reason.  It is exciting, dramatic, emotional, intense, and at times stunningly brilliant.  We all remember Jack Nicholson in A Few Good Men after being questioned, cornered, and cajoled by Tom Cruise shout "You can't handle the truth!".  Metaphorically it is a scene that every lawyer tries to replicate as they approach to dais, hoping for the moment they break the witness down to tears or emotion that solidifies an acquittal or conviction.  In reality, this rarely happens; however, it does not take away from the effectiveness of a good cross-examination.  

Every litigator has their own style and theories on what makes an effective cross-examination, and no one in particular is categorically right or wrong of how that is defined, or what rules must be followed or avoided.   In the end, effectiveness comes down to persuasion, which can be achieved through infinite means and through any individualized style.

Notwithstanding, here are a few observations I have made over the years conducting hundreds of criminal trials that I hope may assist some lawyers in developing the style that they think is most effective. 

1.     Have a purpose

Throwing muck on the wall and hoping something sticks is a sure way to bore and confuse a judge or jury.  Impeaching witness on collateral issues may be impressive and amusing to you, but it does nothing to further the interest of the judge or jury in trying to figure out what happened on the issues that are relevant.  Before putting on your menacing glare and unsheathing your Mont Blanc pen, ask yourself what am I attempting to obtain from this witness: Is it damage control? What admissions can I obtain? What admissions do I want? What risks are present? How does their evidence fit into my overall theory? Do I want them credible or incredible, or incredible on certain aspects but believable on others?  Have an objective for every witness and an understanding on how they mesh in your overall theory.

2.     Sometimes silence is more powerful than words

Although not as entertaining, refraining from asking a witness any questions can be a very powerful statement to a judge or jury.  For many litigators, particularly inexperienced ones, there is an insatiable desire to ask questions, no matter how irrelevant, innocuous, or risky those questions may be.  If the witness has already testified in a manner that is helpful to you, does not hurt your case or theory, or the risk outweighs any reward, then stand up confidently and state to the Court: “no questions”.  It says to the judge or jury that this witness’ evidence is acceptable or does not concern you in the slightest.  This comes with the caveat that you must ensure you meet your obligations set out in Browne and Dunn, i.e., confronting relevant witnesses on evidence that you intend to introduce through other means, when they have the ability to do so. 

3.     Remain professional

Juries, judges, and witnesses can all detect emotion and that is precisely what you are trying to extract in a favourable way from the person sweating in the witness box.  Therefore, it is not something that you want to portray as counsel.  For a lawyer to show emotion that is beyond what one would expect of a professional is counter-productive.  In particular, anger and frustration have no place on counsel’s countenance.  If you are justified in your internal anger and frustration with a particular witness, then the jury or judge likely feels the same emotion.  Your patience and fairness can even be amplified by their witnesses’ behaviour that may stoke those emotions.  Professionalism and patience adds to your credibility as counsel.  Emotions also cloud objectivity and your ability to assess whether your examination is having the intended effect. 

4.     Never interrupt a witness.  

Listening to a lawyer and a witness trying to speak over one another is painful to the judge or jury.  Whatever points you think you may be scoring, they are either being drowned out by the witness or the jury has tuned out the dissonance.  Controlling the witness is important but interrupting them is never the way to obtain that.  It may also portray you as being unfair and sharp with a witness if you are not letting them answer the questions fully.  If a witness is unnecessarily prolix that it would require some form of intervention, then that direction should be sought from the Court.  

5.     You must know how to impeach someone properly on prior inconsistent statements.

If you do not know how to hammer a nail, you shouldn’t be building houses.  It is the same thing with lawyers.  If you cannot understand how to properly impeach someone, what rules of evidence apply, and what fact you are trying to elicit or undermine, then your structure will crumble.  There are few things more effective in trial than a powerful impeachment but it must be done properly and a manner that is organized and concise.  An entire blog entry, or book, could be written on effective impeachment.  Therefore, suffice to say that impeachment requires a proper understanding of the law, practice and purpose.  Are you allowed to impeach them?  Is there actually an inconsistency?  Is that inconsistency important? How is it important? Do you want them to adopt the initial statement or undermine their credibility at large? Where is the inconsistency in the statement?   Here is the simplest of examples in trying to have someone adopt a prior statement that you want them to adopt as opposed to undermine:

Q:              You just indicated to the court the car was blue?

