Court Trials & Appeal Courts
7. Cross-Examination of Witness
Firm / Chambers:
Last updated: 18 Jul 2015
- The next step in a court trial is the cross-examination of the first prosecution or plaintiff witness by the defendant or their lawyer.
- Cross-examination is the questioning of an opponent’s witness and testing their evidence in an attempt to disprove it or discredit the witness.
- Leading questions are allowed during cross-examination.
- The aims of cross-examination by a defendant or their lawyer are:
- to obtain facts and evidence from the opposing witness that are favourable to the defendant’s case;
- to discredit or weaken the evidence that has been given during the examination-in-chief against the defendant; and
- to ‘discredit’ the witness by attacking their credibility if possible.
- There is no point in cross-examining an opponent’s witness if the evidence they gave during their examination-in-chief does no harm to your case.
- There is also no point in cross-examining an opponent witness if you have no chance of disadvantaging your opponent’s case or if you cannot get some advantage to your case.
- If an opponent witness gives devastating evidence-in-chief against your case you should cross-examine them and do your best to limit the damage to your case.
- In some trials the core claim of the prosecution or plaintiff’s case is not in issue. The defence may concede the formation of the contract, the injury to the plaintiff or the killing of the victim. That does not mean there is no dispute. For example:
- in the contract case the defence may be that the contract was performed by both parties until an unforeseen event made further action under the contract impossible;
- in the injury case the defence may argue that the injuries were not very serious and the plaintiff has returned to work thus limiting the damages that might be awarded; and
- in the criminal case the defence may be an argument based on an accident or self-defence.
- Most of the evidence that supports these types of defences will only be obtained by cross-examining the plaintiff or prosecution witnesses.
- It is rare that the evidence of a witness will be completely destroyed by cross-examination. When this does happen usually the witness is proven wrong on a central issue as a result of strong documentary or exhibit evidence that goes against what they said.
- In most cases the aim will be to weaken the evidence of a witness by showing that before giving evidence they said or wrote something different (a ‘prior inconsistent statement’) or that damaging inferences cannot be drawn from what they’ve testified because another possible reason exists for it which they have to concede is entirely plausible.
- There are many different ways an opponent witness can be discredited during cross-examination including:
- if they have previously been convicted of offences involving dishonesty their credibility in the witness box may be called into question;
- perhaps they need to wear glasses in order to function competently yet they were not wearing them when they witnessed the event they referred to;
- the witness may not have heard a relevant conversation that they have given evidence about but were only told about it by someone else; or
- an expert may not have conducted the forensic tests they gave evidence about or they may not have been qualified to give evidence about them.
- Another aim of cross-examination might be to have one witness contradict or undermine the evidence given by another on questions of fact such as what can or cannot be viewed from a certain location.
- The cross-examination must always remain relevant to an issue in the case. This means the elements of the cause of action or the elements of the crime. Lawyers are trained to know what these are and how to cross-examine on them effectively and appropriately.
- Every cross-examination must comply with a long-established practice rule known as ‘the rule in Browne v Dunn.’
- This rule states that you cannot rely on a fact that supports your case unless you have put that fact to all opponent witnesses during cross-examination and given them an opportunity to respond to it;
- If this rule is not carried out the court will assume that the evidence of that witness is not contested and any contradictory evidence will not be admissible later in the trial.
- For example if an opponent’s witness says “I saw the defendant driving a blue car” and you wish to argue that this is a case of mistaken identity because defendant was driving a red car you would need to say to the witness:
- “I put it to you that you did not see the face of the person driving the car;” and
- “I put it to you that the defendant was driving a red car on that day.”
- It does not matter what the witness responds. The importance lies in putting the question. If you do not put these questions to the witness you will not be able to later lead evidence-in-chief from the defendant about the colour of the car they were driving.
- If the witness sticks to their story and you later lead evidence that contradicts them it will be for the judge to assess their credibility and decide whose story is more likely in a civil trial or whether the defendant’s evidence creates a reasonable doubt about a material element in a criminal trial.
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