CROSS EXAMINATION OF WITNESSES

CROSS EXAMINATION OF WITNESSES

1)      What is cross examination?

2)      The Statutory basis of cross examination

3)      The Techniques to be employed.

4)      A Good  Cross examination.

5)      Preparation of Cross examination.

6)       Desmond Peter’s case- Skit.

CROSS EXAMINATION

Cross examination is the questioning of a witness by the adverse party. It is a right not a privilege and if a person is denied the right, the denial can vitiate the proceedings.

 The aim of cross-examination is to disqualify the case of the adverse party and try to obtain favourable admissions from the witness.  Cross examination need not be confined to matters raised in the examination in chief.  A witness may for instance be asked questions to test his or her accuracy, veracity or credibility.  They may also be asked questions to discover who they are and what their station in life is, all one is seeking to do is to discredit the witness.  Annoying questions can be asked and it is up to the court to exercise discretion if they are unnecessarily offensive if they go more than to prove the matter.

Section 145 - lists cross examination as one of the three methods of examining witnesse.

Section 154 – leading questions may be asked.  If a question is asked of a witness in cross examination which relates solely to the credit of the witness, the court has a discretion to compel or not to compel the witness to answer the question, the court decide whether a witness should answer a question that relates primarily to their credit this is provided for in Section 157  in exercising the discretion to compel or not to compel, the court weighs the extent to which the imputation casts on a person’s credit is proximate to the suit.

Section 163 gives ways of impeaching the credit of a witness in cross examination.  You call the witness to testify to the unworthiness of credit of a particular witness. You can also call proof that a witness has been bribed or that the witness has accepted the offer of a bribe or any other corrupt inducement to give evidence.  You could also impeach by proving former statements oral or written made by the witness which are inconsistent with any part of the witnesses evidence. 

In cross-examining, there is no specific method of operation.  It depends on the witness you are dealing with. 

Every question should fulfill a substantive, technical or emotional role:

Substantive: question resulting in testimony or facts related specifically to the crime charged.

Technical: questions must be technically legal under the jurisdiction's rules of evidence; question should be phrased carefully to elicit the desired response.

Emotional: questions should always have an emotional impact on the fact finder; the emotional impact may stem from the substantive nature of the question or how the question was presented by the attorney.

Cross-examination is a targeted attack on the prosecutor's theory of the case. The focus should be on the attorney, leading the witness to answer the questions to support the defense's theory. During cross-examination the defense attorney seeks to persuade the jury that the witness' testimony is:

1. inconsistent with other testimony or evidence
2. biased against the defendant
3. the result of a witness' personal motive
4. demonstrates that the witness (if a co-defendant) had the opportunity to commit the crime
5. illustrates the witness' lack of knowledge of the facts and the evidence, or
6. shows the witness' inability to see, hear, perceive, and observe important parts of the incident

THE STATUTORY BASIS OF CROSS EXAMINATION

1)      The Constitution of Kenya, 2010 under article 50 (2) (k) states that, "Every accused person has the right to a fair trial which includes the right to adduce and challenge evidence.

2)      The Evidence Act, Cap 80, Laws of Kenya gives guidelines on cross-examination

Section 151-166 of the Act

3)      Criminal Procedure Code, Cap 75 Laws of Kenya (Section 302) states that, "a witness called for the  prosecution shall be subject to cross examination by the accused person or his advocate , and to re-examination by the advocate for the prosecution.

 

TECHNIQUES TO BE EMPLOYED

1)      (1) The most important facts to bring out on cross examination are facts that help you prove your case:

Favourable testimony on a contested issue. Occasionally, a witness called by your opponent to testify against you on one issue will possess significant information you need to help prove a contested issue. If the favourable testimony was mentioned on direct, you can reemphasize it on cross. If the matter was avoided, then you should bring it up on cross-examination unless the topic cannot be raised because of limited scope rules.

Testimony corroborating your main witnesses. It often will be possible to elicit testimony on cross-examination that enhances the credibility of your witnesses by corroborating parts of their testimony. The possibilities are endless. It can be as simple as eliciting testimony that your witness was present at the scene, or as complex as bringing out evidence of the truthful character of one of your witnesses. The most fruitful line of inquiry is likely to concern the opportunity for your own witnesses to observe the events.

An adverse witness, especially one who uses a diagram of the scene to aid his or her direct examination, always should be able to corroborate that there would have been a good line of sight from another location. Using opposing witnesses to corroborate the actions of your client also is important. For example, if opposing witnesses saw your client trying to avoid an accident, rendering assistance to the victim, or driving safely just before it occurred, or if they overheard your client's explanation of the events, you should bring out these facts.

Testimony consistent with your theory of the case. Rarely are more than a few issues really contested in a trial. The controversy usually boils down to a few disputed facts. Even if nothing else is possible on cross-examination, you always can elicit testimony about those uncontroverted facts that form part of your theory of the event

 (2) If the witness has hurt you, you will also want to impeach the witness's credibility.

