Many rules, principles and cues for
effective cross examination have been formulated and adduced by many profound
litigators and legal scholars. In fact,
books and articles written on the subject are by no means scarce. Alexander
Tanford argues that cross examination is primarily a tool for proving one’s
case by eliciting testimony from a witness. It is pertinent to note however
that witnesses would not readily oblige Counsel the needed testimony, as such
Counsel’s cross examination must be strategic to elicit such testimony.
effective cross examination have been formulated and adduced by many profound
litigators and legal scholars. In fact,
books and articles written on the subject are by no means scarce. Alexander
Tanford argues that cross examination is primarily a tool for proving one’s
case by eliciting testimony from a witness. It is pertinent to note however
that witnesses would not readily oblige Counsel the needed testimony, as such
Counsel’s cross examination must be strategic to elicit such testimony.
There are varying purposes of cross
examination depending on the nature of the witness and his/her testimony; to impeach
credibility of the witness, to establishing inconsistencies in witness’
testimony, to reduce the weight of the witness’ testimony- particularly in
reference to expert testimony- and so on. Francis L. Wellman, in his book The
Art of Cross Examination, devotes chapters seriatim to dealing with
different kinds of witnesses.
examination depending on the nature of the witness and his/her testimony; to impeach
credibility of the witness, to establishing inconsistencies in witness’
testimony, to reduce the weight of the witness’ testimony- particularly in
reference to expert testimony- and so on. Francis L. Wellman, in his book The
Art of Cross Examination, devotes chapters seriatim to dealing with
different kinds of witnesses.
There are varying techniques of cross
examination. However, one technique many legal scholars generally deride is the
‘Why’ question- or ‘how come’. Louis Nizer, in his book My Life in Court,
says: ‘One can quickly spot a bad cross-examiner if he asks “why”’, arguing that
the ‘why’ question gives the witness free rein to explain away his conduct. For
instance, a wife asking her husband ‘If your meeting ended at 8:00pm, why did
you get home at 10:30pm? (…how come you got home at 10:30?)’. The husband can
explain himself out and conveniently fill up for the 2 hours 30 minutes gap to
obfuscate his wife from the truth.
examination. However, one technique many legal scholars generally deride is the
‘Why’ question- or ‘how come’. Louis Nizer, in his book My Life in Court,
says: ‘One can quickly spot a bad cross-examiner if he asks “why”’, arguing that
the ‘why’ question gives the witness free rein to explain away his conduct. For
instance, a wife asking her husband ‘If your meeting ended at 8:00pm, why did
you get home at 10:30pm? (…how come you got home at 10:30?)’. The husband can
explain himself out and conveniently fill up for the 2 hours 30 minutes gap to
obfuscate his wife from the truth.
On the other hand, renowned litigator,
Vincent Bugliosi, states that the ‘why’ question is his main technique on cross
examination and wonders why trial lawyers, who need it the most, frown at the
technique. His explanation on the ‘why’ technique is very enlightening and
instructive. Bugliosi admits that real witnesses in court are as elusive as all
hell, and that on the brink of public humiliation, they seem to get their minds
working as fast as Houdini’s- the popular escapologist and illusionist of early
20th century- hands worked in a trunk at the bottom of the Hudson
River. The underlying factor behind this technique then is that if he feels a
witness is lying, he knows that he would not have acted in a given
circumstance, the way a person telling the truth would have acted. He explains
the ‘why’ question technique thus:
Vincent Bugliosi, states that the ‘why’ question is his main technique on cross
examination and wonders why trial lawyers, who need it the most, frown at the
technique. His explanation on the ‘why’ technique is very enlightening and
instructive. Bugliosi admits that real witnesses in court are as elusive as all
hell, and that on the brink of public humiliation, they seem to get their minds
working as fast as Houdini’s- the popular escapologist and illusionist of early
20th century- hands worked in a trunk at the bottom of the Hudson
River. The underlying factor behind this technique then is that if he feels a
witness is lying, he knows that he would not have acted in a given
circumstance, the way a person telling the truth would have acted. He explains
the ‘why’ question technique thus:
First, you elicit answers from the
witness on preliminary matters, answers which when summed up, indicate that he
would be expected to have taken a certain course of action, or act in a certain
way. The witness having committed himself by his answers, you then ask him what
course he in fact took, and follow this up with the ‘why’ question. Note that
while asking the preliminary and subsequent questions, the cross examiner must
ensure to block off all possible escape hatches. For instance, in the scenario
of the wife and husband above, the cross examination could go this way:
witness on preliminary matters, answers which when summed up, indicate that he
would be expected to have taken a certain course of action, or act in a certain
way. The witness having committed himself by his answers, you then ask him what
course he in fact took, and follow this up with the ‘why’ question. Note that
while asking the preliminary and subsequent questions, the cross examiner must
ensure to block off all possible escape hatches. For instance, in the scenario
of the wife and husband above, the cross examination could go this way:
W: Honey, your meetings don’t normally
end late, max by 6pm you are done.
end late, max by 6pm you are done.
