What is your cross-examination directed at eliciting and proving? – i.e. the existence of Santa Claus.
The aims of cross-examination are these:
(i) To destroy the material parts of the evidence-in-chief – i.e. NASA have found no evidence of the existence of dwellings at the North Pole sufficient to accommodate a colony of Elves that is large enough to manufacture at least one toy for every child in the world – of course not as my expert witness (Mr Kris Kringle of 34th Street New York, New York) has clearly stated in his report, ‘they only exist in the dream world’ – really I thought everyone knew that!;
(ii) To weaken the evidence where it cannot be destroyed – i.e. that reindeer cannot fly – the case that I shall advance on behalf of my Client is that they only fly at night on Christmas Eve;
(iii) To elicit new evidence, helpful to the party cross-examining – i.e. the Christmas albums of Bing Crosby, Frank Sinatra, the great Nat King Cole, Andy Williams, Perry Como, Johnny Mathis; Deano, Rod Stewart, Michael Buble and Cliff – well why not it is Christmas …
(iv) To undermine the witness (or shake his credit) by showing that he cannot be trusted to speak the truth, or that he is deposing (however honestly) to matters of which he has no real knowledge. i.e. I will demonstrate that Frosty the snowman has no peripheral vision whatsoever. I shall also prove that at all material times he was wearing woolen ear muffs.
The ideal to be aimed at is to lead the witness to admit that his evidence was untruthful or mistaken. How do you know that you saw Mummy kissing Santa Claus underneath the mistletoe? [then distract and use as an opportunity to get the witness to prove another fact i.e. that reindeer can fly].
My next question, as you no doubt correctly anticipated [i.e. flatter the witness to disarm], is that outside, the snow is falling, and friends are calling, “yoo-hoo!” – Yes? [then get the witness to gradually agree with you].
There’s a birthday party at the home of Farmer Gray – Yes?
It’ll be the perfect ending of a perfect day?
We’ll be singing the songs we love to sing without a single stop?
At the fireplace while we watch the chestnuts pop, pop, pop, pop?
There’s a happy feeling nothing in the world can buy?
When they pass around the coffee and the pumpkin pie?
It’ll nearly be like a picture print by Currier and Ives?
These wonderful things are the things we remember all through our lives?
Do you hear those sleigh bells jingling, ring-ting-tingling, too?
So reindeer fly?
In most cases, the objective is not so much to destroy the evidence outright, as to weaken it, that is to say to reduce the weight of the evidence and qualify the inferences which might be drawn from it. This objective is particularly important where the evidence is circumstantial, so that its damaging effect depends not so much on what is actually said as on what may be deduced from it. The witness may be induced to admit that other explanations are possible; or relentlessly probing into the details – as in cases where identification is in issue – may show that there is a possibility of a mistake. The eliciting of fresh evidence may lead to a new topic altogether. More often, however, the new evidence simply consists of facts which put a new colour on the evidence in chief. If this is done successfully, the result is not only to help in the building up of one’s case, but also, at the same time, to weaken the other side. Undermining – if successful – destroys the assumptions on which the reliability of the evidence depends. I.E. if Santa doesn’t exist then why was the mince pie invented? [Then extrapolate] How can you be sure that reindeer don’t like heights? After all don’t they bear an uncanny resemblance to mountain goats? – only with big red noses and antlers. Is it a coincidence that they both like carrots? What other possible explanation can there be – reindeer are an elevated species of mountain goat. QED I believe.
