In Trial Cross Examination, this is the stage in a court proceeding, during litigation of a certain case, that a witness’ testimony is tested. The proponent’s narration of facts is placed in a microscopic scrutiny to examine its acid truth. This is done through series of questioning the cross examining counsel propounds to the witness in the stand.
Importance of Cross-Examination
The significance of cross-examination must always be emphasized. It may be considered as equally important as the whole trial process itself. Meaning, it may win or break a case, barring any contingency aside.
The term cross-examination commands respect and even generates fear among seasoned trial lawyers. Certainly, other area of trial work involves as much uncertainty and mystery. How many times, at the conclusion of a direct examination, has the thought flashed through every cross-examiner’s mind: “My God what do I do now?”1
The Art of Cross-Examination
Thus, cross-examination is also considered as the art of uncertainty. You will never know the true value of your intended question until you have confronted your witness. Even then, what you have been intending to ask may not be what you will actually propound, hence, the ambivalence. Mending, mitigating, or turning that uncertainty to your advantage results in art–the art of cross-examination.
Art is a diverse range of (and products of) human activities involving creative imagination to express technical proficiency, beauty, emotional power, or conceptual ideas.2
By definition itself, art is not a mathematical formula. It is a product of continuous evolution of skills which may be applied on a given situation. It is not a fixed connecting block but can be compared to a clay that may be stuffed in a certain mold, in order to adapt its shape.
Cross Examination of Witness
There is a fundamental caveat in cross-examining a witness. You must know when to cross-examine. In short, if there is no need to put a witness to an examination, but for the sake of grand standing only then do not do it, such as those what trial lawyers called “harmless witness”. Rather than complementing your cause, it may, otherwise, damage your case.
However, if the witness during his examination-in-chief materially damage your version of facts, then, you must grill him using your cross-examination skills. Thus:
The basic dictum of cross-examination is, of course, that if the witness had not hurt you, you should leave him alone. Do not cross-examine. Cross examination of a harmless witness can only open the door to an unfavorable testimony that the opposing counsel inadvertently overlooked or could not legally introduce.3
The only exception arises where you are aware of additional facts that the witness has knowledge of but did not mention during his direct examination. However, in such a case, proceed with caution.4
“If you are unable to draw out this facts, dismiss him with contempt. Do not go back over his harmless testimony.4
Likewise, do not make your cross-examination opportunity to be an avenue for clearing an otherwise ambiguous story telling. This is the common pitfall of new lawyers. They tend to ask cross-examination questions that can strengthen rather than destroy the adverse witness’ testimony.
On the other hand, cross-examine the witness who had damaged your side. If you fail to do this, the opposition will probably argue that key testimony went unimpeached.3
You need not cross-examine, however, if you are certain that your own case will irrefutably discredit his testimony. But, even then, it might be desirable to question the witness if only to nail him down on the point or point you intend to contradict.4
Cross Examination Techniques
Techniques in cross-examination are learned through experience. Books and reference materials may serve as guides and source of knowledge. Nonetheless, for actual litigators and law practitioners, experience will be the best teacher.
Here, we will show some points on how to have starting point or reference in testing the would-be testimony of your adverse witness, for example.
These are not strict guides but merely a perspective for you to develop more in relation to the facts of your respective case. These are culled from the works of a seasoned practitioner and judge.5
Harmless Questions
Harmless questions6 are not exactly harmless, although the witness perceives them to be, and here lies their value. A witness is usually on his guard when face-to-face with the cross-examiner.
More often than not, the cross-examiner is out to discredit his testimony, and naturally, he will offer resistance. Therefore, the task of the cross-examiner is to win over the witness.4
He can breach the barrier between him and his witness by asking “harmless” questions. A witness readily answers seemingly innocuous questions because of the perception that they are of small importance, or have no connection to the main issue of the case.4
Mock Trial Example – Harmless Questions
In a Robbery Holdup case,4 Ms. Beau T. Pool took the witness stand and testified, as follows:
“On August 1, 1997 at about 7:00 p. m., while she was on board a passenger jeepney, the accused, Roderick J. Umper, jumped on the jeepney’s platform as it was cruising along Espana St., near P. Noval St., Manila. The accused grabbed her necklace, jumped off the jeepney and ran away. She and her companion, Ms. Susan Palasabat, pursued the accused but failed to catch up with him. They then proceeded to the nearest Police Station to report the incident.7
“A week later, a police officer informed her through a phone call that the suspect had been caught and requested her to go down to the precinct. She quickly identified the suspect. She could not be mistaken as to his identity, because while the accused was standing on the jeepney’s platform on the evening of August 1, 1997, he was staring at her. At that time, she thought he was merely admiring her beauty.8
“The accused denies the charge. His defence is alibi.”4
Question:
In your direct testimony, you said that you were with Susan Palasabat inside the passenger jeepney, did I get you correctly?
Answer:
Yes, sir.
Question:
She is your friend, isn’t she?
Answer:
Yes, sir.
Question:
Not only is she your friend, but she is your best friend, isn’t she?
Answer:
Yes, sir.
Harmless Question:
Since she is your best friend, you were conversing with each other while inside the passenger jeepney, weren’t you?
Answer:
Yes, sir.
Harmless Question:
Did your conversation change from one topic to another?
Answer:
Yes, sir.
