Bar course exams are notoriously difficult, and many bar students consider the most difficult bar exam of them all is the one that tests cross-examination techniques. This article will focus on the most essential cross examination technique, the use of the leading question, or to put it another way the question that suggests the answer.
You may have a law degree, you may have passed many law exams, but no academic essay question can prepare you for that moment when you are, faced with a hostile witness, with nothing for company but your list of questions to ask in cross-examination. A daunting prospect whether you are in a bar exam, a law society exam or appearing in a supreme court.
This article aims to reveal the mysteries of the art of cross-examination and introduce to you to a trick of the trade that will allow you to cross examine any witness, whether a lay witness or an expert witness with confidence and with ease. Let us begin with an obvious and yet important question.
Cross-examination: meaning?
The late John Henry Wigmore an American jurist claimed
Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skilful enough not to impale his own cause upon it.
Roy Black a New York civil and criminal defence trial lawyer was more realistic.
Think of cross-examination as a series of statements by the lawyer, only occasionally interrupted by a yes from the witness.
An effective cross-examination will generally have two main aims:
To test the witness evidence
When examining a witness, the reliability of their version of events is tested by questions seeking to undermine the credibility of that witness.
To put your case to the witness
In other words to give the witness an opportunity to comment on, your client’s case.
Notwithstanding, what is often portrayed on screen, a cross-examination is not necessarily aggressive. These techniques can often be counterproductive. It is best to avoid being hostile or to gratuitously adopt aggressive body language.
Often what you are seeking to achieve is to tease out that information from a witness that will support your case, rather than try to bully them into agreeing with you.
When do we cross-examine?
In a civil case: cross examination takes place after the witness has confirmed the contents of their witness statement to be accurate and true.
In a criminal case, it will take place after the witness has been examined in chief. It is therefore a very important part of your preparation to listen carefully during the witness evidence.
How to prepare cross-examination questions
When preparing for your bar exam understandably you will be focussing on how to write cross examination questions. You may have previously used a list of cross-examination questions in a mock trial If you did, then that is your first mistake. What you should focus on from the beginning is an analysis of the issues in the case. The factual issues that are in dispute between you and the opposing party. Once you have analysed those issues, and have a clear case theory or case concept, then you are free to use that work experience. Think about the sort of questions to ask in cross-examination, those most likely to tempt the witness on the other side to provide answers that support your case or undermines their own.
You should prepare thoroughly for your cross-examination without writing out a list. You should be aware of what you wish to elicit from any one witness and how best to structure your cross-examining questions. Ask yourself, should I take a chronological approach with this witness, or should I theme it, for example, upon a factual issue such as drink in a case where specific intent is the legal issue.
I am often asked by students and practising barristers how to write cross-examination questions. The answer to that question is simple please don’t! The single best tip I can give you when preparing for your cross-examination assessment is not to prepare, for example, “sample cross-examination questions assault “or “sample cross-examination questions car accident.” The cross-examination is not a scripted play. The witness does not have the scripted answers to your questions, ready to answer as you want them to. This means that if you are wedded to a script, the moment the witness evidence says something that you were not expecting, then your next scripted question will be of no help. The witness may say to you “I do not understand the question”, if you have a script, then you may not be able to rephrase that question in the heat of the moment. If you have a script, it will inhibit your ability to listen carefully, which is a vital skill for an advocate.
Instead, have a very clear plan about the direction of any one line of cross-examination. Know what the final conclusion of your line of questioning is. The preceding questions should then flow naturally and lead you to that point. Remember, the crucial rule, never ask a question if you do not understand the question or why you are asking it.
How to frame your questions
A question I am often asked is can leading questions be asked in cross-examination?
This is the fundamental difference between direct examination vs cross-examination.
The answer to the question is; yes you should use leading questions on cross-examination. The biggest advantage you have in cross-examination is control. You are in control of the answer because you are asking a question that suggests the answer. The essence of a leading question is that it is not a leading question at all. It is a statement followed by a request for confirmation.
A simple example:
“You had drunk ten pints that night, hadn’t you?”.
The first part is a statement “ You had drunk ten pints that night”
The second part ( the tag) is the request for confirmation, “hadn’t you?”.
By framing the question in that way you have control of the answer. It is likely to be “ no”, “yes” or “I can’t remember/I don’t know? /I am not sure”. You should be able to anticipate the answer to that question because it will be based upon the evidence that you have read/heard in the case. This is the point Roy Black was making about cross-examination.
As a bar student facing that bar exam, it should be comforting to know that, by following some simple cross-examination techniques, your experience of a cross-examination will be less nerve wracking. Open questions such as “Who, What, Why etc” are generally reserved for examining a witness in chief. That is not to say there is no place for open questions in cross-examination but rather, at this stage of your training, you should strive to avoid questions that sacrifice control to the witness. Keep control of those questions to ask in cross-examination by keeping them narrow and focussed. This applies equally to cross-examination questions in civil cases as it does to cross-examination questions in criminal cases.
Incidentally there is no difference in technique between cross-examination questions for prosecution or defence.
Some cross-examination tips
- Control the witness – do not let the witness control you.
- Avoid open questions which transfer control to the witness.
- Lead.
- Ask assertive, closed questions.
- Ask one question at a time.
- Put your case carefully.
- Listen to the answers.
- Work your case into the flow of the questions.
- Avoid being hostile / adopting an aggressive posture.
Once you feel comfortable and proficient with this simple technique then it is time for you to move onto the most vital trick of them all, how to trap a witness.
If you are a bar student worried about your performance in the cross-examination mock exam and believe you need some additional help for the actual bar exam, or even a qualified lawyer seeking higher courts rights (who wishes to improve cross-examination techniques), then this is what we can offer you.
We would like to express our gratitude to the author, a criminal barrister with 25 years of courtroom experience, a circuit advocacy trainer and a highly experienced bar course designer and tutor, who kindly agreed to prepare this article for us. This article was written in response to requests from a few aspiring barristers and one social worker. Please let us know if there are any other topics on which we may assist bar students. For those aspiring barristers interested in becoming solicitors, the SQE has opened doors for you since September 2021. You can read more about how bar students can become solicitors.