It does not follow that because an individual’s evidence is unreliable in some respects it is must also be unreliable in others.’ i.e. just because Gloria Estefan said that ‘all she wanted for Christmas was me’ [NB what she actually said was ‘you’ but that’s not how I heard it], it is not axiomatic that she did not also want a copy of my latest book on Contentious Probate – which incidentally is very reasonably priced at £79.95 and ordering links appear on the Publications page at www.carlislam.co.uk
Cross-examination requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self-control; power to read men’s minds intuitively, to judge their characters by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject-matter itself; an extreme caution; and above all, the instinct to discover the weak point in the witness under examination. One has to deal with a prodigious variety of witnesses testifying under an infinite number of differing circumstances. It involves all shades and complexions of human morals, human passions, and human intelligence. It is a mental duel between counsel and witness. It is absurd to suppose that any witness who has sworn, positively to a certain set of facts, even if he has advertently stretched the truth, is going to be readily induced by a lawyer to alter them and acknowledge his mistake. People as a rule do not reflect upon their meagre opportunities for observing facts, and rarely suspect the frailty of their own powers of observation. They come to court, when summoned as witnesses, prepared to tell what they think they know; and in the beginning they resent an attack upon their story as they would one upon their integrity. If the cross-examiner allows the witness to suspect from his manner toward him at the start, that he distrusts his integrity, he will straighten himself in the witness chair and mentally defy him at once. If, on the other hand, the counsel’s manner is courteous and conciliatory, the witness will soon lose the fear all witnesses have of the cross-examiner, and can almost imperceptibly be induced to enter into a discussion of his testimony in a fair minded spirit, which if the cross-examiner is clever, will soon disclose the weak points in the testimony. By our manner toward a witness we may have in a measure disarmed him, or at least thrown him off his guard, while his memory and conscience are being ransacked by subtle and searching questions, the scope of which will hardly be apparent to himself; but it is only with the matter of our cross-examination that we can hope to destroy him.
Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, and Blitzen – are all professional dancers on ‘Strictly Come Dancing’ [which incidentally was very good this year] – yes?
So you stay in on Saturday nights?
You also stay in on Sunday nights to watch the results show – don’t you!
And yet here you stand today telling us that your field of expertise includes ‘jingle bells’.
Not very likely is it?
In fact you have never been conveyed in a one horse open sleigh have you?
There are three principal techniques for undermining credibility. An advocate may suggest that a witness is:
(i) being dishonest;
(ii) inaccurate or inconsistent; or
Alternatively, the advocate may seek to suggest some combination of (i) to (iii).
In cross-examination an advocate may either:
(i) confront the witness with evidence that is inconsistent with their account;
(ii) insinuate another version of events; or
(iii) probe the witness’s evidence for flaws.
i.e. your childhood hero was Ebenezer Scrooge – was he not?
you worshiped his work ethic – didn’t you.
So you espouse thrift as a core value?
Your friends – if you had any, might call you ‘thrifty’ – is that not so?
Scroogle knew about Tiny Tim – didn’t he! [note I have got the fact at which my question is directed down to only 5 words].
Charity does not feature in your vocabulary – does it?
In the hierarchy of moral values – Scrooge comes first doesn’t he?
Neither of you shed a tear for poor Tiny Tim before the midnight chimes ran out through your empty house – which until then had been as quiet as a mouse. [NB not a moose!].
So why should we believe you when you say that you were visited by the Muppets at midnight on Christmas Eve?
Are you related to Kermie and Miss Piggy? – of course not – your evidence is nothing more than fantasy is it!
Confrontation, as the name indicates, consists of confronting the witness with a great mass of damaging facts which he cannot deny and which are inconsistent with his evidence. It is a destructive technique, but when it fails to destroy it may still succeed in weakening. Probing consists of inquiring thoroughly into the details of the story to discover flaws. It may be used either to weaken or destroy, or open up a lead to something new. Insinuation is a many-sided technique. In essence, it is the building-up of a different version of the evidence-in-chief, by bringing out new facts and possibilities, so that, while helping to establish a positive case in one’s own favour, at the same time it weakens the evidence-in-chief by drawing out its sting. Insinuation may take the form of quietly leading the witness on, little by little: alternatively it may be necessary to drive him. Thus there are two main forms of the technique, gentle insinuation and firm insinuation. The object of undermining is not to break down the evidence by inquiring into the facts, but to take away the foundations of the evidence by showing that either (i) the witness does not know what he is talking about, or (ii) if he does know the truth, he cannot be trusted to tell it.
