The Art and Plan of Cross-Examination

Patrick J Ducharme

Cross-examination is a treacherous process, loaded with danger, as so many others have already eloquently stated. 2 Indeed, we hear, read and see so much about what decisive effect cross-examination can have in a borderline case that perhaps we create, quite unintentionally, a most undesirable effect: the paralyzing fear of failure. I hope you will humour me a while today; I want to try to alleviate the fear.

To that end, I begin with this shaping thesis: cross-examination can be effective, even easy, if only the examiner will follow a few simple rules. In advancing this view I wish to make clear that I am not referring to what is sometimes called “friendly” cross-examination, the situation in which the examiner questions an adverse party whose testimony is compatible with or
sympathetic to the side represented by the cross-examiner. My thesis is meant to apply in the case of witnesses who are “unfriendly,” or opposed to the position advocated by the cross-examiner. I have in mind, in other words, cross-examination which aims to undermine, discredit or impeach the recipient.

The technique I propose requires acceptance of two pre-conditions.
The first is a commitment to abandon the notion that cross-examination has to be “won,” that the ground must shake beneath the feet of the battered, beaten witness rendering him a withering mass of worthless protoplasm. Rarely does a single question or series of questions lay waste the victim or render him
unworthy of any credit.

Good cross-examination proceeds from more modest and realistic expectations. Good cross-examination is an instrument for communicating to the judge or jury with candour, clarity and concision. There is the key to the method: cross-examination as an aid to communication between the examiner and the trier of fact. Once this notion is grasped, fear falls away because there no longer exists any need to feel that the witness has to be vanquished or
pilloried. Instead, the cross-examiner uses the occasion to tell a story, the cross-examiner’s version of the narrative.

The second prerequisite for the success of the method is the eschewing of the notion that cross-examination succeeds only when the examiner elicits the desired answer, the answer the examiner most wants or expects to hear. No. It is better to think of the cross-examination as simply a tool, a device, to reveal an answer, not any answer, but an answer consistent with the examiner’s theory of the case. The key here is that the answer elicited in cross-examination is
framed or determined by the examiner well before the trial. At some point in the preparation stage the advocate must be able to articulate why her client should win. She should be able to state clearly, simply, and directly what happened in the case and why. Good cross-examination will constitute a reaffirmation and a reiteration of her understanding of the case.

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The Art and Plan of Cross-Examination, by Patrick J Ducharme