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Don't cross them

18 August 14

Is there a way of judging when, and when not, to cross-examine? The author shares some personal experiences

by Robert Mitchell

In an attempt to improve my own performance in criminal trials, I have been thinking about what it is that makes some advocates more effective in cross-examination than others. Actually, to be more precise, I’ve been thinking, reading some of the classic texts on advocacy, watching others and analysing my own performance.

I was fortunate enough to be involved recently in a number of cases with some of the best counsel Scotland has to offer, and the experience has been particularly illuminating. As counterintuitive as it might sound, I believe the first important thing to learn about cross-examination is when not to do it. And the second most important thing is knowing when to stop doing it once you have started.

Why not?

There are multiple reasons why counsel might not crossexamine at all, and I’m including in this category short cursory cross-examinations on peripheral issues.

1. The evidence was unimportant or did not hurt your case. These days most of this kind of evidence will be agreed. But where it’s not, omitting to cross-examine makes it clear just how unimportant the evidence was. It also gives defence counsel the chance to show the jury that he or she doesn’t just give every witness a hard time for no reason.

2. The witness unexpectedly omitted to say something important or damaging. Sometimes this occurs because of an error, and not cross-examining prevents the mistake being corrected by re-examination. There is also the danger that a trap has been set for you. Damaging evidence has more impact if brought out by the cross-examiner. I once witnessed an advocate depute taking a complainer through his previous convictions, omitting only one. The defence QC sprang to his feet and asked the witness if he did not also have a previous conviction for conspiracy to rob, only to get the unfortunate reply: “Yes, along with your client.”

3. Sometimes the witness’s evidence was not credible, or it was contradicted by other witnesses. In this situation, the damage has already been done, so why give any significant opportunity for improvement? I vividly recall a mistake of my own in a Misuse of Drugs Act case involving test purchase officers. The first officer tied himself in knots trying to explain why a drug dealer who was selling through a letterbox and from behind a curtain to avoid being identified would open his door to two strangers, thus allowing them to identify him in court. He ended up having his own statement put to him by the prosecutor in an attempt to repair the damage.

His colleague gave evidence the next day, and she was a much better witness, who contradicted the other officer on important points. I cross-examined her in a similar way to the first, but she had clearer explanations. If I was cynical, I would suspect she had been tipped off by her colleague overnight. Nothing fazed her and she was extremely credible. Sadly, I gave her the opportunity to explain all of the first witness’s errors and the accused was convicted. In retrospect I realise that this was exactly the kind of situation where a short cursory cross was appropriate, not allowing her to correct or explain anything. I could have just put it to her that it was ridiculous to suggest the door would be opened to strangers and then go to the jury with that and the contradictions. I won’t make the same mistake again.

It’s no surprise when you consider the above factors that Francis Wellman, in his classic text The Art of Cross-Examination, has a whole chapter on what he

The obvious danger of “gilding the lily,” as Lawrence Dowdall called it, is that the witness will come back, sometimes from the dead

calls the silent cross-examination. He gives an amusing example of how, even in silent mode, a mistake can be made. An advocate by the name of John Philpot Curran is reported to have said to a witness as he sat down: “There is no use asking you questions, for I see the villain in your face” – to which came the response: “Do you sir? I never knew before that my face was a looking-glass.”

Knowing when to stop

The sister error of the unnecessary cross-examination is the unnecessarily long cross-examination. There is real danger in continuing once an important concession is made or a witness has already been rendered incredible. It’s in this area that I believe I recently had something of a eureka moment. The obvious danger of “gilding the lily”, as Lawrence Dowdall called it, is that the witness will come back, sometimes from the dead.

My favourite example from the book Get Me Dowdall is the one the author gives about his own cross-examination of a child witness. He asked the young boy concerned if he had discussed the case with his father, and the boy said yes. He asked if they had discussed what he would say in court, and again the boy said yes. He asks if his father had told him what to say, and the boy again said yes. Instead of sitting down, he ploughed on and asked: “What did your father tell you to say?”, which produced the unfortunate reply: “Well he told me to stand up, to speak up and to tell the truth.”

Despite knowledge of this and the many other examples given in various books on advocacy, I only really learned once it had happened to me. I was cross-examining a woman about her apparently overly certain identification of the driver of a car driven dangerously and at high speed. She conceded that she had never before seen the person she identified. She accepted she only had a split second to see his face because of the speed. She confirmed she could say nothing about the man’s height or build because she could only see him from the shoulders up. She agreed that the circumstances surrounding her identification were far from ideal.

Notwithstanding this, like a buffoon I had to continue, and I put it to her that it was impossible to be certain in those circumstances. Retribution was swift when she announced: “Well you see, I have been a professional make-up artist for 25 years. In fact I teach make-up artistry at a local college and I have a particular interest in the structure of people’s faces. The face I see in the dock belongs to the man who was driving that car.” That shut me up, sadly for my client, one question too late.

But there is a second, more subtle danger in carrying on once a witness has made concessions or has given incredible or unreliable evidence. Some counsel seem not to be satisfied until the witness has been massacred. The cross-examination becomes a demonstration of how much smarter the interrogator is than the witness. The problem is that, when the jury retire to consider their verdict, there is a danger they won’t reject the witness’s evidence, because they take the view that no one could stand up to such a cross-examination. Subconsciously, they might also begin to empathise with the witness, who has become the unfortunate underdog. It seems to me that this kind of cross-examination unwittingly reduces the effect of the damage done. I’m bolstered in the belief that I’m right about this by the fact that the very best just don’t continue unnecessarily. They resist the temptation to show off and, if my observations are anything to go by, they get better results.

You occasionally see young solicitors about to start a trial with a notepad full of questions they intend to ask. In fact, one of the young solicitors I witnessed doing that was me. It’s ironic that a notepad with a list of things not to ask would perhaps be more useful.

Robert Mitchell is senior partner with Tod & Mitchell, Paisley

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