Just as a party must in cross-examination challenge evidence of fact given in chief by a lay witness which is not accepted, so the opinions of an expert must be challenged if they are to be disputed. The purpose of cross-examination is to:
(i) elicit support for your own case, and to weaken your opponent’s case; and
(ii) put your client’s case (including as to the fact or content of documents) to the witness to afford the witness the opportunity to respond to it.
i.e. Santa Claus is also known by other names isn’t he?: for Santa anoraks please visit: https://www.wordhippo.com/what-is/the-meaning-of/swahili-word-106819fed9cd37eab541002dcf4e23899c833f98.html
[Although in Swahili Santa Claus means Santa Claus!].
The evidence is therefore overwhelming and without doubt points to only one conclusion – namely that there is a Santa Claus.
Effective cross-examination of an expert is no different than of any other witness: you must have a sound analytical approach to the witness so that you can determine whether to cross-examine and, if so, how to organize and execute the cross-examination to carry out realistically attainable goals. This approach involves the following basic considerations.
- Should you cross-examine? Not every witness needs to be cross-examined. If the expert has not hurt you, or if you have no effective points to make, or your own experts have been more persuasive, consider not cross-examining.
- How should the cross-examination be organized? All cross-examinations have two possible basic purposes: eliciting favourable testimony, and conducting a destructive cross. Eliciting favourable testimony ordinarily comes before a destructive cross. If the expert has substantially helped you by agreeing to helpful facts, consider not attempting a destructive cross at all, although you have destructive ammunition.
- Effective cross-examinations have a structure that starts strong, and keeps it simple. They maintain control over the witness by asking simple, leading questions and stop when the point is made.
- What favourable information can you elicit? Did the witness say things on direct that you can have her repeat on cross? Can the witness admit facts not yet mentioned that support your case? What must the witness admit that helps?
- What discrediting or destructive cross-examination can you do? Are the witness’s perception, memory, or communication skills vulnerable? Can the witness be impeached? Can you expose the witness’s bias, interest, or motive? Has she made prior inconsistent statements? Can the witness be impeached by a treatise?
A good approach to any cross-examination is to ask yourself: what will I say about this witness in closing arguments? Planning the cross-examination is then a matter of determining what facts you can realistically make the witness admit during cross-examination that support your planned closing argument.
There are besides, two rules of practice, firmly established in British courts, which must be complied with. The first is that the witness must be cross-examined on all material facts which are disputed. Otherwise the court will take it that his evidence is not contested. The second rule is that an advocate, in cross-examining must put to the witness the case he is going to set up, so far as it lies within the witness’s knowledge; such cross-examination is a necessary preliminary to the calling of contradictory evidence. A real artist will comply with the rule that he must challenge the adverse evidence not in any perfunctory and formal manner, but by using all the resources of his technique to weaken, undermine or destroy it. Likewise, instead of formally putting his case to obtain denials, he will try to insinuate it and build it up out of the witness’s own mouth. Sometimes of course, there is no scope for anything but a formal challenge.
You better watch out
You better not cry
You better not pout
I’m telling you why
Santa Claus is coming to town
He’s making a list,
Checking it twice,
Gonna find out who’s naughty or nice.
He sees you when you’re sleeping
He knows when you’re awake
He knows if you’ve been bad or good
So be good for goodness sake
With little tin horns, little toy drums
Rooty toot toots and rummy tum tums
Santa Claus is coming to town
And curly head dolls that toddle and coo
Elephants, boats, and kiddie cars too
Santa Claus is comin’ to town
Then kids in Girls and Boy land will have a jubilee
They’re gonna build a Toyland town
all around the Christmas tree
So! You better watch out, you better not cry
Better not pout, I’m telling you why
Santa Claus is comin’ to town
[Then throw in a handful of latin phrases – whilst looking meek as if praying for the salvation of the witness’ soul]
En grege relicto
Humiles ad cunas,
Vocati pastores adproperant,
Et nos ovanti,
In general, if wishing to contest the opinion of an expert being called by our opponent, we can either contest the factual basis of the opinion, or we can contest the opinion itself. If the factual basis of the opinion is disputed, then we should be able to get the witness to agree in cross-examination that if the facts were as we contend, then his or her opinion would be different. If it is the opinion which we are contesting, on the other hand, then we will probably need to call our own expert witness.