Question:
It was at that moment while you were conversing that a man jumped on the platform of the passenger jeepney and stayed there for a while, is that correct?
Answer:
Yes, sir.
Question:
You did not think him to be a robber at that time, did you?
Answer:
Yes, sir.
Question:
And you did not entertain the thought that someone would rob at that time?
Answer:
Yes, sir.
Question:
In short, you did not think something bad would happen to you at that time, am I correct?
Answer:
Yes, sir.
Question:
So, both of you continued conversing with each other, didn’t you?
Answer:
Yes, sir.
Harmless Question:
Sometimes you looked in front of the passenger jeepney to see where you were, am I correct?
Answer:
Yes, sir.
Question:
It was at this time while you were looking in front of the jeepney that the man who was at the platform snatched your necklace, wasn’t it?
Answer:
Yes, sir.
Question:
Then he jumped off and ran away, is that correct?
Answer:
Yes, sir.
Question:
It was the first time that you saw him, was it not?
Answer:
Yes, sir.
Question:
You did not know him before, did you?
Answer:
No, sir.
Harmless Question:
The passenger jeepney that Susan and you were riding on then was full of passengers, wasn’t it?
Answer:
Yes, sir.
Question:
Now, Miss Witness, can you still remember the face of the person in front of you? [“in the jeepney” – supplied]
Answer:
No, sir.
Question:
What about the person seated beside that person?
Answer:
No, sir.
Question:
But they were already passengers before the accused jumped on the platform, weren’t they?
Answer:
Yes, sir.
Question:
And yet you could not recognize them?
Answer:
Yes, sir.
Question:
You say also that after one week, you were informed by a policeman through telephone that the accused was already caught and he requested you to go t the police station, is that correct?
Answer:
Yes, sir.
Harmless Question:
Right after you heard the news, did you not inform Susan Palasabat about that?
Answer:
I informed her.
Question:
You requested her to go with you to the police station, didn’t you?
Answer:
Yes, sir.
Question:
Did she accompany you?
Answer:
Yes, sir.
Question:
Upon reaching the police station, were you able to talk to the policeman who called you up?
Answer:
Yes, sir.
Question:
And he accompanied you to the place where the suspect was at that time?
Answer:
Yes, sir.
Question:
And he told you, “there is the suspect right there,” didn’t he?
Answer:
Yes. sir.
Question:
What was the suspect doing, if any, at the time the policeman said to you, “There is the suspect right there”?
Answer:
The accused was sitting on the bench then.
Question:
He was alone at that time wasn’t he?
Answer:
Yes, sir.
Question:
And the three of you went to the place of you went to the place of the accused?
Answer:
Yes, sir.
Question:
While you were nearing the suspect, you talked with Susan and asked whether the suspect was really the one who snatched your necklace, in order to be sure of the identity of the accused, didn’t you?
Answer:
Yes, sir.
Question:
It was after consulting with her that you pointed to the accused, wasn’t it?
Answer:
Yes, sir.
Question:
So, at first, you were not sure of the identity of the accused until Susan told you?
Answer:
Yes, sir.
[Cross-examination excerpts]9
The witness was unaware of the purpose of the cross-examiner’s questions. To the witness, the questions (e.g. her relation to Susan Palasabat and the topic of their conversation) were insignificant; hence, she answered them readily.10
Unknown to the witness, the cross-examiner had a purpose for every question. The cross-examiner knew exactly where he was taking the witness. He sought to prove:11
1] That the witness and Susan Palasabat were the best of friends, to establish that they must have been engaged in some conversation;
2] That they were, in fact, conversing, to establish that her attention was not on the accused;
3] That the witness had no inkling that the accused intended to rob her, to further establish her inattention to the accused;
4] That she would from time to time look in front to determine what place they were in, to establish that she was indifferent to the presence of the accused and that it was only when he suddenly grabbed her necklace that she took notice of;
5] That she could not recognize the passengers seated in front of her, to establish that much less could she recognize the accused who was standing on the platform;
6] That it was the policeman who first pointed out the accused to her inside the precinct, to establish that it was the policeman who identified the accused and not the complainant.
7] That she consulted first with Susan Palasabat before she pointed out the accused, to show that the complainant was not really sure of the identity of the accused.
[Purpose Excerpts,]12
Asking “harmless” questions is not the same as asking aimless questions. “Harmless” questions have a definite purpose; they point you in a specific direction. They are product of long preparation and hard work.13
Aimless questions, on the other hand, are rudderless boats–they take you nowhere and waste the precious time of the Court.13
- Handbook on Trial Practice, Coronel, 1990 Edition, p. 30[↩]
- Art, Definition[↩]
- Handbook on Trial Practice, Coronel, 1990 Edition, p. 34[↩][↩]
- Ibid.[↩][↩][↩][↩][↩][↩][↩]
- Judge Ceasar A. Casanova[↩]
- Cross-Examination Mirror, J. Casanova, 1999 Edition, pp. 1-7[↩]
- Ibid., pp. 1-2[↩]
- Ibid., p. 2[↩]
- Cross-Examination Mirror, J. Casanova, 1999 Edition, pp.2-5[↩]
- Ibid., p.5[↩]
- Ibid., p. 5[↩]
- Ibid., pp. 5-6[↩]
- Ibid., p. 6[↩][↩]