Howard, Dan --- "Reflections on the art and technique of cross-examination" [2015] PrecedentAULA 6; (2015) 126 Precedent 19

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REFLECTIONS ON THE ART AND TECHNIQUE OF CROSS-EXAMINATION

By Dan Howard SC

In his classic exposition, The Technique of Advocacy,^[1] John Munkman quotes Viscount Maugham who, in his book, The Tichborne Case, wrote:

‘Many a counsel has risen to his feet wishing that the system of cross-examination had never been invented. He must ask something, but what? Many counsel content themselves with asking over and over again a few of the questions which have already been asked, and then sitting down, avoiding if possible a sigh of relief.’ ^[2]

One still sees this kind of desultory performance in court, but it is, I believe, becoming less common with the resurgence of formal advocacy and practical legal training during the past 20 years.

It is undoubtedly true that more cases are won by good examination-in-chief than by good cross-examination. However, cross-examination can be vitally important and, if badly done, has the potential to snatch defeat from the jaws of victory.

DO YOU NEED TO CROSS-EXAMINE?

It is not always necessary, of course, to cross-examine a witness called by the other side. Their evidence may be helpful to your case, or do it no harm, and cross-examining may simply afford the witness another opportunity to say something damaging to your case. Sometimes a firm ‘no questions’ carries with it the strong implication that the witness has done no damage to your case. But it is important to anticipate in advance whether you will need to cross-examine a witness and, if you do, you must plan the cross-examination and reflect upon the issues you need to focus on.

LESSONS FROM A GREAT CROSS-EXAMINER

When I was a law student over four decades ago, I was fortunate to know the late Sir Jack Cassidy QC, who was a famous Sydney silk and legendary cross-examiner.^[3] He and Lady Cassidy were close friends of my parents and he was kind enough to take an interest in my plans for a career in the law.

In those days, unlike now, there were still many leading barristers in Sydney who, like Sir Jack, could fairly be called a ‘generalist’ in the sense that they were able to deploy exceptional legal talents and excel in just about any area of legal practice. Sir Jack was a talented performer in any level of court in criminal law, defamation, commercial law and many other areas as well. He represented many well-known and colorful identities, including Sir Frank Packer and the famous aviator Sir Charles Kingsford-Smith. At one stage, he may have been a contender for the Guinness Book of Records for making a closing address that lasted for 72 days (in the American Flange v Rheem litigation in 1962). He was a larger than life character who, when getting about the city, often wore a deerstalker hat. He was known to be partial to champagne, and acquired the nickname ‘Champagne Jack’ after a half-empty bottle that he had re-corked and stowed in his bag in the courtroom, could no longer withhold the mounting gaseous pressure within and expelled the cork with a loud ‘pop’, much to his chagrin and the astonishment of the presiding judge.

My most vivid recollection about Sir Jack was his handwriting. Once, when I asked him for a reference to assist me in my job-hunting for hard-to-find articles of clerkship, he very obligingly invited me to his chambers in Phillip Street and scrawled out a reference for me on his letterhead. Like a doctor’s prescription, it was almost entirely illegible, although with time and patience, one could decipher a few helpful words that he had written, like ‘good family’, ‘unfailingly’ and ‘diligent’, and thus obtain at least a general sense of what he had said about me. However, on a later occasion, when I was a guest of the Cassidys for a few days, I observed Sir Jack at his desk in his study one evening, writing in a high-quality, hardbound foolscap notebook. He was concentrating deeply and I ventured to interrupt him and asked him what he was doing. He replied, “I’m preparing my cross-examination for tomorrow.” I looked over his shoulder at the notebook, and was astonished to see that the handwriting that he had used for this purpose was quite perfect, clearly legible and executed in a beautiful and firm cursive that the most fastidious scribe would have been proud of. Not only was the importance that Sir Jack gave to this preparation emphatically and eloquently manifest in the care he had taken with his handwritten notes, but so too was the deep sense of duty and responsibility, almost akin to reverence, that he brought to the task.