There are six critical questions we can ask about experts:
- Expertise questions: How credible is E as an expert source?
- Field question: Is E an expert in the field that A is in?
- Opinion question: What did E assert that implies A?
- Trustworthiness question: Is E personally reliable as a source?
- Consistency question: Is A consistent with what other experts assert?
- Backup evidence question: Is E’s assertion based on evidence?
The expert’s possession of special expertise or knowledge is obviously the main foundational fact for expert opinion evidence; but it is not sufficient to prove some expertise at large. The expert witness must also be shown to be an expert in the field to which the issue about which they have been called to give evidence belongs.
i.e. I notice that your CV does not mention ‘walking in the winter wonder-land.’
You live in a picturesque chocolatebox village don’t you?
You must be very content?
So how do you know that Santa Clause ‘is not coming to town’?
An expert may be:
(i) challenged as to credit in relation to his opinion as he may in respect of facts;
(ii) asked to justify or deny particular opinions expressed on other occasions (including evidence given in similar cases) to cast doubt upon the opinions he has expressed in the present case;
(iii) asked about his attitude to the parties, i.e. if it is suggested that he is biased; and
(iv) questioned about whether he is or was not in a physical or mental state to express a proper opinion.
When cross-examining an expert witness the advocate’s aims specifically include:
(a) limiting the witness’s apparent expertise. Narrow the extent of his or her expertise/experience by showing that it is not directly applicable to the case in question or, perhaps, by contrasting it to the experience of your expert;
(b) showing that the witness has had less involvement/contact with the case than your expert;
(c) showing your knowledge of the expert’s subject. Using your knowledge of the technical terms involved or the way in which any tests were carried out, the expert will be less inclined to avoid your questions. Contrast this approach with the way you may deal with an ordinary witness of fact by simplifying technical terms;
(d) inviting the witness to define technical terms and sometimes in highly complex matters it may be necessary to invite the expert to use common language;
(e) challenging his or her methods, for example showing that there were other tests that the expert could/should have carried out that might have produced a different result. Remember to check that the expert’s facts, calculations and methods do actually produce the results set out in his or her report and, if they do not, challenge the expert as this may undermine the confidence and credibility of the expert’s evidence;
(f) inviting the witness to agree with the propositions that form the basis of your expert’s opinion – he or she is unlikely to disagree with everything your expert says, and you should know from your own expert those areas that are in dispute. Remember to ‘put your case’ to the expert by inviting him or her to deal with your expert’s methods/opinions/conclusions;
(g) inviting the witness to agree that, in his or her field, legitimate differences of opinion frequently occur between qualified experts. This shows that the witness is not infallible and that his or her evidence is ‘opinion’ only; and
(h) using hypothetical facts to test the strength of the expert’s opinion. Testing whether a different interpretation of the same facts or a slight change in those facts would affect the expert’s opinion.
Paragraph 5 of PD 35 provides,
Cross-examination of experts on the contents of their instructions will not be allowed unless the court permits it (or unless the party who gave the instructions consents). Before it gives permission the court must be satisfied that there are reasonable grounds to consider that the statement in the report of the substance of the instructions is inaccurate or incomplete. If the court is so satisfied, it will allow the cross-examination where it appears to be in the interests of justice.
