All Rise! Tips on Cross-examining

If his defence practice has taught him anything, Matthew Holmes says it is how to lose a case. He now offers some tips to gardaí when they are required to cross-examine defendants

One of the best ways to lose a case is to call the client in evidence and open them up to cross examination. In the District Court you may often be called upon to do your own cross examination of a defendant. Here are a couple of the rules of cross examination to help you be more effective.

1. Never ask a question you don’t know the answer to
This is the golden rule of cross examination. If you don’t know the answer to the question you are asking, don’t ask it. Movies have witnesses breaking down on the spot and giving damning answers that break their case wide open. In real life they tend to say something that gives them loads of wiggle room. The only exception to this rule is when any answer the witness gives will help your case. Those questions are few and far between, but they are great whenever they do happen.

2. Only ask leading questions
There are two types of questions, leading questions and non-leading questions. A leading question is one that has the answer in it. For example, “You got to the scene because Darren drove you there, didn’t you?” is a leading question. A non-leading way of asking it is “How did you get to the scene.” Leading questions are great because you are allowed to put words in the witness’s mouth and direct the evidence. Ideally, all leading questions would be met with a ‘yes’ or ‘no’ answer. When it is your own witness you cannot ask leading questions, which makes questioning much less predictable and much more difficult. You can see how with the second version of the question there is a lot of scope for a witness to give an answer you don’t want.

A defence lawyer should object to you asking your own witness leading questions, and you also have the right to object to them asking their own witness leading questions as well. Leading questions are reserved only for preliminary things and cross examination. Because leading questions tend to be answered in a ‘yes’ or ‘no’ way, you can make your cross examination really devastating.

3. Ask only short simple questions
This is one of the most important rules, and probably the one I struggle with most. The longer a question is, the more likely it is to confuse people. Keep questions short and simple. Use a couple of short questions to build up a point rather than one big one.

4. Putting a case to a witness
In Ireland you are obliged to put your case to a witness. This is the biggest difference between our system and the American system. If you look at American cross examination videos on YouTube they always tell you never, ever do this. Here, unfortunately, you have to. Putting a case involves allowing a witness to comment on it. If a witness comes out with something that wasn’t put to you when you were being cross examined, then you are allowed to object to this. That’s usually a pretty strong objection as it looks like the witness may have invented it on the spot. If you want to rely on something and it wasn’t put to a witness, the defence will make hay out of this.

5. Be very careful about a witness’s previous convictions
You have to be very careful if you want to cross examine a witness on their previous convictions. If you do this wrongly you may end up getting your case thrown out. You can rely on a witness’s previous convictions only if they have put their own character, or the character of someone else, into issue. So, if they say they have no convictions for something, and you know they do, then you are free to cross examine on it. Saying a garda is lying is not enough to put their convictions into evidence. Steer clear from this unless you are absolutely sure you can. Even if the hearing court allows you, this could be potentially end up in a judicial review if it is done incorrectly.

Most gardaí are well used to being cross examined. In my experience crossing examining gardaí is usually much harder than cross examining civilians. You might find that you might get a bit more leeway in some cases, but even if you might get away without following these rules, they are always worth following.

Matthew Holmes is a practising Barrister

For full and in-depth coverage, see the current printed edition of Garda Review.