The art of cross-examination

It's a powerful tool that can lead to surprises, but only when used with suitable finesse
 
Jan 06, 2009 04:30 AM
Peter Small
Courts Bureau
ALEX TAVSHUNSKY FOR THE TORONTO STAR
Defence lawyer Gary Grill cross-examines David Tarnowski during the November trial of J.S.R., who was accused of murdering Jane Creba.
10 COMMANDMENTS OF THE CROSS

Be brief.

Use short questions, plain words.

Always ask leading questions.

Don't ask a question to which you do not know the answer.

Listen to the witness's answers.

Don't quarrel with the witness.

Don't allow the witness to repeat his or her direct testimony.

Don't permit the witness to explain his or her answers.

Don't ask the "one question too many."

Save the ultimate point of your cross for summation.

 

By the late U.S. law professor Irving Younger

 

 

In the Perry Mason TV series of more than 40 years ago, the famous fictional defence attorney invariably wrung stunning confessions out of hostile witnesses.

His stupendous powers of cross-examination would lead to dramatic "I did it" moments, clearing his client all before the final commercial break.

Such dramatic victories live on in lawyers' dreams but rarely in reality. Cross-examination, if practised properly, however, can be a tool as powerful, if more subtle, say some of its best practitioners.

"It happens virtually daily that you get somebody to say something that's of material importance," says John Struthers, a leading Toronto defence lawyer.

Four years ago, when defending a black man on drug charges, Struthers got a police officer to admit that, in general, he took a driver's appearance into account when forcing him to stop on suspicion of criminal activity. Struthers used this minor admission to hammer the officer with suggestions that he stopped defendant Kevin Khan because of his race. The judge threw out the charges, a landmark "driving while black" acquittal.

Although widely admired in its highest form as an art practised by geniuses, many lawyers believe that cross-examination's principles, at least, can be taught. Larry Pozner, a Denver lawyer and co-author of Cross-Examination: Science and Techniques says any competent lawyer can do a good cross-examination.

"It's not a contest of wills, it's not personality-driven, it is based on thorough preparation," he says.

Although dramatic courtroom scenes are few and far between, there is drama inherent in the process, says the veteran lawyer, who tours North America giving seminars on the subject.

"What happens often, and I would say very often, is the judges or juries say during cross, 'Oh that's interesting. I hadn't heard about that.'"

And there are classic "don'ts" that should be avoided, he says.

Don't let your subject choose the area of discussion. "We would never say to a witness, for example, 'Would you explain?' or 'Why don't you tell me what ...' The open-ended question is dangerous."

Shows of anger have no place. Toughness does. "What you want to do is say to a witness, mentally, `I am focused on you. My attention is on you. We are going to tell the judge the facts and so I will brush aside your evasions. We will get at the truth. Why don't we get to it quicker rather than slower?'"

It's more like using a scalpel than a meat cleaver. There is no place for trickery and the object is to "take a partially honest witness and make them more honest, to bring out more facts, not to conceal facts."

Toronto defence lawyer Heather McArthur once had one of those rare Perry Mason-type moments.

In 2006, she got a witness to dramatically reverse his testimony and admit that her client could not have participated in the fatal beating of a Burlington student.

Her eyes glistening with genuine emotion, she appealed to Lim Keoun to admit that her client Stephen Papadopoulos did not get out of a car to take part in the beating. Keoun reversed his testimony.

The jury acquitted Papadopoulos of first-degree murder deciding he did not directly participate but found him guilty of manslaughter, to which he had already tried to plead guilty.

Good cross-examination is a science more than an art, says McArthur, who has taught classes on it at Osgoode Hall law school.

Some of her principles:

McArthur writes out summaries of what the witness has said in previous statements, rather than relying on a junior lawyer to do it.

That way, if a witness varies from previous evidence, "I am prepared to impeach them."

Defence lawyer Gary Grill used this technique to good effect when he cross-examined star Crown witness David Tarnowski in the trial of J.S.R., accused of murdering Jane Creba. He read back portions of the man's previous statements and testimony, getting him to admit that his memory of the shooting had shifted many times. It was a victory in a losing cause, however, as the jury still convicted his client. Grill intends to appeal.

John Rosen, considered to be one of the best cross-examiners in Canada, is not so certain the skill can be taught. Mainly, it's honed over time and through experience, he says.

He has his own rules.

First, never ask questions that allow you to lose control.

"The second rule is `Small questions elicit small answers,' and what you try (to) do is paint a picture through small brush strokes, so to speak, so the witness doesn't know where you're taking them."

The third rule is to have a purpose. "A lot of lawyers think it's just flapping your jaws and getting answers." But your purpose could be to elicit information the witness hadn't previously revealed, jog their memory or challenge their veracity, he says. "Every witness presents his problems."

For Struthers, cross-examination is about what the lawyer has to say, not what the witness has to say.

In almost all criminal trials you have two competing versions of events. "You have to think, `What is my theory of this case and why is this witness either consistent with it, or how can we show any inconsistencies with my theory are as a result of bias or failure to recall?"

He offers an interesting metaphor. "Basically you're trying to get a very uneven piece of Jell-O into a mould and it has to be your mould as opposed to the Crown's mould."

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