A:             Yes.

Q:             Do you remember providing a statement to police on the night of the robbery?

A:             Yes.

Q:             Were you telling the truth to the police at that time about what you saw?

A:             Yes.

Q:             You were sober and aware of what had just happened?

A:             Of course, I just saw it all clearly.

Q:             The statement was immediately after the robbery was it not?

A:             It was.  About 10 minutes after.

Q:             And like all humans, your memory would be better immediately after the event than it would trying to recall things 6 months later, as you are trying to attempt here?
A:           Sure.  That makes sense. 

Q:             Can you please look at this?

A:             Ok.

Q:             And what is that?

A:             The statement I provided to police on the night of.

Q:             And you would agree that you told the police that the car was yellow?

A:             Yes, it appears I did.

Q:             You already indicated you were not trying to mislead police that night.

A:             Of course not.

Q:             And you agreed that your memory would have been better that night, 10 minutes after the event?

A:             Yes.

Q:             Its fair to say that looking at this now, the car must have been yellow, and you are simply mistaken now, 6 months later trying to remember things as best as you can?

A:             I guess so.

6.     The primacy and recency effect

All people, including judges and juries, remember things at the beginning and at the end of a sequence.  For example try to remember the following sequence 48390804832098322.  As you read on, you most likely remember the numbers 4839 and 322.  The number sequence is just an example of how information is retained.  Understanding that, putting the most important parts of your cross examination at the beginning and end will assist the jury in remembering the aspects you want them too.  Similarly, putting the information that is less favourable in the middle has the psychological effect of having less impact – i.e. examining on a criminal record of your client.  One example of this used in practice is an immediate confrontation of a murder weapon of an accused: “Do you recognize this sir?” while holding the bloody knife in your hand.

7.     Avoid opinion and submissions to the witness - establish facts, not conjecture.  

Opinions are like noses, everyone has one and they are only useful to the person whose face it is attached to.  Counsel should never provide opinions on the witness’ evidence, or make sarcastic remarks.  If an argument is to be made on the incredulous aspects of a witness’ evidence, save it for your closing submissions.  Being sarcastic comes across as abusive and is not helpful to any judge or jury in their roles of fact-finding.  If you have established the facts properly there is no need for hyperbole or opinion as you will have already accomplished that.  Keep your opinions to yourself and let the facts do the talking.

8.     Listen to the answers.

Too often litigators will be so entangled in their meticulous questions that they fail to see manna raining from heaven.  It is not uncommon for a witness to offer information that, although is not part of your script, is very favourable to your case.  Pay attention to the answers and the side-issues raised by the witness.  Asking a few more exploratory questions on a collateral issue may be the very thing you need to win your case.  This skill may require some comfort and skill with the unknown but practice and experience will allow you to ask those exploratory questions without creating substantial risk to your case. 

9.     Save your fury

If every witness is treated like the Colonel who ordered the Code Red, the routine is going to get very tiresome. This is not to say that witnesses should never be approached with all the professional sound and fury you can muster – however, they must deserve it.   Some witnesses will never deserve this treatment no matter how much they may be mistaken or lying.  For example, making a 10 year old sexual assault complainant cry, rarely gets you very far. Chose your battles wisely and when necessary, and only necessary, lay your vengeance upon thee.

10.  Develop your own style.

In the end, cross-examination comes down to a personal style that is developed over the years and crafted to match the strengths and weaknesses of the individual lawyer.  One lawyer's effective modus operandi is not easily transferable to another.  Effective cross-examination usually many examinations to develop, and many more to master. Hopefully some of the observations I have made over the years in conducting hundreds of criminal trials serve useful in developing and mastering your own style.  