H: Yes dear
W: So, what happens when you finish
board meetings very late?
board meetings very late?
H: The company provides the company bus
to convey us, board members, straight to the nearest bus stops to our houses.
to convey us, board members, straight to the nearest bus stops to our houses.
W: And did they provide it tonight?
H: Yes, it brought me straight from the
office to the nearest bus stop. There was so much traffic, hence my lateness.
office to the nearest bus stop. There was so much traffic, hence my lateness.
W: So WHY did Amina, my friend, picture
you with a lady at Swiss Hotel bar by 9:30pm?
you with a lady at Swiss Hotel bar by 9:30pm?
From the above, the wife starts by
asking preliminary questions to elicit answers as to course of conduct expected
of her husband when board meetings end late. She then asked her husband if he
followed that course of conduct to which the husband committed himself to an
answer, and BOOM- the ‘Why’ question. If she had just asked him ‘You said your
meeting ended 8pm, that was why you came home late, why did my friend then
picture you with a lady at swiss hotel bar by 9:30pm?’; he could easily say
‘After the board meeting ended, myself and a colleague had to submit a proposal
to a female client at swiss hotel bar’. His answers might not fully convince
his wife, but if his colleague can corroborate him, he has successfully eluded
his wife.
asking preliminary questions to elicit answers as to course of conduct expected
of her husband when board meetings end late. She then asked her husband if he
followed that course of conduct to which the husband committed himself to an
answer, and BOOM- the ‘Why’ question. If she had just asked him ‘You said your
meeting ended 8pm, that was why you came home late, why did my friend then
picture you with a lady at swiss hotel bar by 9:30pm?’; he could easily say
‘After the board meeting ended, myself and a colleague had to submit a proposal
to a female client at swiss hotel bar’. His answers might not fully convince
his wife, but if his colleague can corroborate him, he has successfully eluded
his wife.
In essence, the ‘Why’ question
technique of cross examination isn’t so ineffective as many lawyers and writers
have, innocuously, painted it to be. It can be a very potent technique provided
you administer it succinctly. The foremost thing to note is that while asking
the preliminary questions, ensure to block off all possible escape hatches, for
just as no magician can pull a rabbit out of the hat when there isn’t any
rabbit in the hat, a witness can’t escape when he has nowhere to go.
technique of cross examination isn’t so ineffective as many lawyers and writers
have, innocuously, painted it to be. It can be a very potent technique provided
you administer it succinctly. The foremost thing to note is that while asking
the preliminary questions, ensure to block off all possible escape hatches, for
just as no magician can pull a rabbit out of the hat when there isn’t any
rabbit in the hat, a witness can’t escape when he has nowhere to go.
References
1.
Tanford
J. Alexander, ‘Keeping Cross-Examination Under Control’ (1994). Articles by
Maurer Faculty. Paper 627 http://www.repository.law.indiana.edu/facpub/627
Tanford
J. Alexander, ‘Keeping Cross-Examination Under Control’ (1994). Articles by
Maurer Faculty. Paper 627 http://www.repository.law.indiana.edu/facpub/627
2.
Francis
L. Wellman, ‘The Art of Cross-Examination’ (1903). London: Macmillan & Co,
Ltd.
Francis
L. Wellman, ‘The Art of Cross-Examination’ (1903). London: Macmillan & Co,
Ltd.
3.
Vincent
Bugliosi, ‘Outrage: The Five Reasons Why O.J Simpson Got Away with Murder’
(1996). W.W. Norton & Company.
Vincent
Bugliosi, ‘Outrage: The Five Reasons Why O.J Simpson Got Away with Murder’
(1996). W.W. Norton & Company.
Izuchukwu
Temilade Nwagbara is a graduate of law from Nigeria’s premier University;
University of Ibadan. He is currently a student of the Nigerian Law School,
Yola Campus. He aims to be a dexterous litigator. His interests include
International Criminal Law and Environmental Law.
Temilade Nwagbara is a graduate of law from Nigeria’s premier University;
University of Ibadan. He is currently a student of the Nigerian Law School,
Yola Campus. He aims to be a dexterous litigator. His interests include
International Criminal Law and Environmental Law.