In the 1940s, Sir Jack represented the eminent surgeon Sir George Bell, a former President of the Royal Australian College of Surgeons, who had been sued by a patient, Ms Hocking, for alleged negligence in performing a thyroidectomy. The case went all the way to the High Court. ^[4] Ms Hocking alleged that Sir George had left part of a drainage tube in her neck after the operation, which was said to have then passed through her tonsil thence to her stomach and was later excreted. She was the only witness to this outcome, and had not kept the piece of tube alleged to have passed through her in this way. Medical evidence was hotly contested as to whether such an event was possible. Sir Jack would later tell how, in order to prepare for the case on behalf of his eminent client, and for the effective cross-examination of the plaintiff’s expert witnesses, he spent many hours in the observation gallery of an operating theatre, observing surgeons performing numerous thyroidectomies, so that he became thoroughly familiar with precisely what the procedure involved, how drainage tubes were used and handled, and what safety and quality assurance protocols were in place.

PREPARATION AND THE RESPONSIBLE USE OF CROSS-EXAMINATION

From these stories of Sir Jack I learnt two priceless lessons about cross-examination that trump all the others – firstly, the key ingredient for effective cross-examination is thorough and meticulous preparation. There is no other precept that comes close to this in importance. That this is so is proven time and time again in our courtrooms every day. Secondly, cross-examination is an extraordinary privilege granted to legal counsel – to ask leading, probing, difficult and insinuating questions – because it is regarded by our legal system as the best tool for challenging the testimony of a witness in order to ascertain the truth in aid of justice. This is where the ‘reverence’ comes in – cross-examination is not a ‘dark art’ or something you do lightly, off the cuff or half-heartedly. It behooves the cross-examiner to be well prepared, to be fair and to maintain absolute integrity when deploying the considerable power and latitude of questioning that the cross-examiner is permitted to use. The NSW Barristers’ Rules^[5] give expression to the gravity of this responsibility under the headings ‘Responsible Use of Court Process and Privilege’ and ‘Integrity of Evidence’. Loose, careless or irresponsible cross-examination can do a great deal of mischief and can cause injustice. As Viscount Sankey stated:

‘Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness.’^[6]

The valuable rewards that a cross-examiner reaps from thorough preparation include confidence and also that priceless freedom and flexibility of thought that enables the cross-examiner to listen to the answers given and make quick connections about their significance in the context of the evidence in the case. This enables counsel to frame appropriate further questions as well as make assessments about credibility and areas where the witness’s answers appear to be flimsy, weak or tenuous. The cross-examiner thus gains important clues that will inform his or her intuition as to the best way to continue a line of questioning. Sometimes the best way forward is to discontinue a line of questioning and to move on to another topic.

CROSS-EXAMINING SKILLS

The benefits of thorough preparation are well demonstrated in the cross-examination of serial killer, Ivan Milat, at his trial in 1996, during which a most able Crown Prosecutor (Mark Tedeschi QC) gave a fine demonstration of the cross-examiner’s skills.^[7] Included among these skills were:

• Thorough and rigorous preparation, including deep reflection about the evidence, its significance and its inter-connectedness – this can often require time, so time management is important;

• The ability to maintain control of the witness and to keep him or her ‘on track’ and responsive to the questions being asked;

• The importance of ‘setting the tone’ of the cross-examination – this will obviously vary from case to case, witness to witness and topic to topic. In some instances, subtlety, gentleness and indirectness of approach are best used, whereas others require robust confrontation;

• Effective use of ‘timing’ and ‘pace’ of questions;

• Using Munkman’s four classic techniques of ‘probing’, ‘confronting’, ‘insinuating’ and ‘undermining’;^[8]

• Engaging the jury or finder of fact by frequently ‘echoing’ the effect of previous evidence given in the case, by the way in which questions are formulated – for example, by using ‘piggy-back’ questions (where each subsequent question builds upon the answer given to the previous one) which, in combination, have powerful impact;

• Using verbal cues to alert the jury to the significance of a question asked or an answer given and to keep them involved in the process of the development of the evidence through your questioning;

• The ability to extrapolate a dubious answer to its logical conclusion and thereby demonstrate its absurdity;

