Cross-Examination

After the prosecution has finished asking the witness questions, it will be your turn to cross-examine. You do not have the same restrictions as the prosecutor:

  • You may ask leading questions.
  • You may suggest scenarios and ask if they agree or if it is at least possible/plausible/probable.
  • You may ask them to tell their version again in greater detail to see if there are any inconsistencies.
  • You may suggest their memory is not complete or unclear.

The point of cross-examination is to discredit the witness testimony and cast doubt about the evidence. Generally you should ask leading questions to control the witness' answers. Also use brief, directed questions that get to the point quickly. This will display your own competence and credibility.

Credibility

The case most often cited on the matter of credibility is Faryna v. Chorny, [1952] 2 D.L.R. 354 at 356-357 (B.C.C.A):

[T]he appearance of telling the truth is but one of the elements that enter into the evidence of a witness. Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility....The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.... Again a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

In other words, the officer is testifying to what he honestly believes to be true. You must try and force him to answer that perhaps his version of events are unlikely or embellished or just plain mistaken.

Later, when you mount your defence you will have another opportunity to convince the court that your side of the story is more reasonable and more probable. Given the time and place, your version is more likely to have occurred. But cross-examination is not when you do that.

Prepare in Advance

Through disclosure you knew in advance what he would say at trial. You must come prepared with evidence that contradicts his testimony or questions the reliability of what he said.

For example, if he said it was snowing, you would have brought weather reports stating it wasn't. Get him to confirm that yes it was snowing. Later when you start your defence you will repeat that the officer said it was snowing and then introduce "Exhibit A", the weather report which shows it was not snowing.

Or if he said he spotted your silver car in traffic, you can bring car color reports showing silver to be the most popular car color outnumbering other colors by two to one and therefore he picked the wrong silver car. Ask him if he noticed any other silver cars in traffic? If he says he didn't, you can later submit the car color report to show it is statistically highly unlikely for there to be no other silver vehicles. The fact the officer did not see any does not mean they weren't there. It only means he did not see them and likely didn't realize that there was more than one silver vehicle in traffic.

Don't comment or accuse

Your job in cross-examination is to punch holes in his testimony with pointed questions. Your questions must elicit responses that maintain doubt in the justice's mind. Cross-examination is not the time to begin arguing your position. It is your opportunity to ask the witness questions about his testimony. He is recounting what he saw and what he did. Don't make the mistake of asking questions that are not relevant to him.

Know where you are going

The last thing you want to do is ask the officer exploratory questions. You should know the answers before you ask the question. The point of cross-examination it to lead the witness to a point you want them to make for you. A point that will help your defence or discredit their testimony by getting them to contradict themselves.

Leading the witness should be conducted in a casual manner. Avoid questions like "Is it not true that…" or "Isn't it correct that…" Change your style as you ask questions. Vary the way you ask questions and repeat a question in a different way to emphasize the answer that was given.

If the witness is refusing to concede a particular point, don't linger. Approach the point from a different angle if you might be more successful. Otherwise let it go. If you don't have another strategy, let the witness appear stubborn. Don't create a situation where the justice interjects and says "the question has been answered." Know when to stop.

Take baby steps to get there

You have to lead the witness slowly to the conclusion you want.

Example: Have you ever been wrong?

Q.  Is this the first ticket you have written for this offence?

A.  No I've written lots of tickets for this charge.

Q.  And have you ever written a ticket when you did not believe the person committed the offence?

A.  No I wouldn't have written the ticket if I didn't think they should be charged.

Q.  So in every case you believed the person had committed the offense?

A.  Yes absolutely.

Q.  And I guess some of those tickets you wrote were disputed and ended up in court?

A.  Yes but only a few.

Q.  The provincial average is about 15% dispute their tickets. Would you say in your experience that about 15% of the tickets you issued ended up in trial?

A.  I guest so. I don't have hard numbers to give you.

Q.  Just answer yes or no to this. Of the charges that went to trial, was any defendant ever found innocent?

A.  Yes.

You have established that just because the officer believes you committed the charge doesn't mean you did. The witness can be credible and believe he is telling the truth but the facts of a case can prove otherwise.

Use material wisely

If you have weather reports or a radar manual, have them handy when the time is right to use it. If you want the witness to examine something (like a photograph) or read something into the court record, introduce the document as an exhibit first and then ask the justice if you can approach the witness.

"Your worship, I have in my hand the radar manual testing procedures that were provided to me by the Crown. I wish to introduce them as Defense Exhibit A and would like the witness to read a paragraph from them. May I approach the witness?"

Re-examination

After you finish questioning the witness, the prosecutor can conduct a re-examination or redirect. This is when the prosecutor asks the witness questions about the answers he gave to your questions. The prosecutor can ask clarification questions but cannot raise new issues. This is to minimize any damage you caused. Generally the questions will ask the witness to explain his testimony.

If new issues are raised then you also can ask to re-examine the witness as well. But you are limited as the Crown is to questions about the testimony already given.

Resources

The following resources will help you improve your cross-examination skills:

previous pagenext page