Cross-examination of an expert witness is a hazardous undertaking. A witness under cross-examination does not want to agree with you. He will fight tooth and nail to confound you. He will misunderstand your questions. He will provide evasive answers. He will try to use your questions as an excuse to repeat the deadly features in his testimony which destroy your case. Unlike TV, a witness has no script which must be followed. He will try everything to wriggle out from under your questions. Every question in cross-examination is an invitation to disaster. It is an opportunity for the witness to hammer you and your case. So your first thought is don’t do it. Always start from the point of view: if I can avoid it, I will.
The advantage of a cross-examiner over even the most prepared witness is that only the cross-examiner knows which questions are going to be put next.
10 cardinal rules:
(i) Always put your case to a witness in so far as it is relevant to that person’s evidence. Failure to do so may damage your case and may result in the witness being recalled.
(ii) Keep your xx to what is absolutely necessary.
(iii) Leading questions are permissible and should be used. Put propositions to a witness. Don’t give them a chance to give equivocal answers. Listen carefully to what they have to say. If a witness avoids answering the question put it again until he/she does.
(iv) Do not ask multiple questions. Keep them short and keep a tight rein on the witness. You should be in charge.
(v) Permissible – forceful/insistent. Impermissible – hectoring/bullying. XX does not mean being cross. Never lose your temper with a witness.
(vi) Let the witness finish his/her answer, before proceeding to the next question. If a damaging answer has been given, pause before proceeding. Silence is golden. Let it sink in.
(vii) Watch the judge’s pen. No matter how good the XX is, if the judge cannot record it, it may be lost. On a long trial, try to get a daily transcript if possible, it is very helpful for closing speeches.
(viii) Never put questions on a false premise. It denudes the XX of its force and makes you look bad/ incompetent/unprepared.
(ix) Never misrepresent a witness’s earlier answer.
(x) Put questions, don’t make speeches/submissions. Don’t clutter the questions with comment – save that for closing.
Turkish delight and chocolate butter beans are only available in the same box as Brazil nuts in December – that is right isn’t it.
Cadbury’s selection boxes with puzzles on the back (including snakes and ladders) only appear in the shops at Christmas time don’t they?
You are not a Sainsbury’s shopper are you?
You have never heard sleigh bells in the snow have you?
In fact you were not even dreaming of a white Christmas when you gave your evidence were you?
Examine your concience.
Can you tell us truthfully whether you have you been naughty or nice this year?
Finally [the five golden rings question!]
Please turn to Bundle A, Tab 4 at page 108 – do you see what I see? – an exhibit as big as a kite? – a receipt marked ‘all items we supply have been certified as complying with Elf and Safety.’
Listen to what I say …
‘on the fifth day of Christmas DHL, who bring goodness and light, delivered –
Five golden rings!
Four calling birds,
Three French hens,
Two turtle doves,
And a partridge in a pear tree?’
What did DHL bring on the 12th day of Christmas?
You don’t know! – then either: (i) your recollection is unreliable; or (ii) [and pause for effect] You don’t believe in Santa Clause?
[Ask out loud the rhetorical question tinged with a hint of sadness for maximum emotional effect] What weight – if any – can be attached to the evidence of such a witness?
My Lord, I bring tidings of comfort and joy.
The only question you have to ask yourself is ‘do I believe?’
I submit that there is only one conclusion which can be reached on the facts in this case – and please think of the children when you deliver your ruling, silver bells, presents on the tree, and Christmastime in the City …
and that is, that Santa Clause does exist, and that he exists in the person of Kris Kringle.
So deck the halls with boughs of holly, strike the harp and join the chorus …
Merry Christmas and a Happy New Year to one and all wherever you may be.
May your days always be merry and bright!
Joyeux Noël et bonne année
Frohe Weihnachten und neues Jahr, Glückliches
Buon Natale e felice anno nuovo
Feliz Navidad, Próspero año y felicidad
This is a work of fiction. Any similarity to actual persons, living or dead, or actual events, is purely coincidental.
The above is for use in training only and please do not attempt this at home either before during or after Christmas Day lunch!
For more! please visit the ‘Advocacy’ page at www.carlislam.co.uk