The witness has a personal motive to testify falsely based on bias, prejudice, or interest. The witness has previously been convicted of a crime, which shows the witness to be the type of person who would lie. Prior inconsistent statements may indicate that the witness has lied on one occasion. Prior inconsistent statements cast doubt on how well the witness is able to remember the events.

Inability to recall collateral details of similar importance may cast doubt on the reliability of a witness's memory. For this kind of cross-examination to be successful, the facts forgotten must be of equal importance to the facts remembered. If a witness claims to remember a startling event ("I saw the defendant pull a gun and shoot two people."), it probably will be a waste of time to ask if the witness remembers what other people were doing.

Bring out testimony that is impossible or inconsistent with common sense (but don't confront the witness about it).

Establish inconsistencies with other, more credible, witnesses.

 

(2) Avoid high-risk topics.

a) Safe topics are those where you have a reason to believe that the witness will give a favourable answer and you have the ability to refute a bad answer:

You are asking for information the witness has previously given in a statement or deposition that would be admissible as a prior inconsistent statement if the witness testifies differently.
You are asking about information the witness should know which is also contained in admissible exhibits, such as photographs or records of criminal convictions.
You are asking about information the witness should know that other more credible witnesses will testify to.

b.) Medium-safety topics are those where the nature of the case raises a likelihood that the witness will give favourable testimony, but you have no direct way to refute a bad answer. Use them cautiously.
You are asking for facts consistent with human experience where an unfavourable answer would contradict common sense.
You are asking the witness about facts in situations in which the witness assumes that an independent refutation witness is available.
You want the witness to confirm something implied in a prior statement, but the witness has not previously been asked directly about it.
You are seeking to prove that something did not happen because the witness says nothing about it in an otherwise detailed prior statement. For example, if a police officer's accident investigation report is silent on whether your client had been drinking, there is likelihood that the officer will admit that there was no evidence of intoxication. Common sense tells us that a police officer would have reported intoxication.

c.) High risk topics are those where you engage in wishful thinking. Circumstances suggest that a witness might know something relevant, but the witness has never said anything one way or the other. Thus, you have no solid basis to believe the witness's testimony will actually help you, but the witness also has never explicitly said anything to the contrary, so (you think) maybe the witness will unexpectedly provide favourable evidence.

DO'S AND DONT'S DURING CROSS EXAMINATION

What does a good cross-examination question look like?

Leading Questions may be asked

Simple and brief

Non-argumentative. Ask about facts, not conclusions.

Use the witness's own words whenever possible.

Break your topics down into the smallest possible units, and ask about each one separately.

Ask only one fact per question.

Do not repeat damaging direct examination.

Don't ask the witness to explain an answer.

Keep your objective hidden.

Listen to the answers carefully.

 

Dont's.

Do not harass the witness.

Do not allow the witness to explain the answers.

Do not get baited your opponent.

Never ask a question unless you are sure of the facts.

 

 PREPARING TO CROSS-EXAMINE.

Assemble the file before trial. You should have with you in court, in one file, all the necessary documents for cross-examining the witness:

 1) your written cross-examination questions;

 2) all prior statements, depositions, or other writings of the witness that could be used to impeach inconsistent trial testimony;

 3) any exhibits or certified copies of convictions you may want to introduce.

Listen to the direct examination. Never assume a witness will testify in exactly the same way at trial as the witness did in a deposition. Witnesses occasionally will say extraordinary things or may open the door to previously inadmissible evidence that you may miss if your attention is focused elsewhere.

Decide whether to abandon any planned questions. Based on the direct examination, you may face a decision whether to forgo questions because they were covered on the direct examination. Generally, of course, you should proceed with your planned cross-examination. Repetition of favorable evidence is a good idea.

 

 

However, in three situations you may choose to forgo a line of questions:

ü  You may have to drop some topics because your opponent limits the scope of the direct examination;

ü   You may decide to forgo impeachment if the impeaching effect of some prior act is explained away;

ü  The witness may unexpectedly put evidence in a more favorable light than you expected, and might retract it or dilute it if you repeat the question on cross-examination.

Decide whether to impeach by prior inconsistent statement. Obviously, you cannot know in advance whether a witness will give direct testimony inconsistent with prior statements. Listen during direct examination, and decide whether it is worth impeaching any inconsistencies. In general, the only statements you are concerned about are those where the witness changes from favorable to unfavorable testimony. If the witness gives inconsistent statements on unimportant issues, you probably should forgo impeachment, unless you can string together a lot of small inconsistencies.

 

 Difficult or evasive witnesses.

Ask the witness to limit his or her answers to "Yes" or "No"

Move to strike volunteered or evasive portions of the testimony

Ask the judge to instruct the witness to limit his or her answers to "Yes" or "No"

If a witness evades your question, repeat the question or have it read back.