• The importance of careful ordering of questions and doing the ‘groundwork’ to ensure the ‘closing of all gates’ before confronting the witness with a damaging fact or piece of evidence (for if you do not effectively ‘close the gates’ the witness will undoubtedly find the way out);

• The ability to break complex questions into a series of simpler component parts;

• Taking note and making use of oddities – such as an incongruous answer that is inconsistent with previous testimony or with evidence that has been or can be put before the court;

• Effective use of exhibits, including involving the witness in demonstrations with an exhibit where appropriate;

• The ordering of a cross-examination so as to create clear chapters or topics, and tying them off with a summarising question before moving on to the next topic;

• Keeping the jury or trier of fact interested and involved in the process;

• Presenting the questions and the evidence in a way that effectively tells and demonstrates the case you are seeking to establish;

• Maintaining calm and composure;

• Not arguing with the witness and not answering questions from the witness; and

• Not asking a question you don’t know (or at least have a very firm idea of) the answer to, unless you know that the answer cannot hurt your case.

There are, of course, many other techniques. A helpful ‘checklist’ for effective cross-examination can be found in the Australian Advocacy Institute’s Advocacy Manual,^[9] and one should also keep in mind the ‘Ten Commandments of Cross-examination’ referred to by the late Cornell Professor Irving Younger in a famous 1975 lecture.^[10]

A competent cross-examiner must, of course, have a thorough understanding of the laws of evidence and it is also very helpful to have a good general knowledge. One of the best expositions of the proper use and limits of cross-examination that advocates should read is in the judgment of Mr Justice Heydon in Libke v R,^[11] in which his Honour warns of the mischief of offensive questioning, making comments, compound questions, cutting off answers before they are finished, questions resting on controversial assumptions, and argumentative questions.

The opening questions of a cross-examination are important and will often set the tone, although this can, of course, change as the cross-examination moves along. In the Milat case, Tedeschi began very effectively and firmly established his control of the witness by using a series of questions that he knew all the answers to, as they were based upon irrefutable police surveillance of Ivan Milat in the days leading up to his arrest.

A famous historic example of ‘tone setting’ is the often-cited opening question by Sir Edward Carson KC (who was in possession of a copy of Wilde’s birth certificate) at the commencement of his cross-examination of Oscar Wilde in 1895:^[12]

Carson, Q: You stated that your age was thirty-nine. I think you are over forty. You were born on 16^th October, 1854?

Wilde, A: I have no wish to pose as being young. I am thirty-nine or forty. You have my birth certificate and that settles the matter.

Q: But being born in 1854 makes you more than forty?

A: Ah! Very well.

It was, unfortunately, a disastrous start for Wilde that damaged his credibility from the outset and he never recovered during Carson’s withering onslaught that followed.

CROSS-EXAMINING EXPERTS

It is absolutely key to look carefully at the witness’s CV for it will help you to know the extent and limits of their expertise, and to identify ‘hobby horses’ or any tendency of the expert toward being closed-minded, rigid in their thinking or ‘theory bound’. Such witnesses tend not to have the sort of eclectic, open-minded approach that courts appreciate. I recall one psychologist I cross-examined in a murder trial who, true to their CV, was wedded to the behaviourist school of thought pioneered by psychologist BF Skinner, and who adamantly maintained that every deed or act that a person performs is a direct consequence of his or her past experiences. So much for volition and free will!

You must also identify any shortcomings of the basis upon which the opinion of the expert depends. Shortcomings frequently occur because the material the expert has been provided with in their brief is incomplete. For example, I have seen cases where a forensic psychiatrist called by the defence has been briefed with a transcript of a police interview with the defendant, but has never seen the actual video recording of the interview. Where the expert has only been brought into the matter a few months before the trial, but the interview was recorded on the day of the crime, say two or three years previously, by not seeing the video recording the expert has lost an opportunity to form a more complete picture of the accused’s state of mind at the time of the alleged offence. Another example, from a case I prosecuted, was a psychiatrist called by the defence who, in sentencing proceedings, had not been briefed with police statements of facts relating to prior convictions of the accused (which had been provided to the defence by the Crown). In the absence of this information, the expert’s opinion, about the risk of future violence by the accused, was premised on an incomplete history and was readily challenged.