Sean Robichaud, Criminal Defence Lawyer

www.robichaudlaw.ca 

What's the difference between a indictable and summary conviction offence in Canadian law?

Under the Criminal Code of Canada, there are three types of offences: summary conviction offences, indictable offences, and those offences where the Crown may elect to proceed by summary conviction or by indictment.  Crown-electable offences are often referred to as "hybrid offences".  The simplest explanation of the difference between summary conviction offences and indictable offences is that the former is less serious than the latter.   

Summary Conviction Offences

Summary conviction offences include the least serious offences under the Criminal Code of Canada.  Relatively speaking to the number of offences under the Criminal Code, there are actually very few pure summary conviction offences.  Those pure summary conviction offences include: possession of marijuana under 30 grams, solicitation of prostitution,  being found in a common bawdy house, etc.

There are unique aspects that apply to summary conviction offences that do not apply to indictable offences.  For example, a six month limitation period applies to all  summary conviction offences or if the crown chooses to proceed by summary conviction.  Another unique aspect to summary conviction offences is that a person charged with a pure summary conviction offence (not hybrid) is not required to submit their fingerprints with police upon or after arrest or conviction. Summary conviction offences are appealed in the Superior Court of the relevant jurisdiction, and not directly to the Court of Appeal.  In Ontario, those appeals take place in the Ontario Superior Court of Justice.  Summary conviction offences generally carry a maximum penalty of six months in jail, although some electable offences have a maximum of eighteen months in jail (e.g. assault causing bodily harm, assault with a weapon, forcible confinement, sexual assault).  A person is not entitled to a jury trial or to have their case heard in the Superior Court of Justice, unless it is being heard alongside an indictable offence at the same time. 

Indictable Offences

Indictable offences are the most serious of criminal offences and would include murder, acts of terrorism, robbery, drug trafficking, robbery, treason, certain types of sexual assault, and other very serious criminal acts.  As one could imagine, the sentences for these types of offences are very serious and often carry a potential maximum penalty of life imprisonment.  Anyone charged with these sorts of offences usually has the right to choose their mode of trial: judge alone in Provincial Court without a preliminary hearing, judge alone in Superior Court with or without a preliminary hearing, or a jury trial with or without a preliminary hearing.  However, not everyone who is facing an indictable offence is entitled to a preliminary hearing or a judge and jury trial (those exceptions are set out in section 553 of the Criminal Code).  Similarly, not every type of offence permits the accused to elect to have a judge without a jury unless the prosecutor consents (for example, in first-degree murder the Crown must consent to have the case heard by a judge alone). 

There is no limitation period for indictable offences and a person can be charged, tried, acquitted or convicted at any time the police wish to proceed with the charges provided there is a sufficient basis for doing so. 

Usually indictable offences very complicated with serious consequences.  Although it is never a wise choice to defend allegations without the assistance of a lawyer, doing so when facing an indictable offence is reckless.  Appeals for indictable offences are heard by the Court of Appeal for the Province the case was heard. 

Hybrid Offences

Hybrid offences are those offences where the Crown may choose to proceed by either indictment or summary conviction.  These types of offences cover the majority of Criminal Code of Canada offences.  The include, but are not limited to: assault, sexual assault, fraud under $5000.00, theft under $5000.00, assault with a weapon, assault causing bodily harm, possession of cocaine (simple possession), and many more. 

The decision by the Crown to proceed by way of indictment or summary conviction is a discretionary one that is not subject to review by any court (unless there was a deliberate abuse of process which would be exceptionally rare and very difficult to demonstrate).  In assessing whether or not to proceed by indictment or summary conviction, a Crown would consider factors that may include:  the seriousness of the allegations (for example, "sexual assault" can include either touching or full intercourse), the accused's prior criminal record, the notoriety of the case in the community, the availability of court resources, whether the offence is sworn outside the limitation period for a summary conviction, the complexity of the case, and any other relevant considerations. 

If you wish to lean more, please visit www.criminallawyerintoronto.ca or call (416) 220-0413 to discuss these or any other issues relating to criminal law.