A good ‘win/win’ question that always produces something helpful for the cross-examiner is to ask the expert witness “What sort of shortcomings were you faced with in your assessment process in this case?” If they are candid they will always admit that the assessment process was less than perfect for one reason or another – for that inevitably is the way of things. If they are not prepared to make such a concession, they are almost certainly being (and will appear to be) less than candid.

It never hurts to probe an expert’s opinion to find out whether it is held strongly or not, and how difficult it was for the expert to arrive at their opinion. Often during questioning of this kind, they will give up clues about, or even concede, weaknesses in their opinion.

It is most important to enlist the help of your own side’s expert to analyse the strengths and weaknesses of the opposing expert’s opinion. Discuss with them their thoughts about the expert’s report, and what questions might need to be asked to expose weaknesses or clarify the opinion. You might even consider asking to confer with the opposing expert (there is no property in witnesses) if they will speak to you. However, be careful not to give away too much of your thinking, which may shield them against the force of your forthcoming cross-examination. This requires some delicacy and tact.

It is important to know the expert’s obligations under the Expert Code of Conduct^[13] and the ethical rules of their particular profession and to ensure that the expert you are cross-examining adheres to these important ethical obligations. They are there to assist the court, not to be partisan. One of the best examples of a good and ethical expert adhering to the code was in the case of an alleged ‘baby-shaking’ manslaughter trial that I prosecuted some years ago. The expert had provided the Crown with a report stating that, in his opinion, the baby could not have died from accidentally falling from a kitchen table, as alleged by the defence, because the table was not high enough nor the baby heavy enough, to have generated sufficient force from the fall to cause the fatal injuries. However, close to midnight on the night before he was due to give his evidence, the expert phoned me at home to advise that he had re-worked his Newtonian calculus, and that it was just possible that the baby could have died in the manner alleged by the defence. This was inevitably fatal to the Crown case and the defence and the trial judge were so advised the following morning, whereupon a verdict of acquittal was entered by direction. This is how the system must work if justice is to be achieved, and it is important to remember that many miscarriages of justice have been caused by bad science masquerading as ‘expert’ evidence.

Dan Howard SC is a barrister; Visiting Professorial Fellow, School of Law, University of Wollongong; Conjoint Associate Professor, School of Psychiatry, University of NSW; and President NSW Mental Health Review Tribunal. EMAIL [e-mail].

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^[1] John Munkman, The Technique of Advocacy, Butterworths, London, 1991, p63.

^[2] Viscount Maugham, The Tichborne Case (Hyperion, 1975) p303.

^[3] See the Australian Dictionary of Biography entry at http://adb.anu.edu.au/biography/cassidy-sir-jack-evelyn-9709.

^[4] See Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430.

^[5] See NSW Barristers’ Rules 59 - 74 available at http://www.nswbar.asn.au/docs/webdocs/rules2.pdf.

^[6] Mechanical and General Inventions Co Ltd v Austin [1935] AC 346 at 359, cited by Heydon J in Libke v The Queen [2007] HCA 30 at [120].

^[7] D Howard, R v Milat – A Case Study in Cross-examination (Lexis Nexis, 2014).

^[8] See John Munkamn, The Technique of Advocacy, Butterworths, London, 1991.

^[9] Australian Advocacy Institute, Advocacy Manual, 2008, p103.

^[10] See http://en.wikipedia.org/wiki/Irving_Younger#The_10_Commandments_of_Cross_Examination.

^[11] Libke v R [2007] HCA 30; (2007) 235 ALR 517.

^[12] See H Montgomery Hyde, The Trial of Oscar Wilde (Notable British Trials Series, W Hodge, 1948).

^[13] This code is set out in Schedule 7 of the Uniform Civil Procedure Rules, 2005, available at http://www.legislation.nsw.gov.au/maintop/view/inforce/subordleg+418+2005+cd+0+N.