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Thursday, 14 July 2011

Cross-examining a witness - right?

Simple questions are the best form of questions to ask in chief or cross. There are exceptions, but they're rare.



Given that, it's funny that English and Australian courtrooms often feature long repetitious stanzas of mixed positives and negatives.



Examples



ADVOCATE: You went to the storeroom, didn't you?

WITNESS: Yes.



ADVOCATE: You didn't go anywhere else, did you?

WITNESS: No.




Listening to this pattern of speech with an ear tuned to the courtroom, it is reasonably certain that the witness intended the answer to the first question to be, 'Yes, I went to the storeroom' and the answer to the second, 'No, I didn't go anywhere else.' Remember that witnesses and jurors do not have such ears.



It is possible (and a witness who realises later they have given an undesirable answer may certainly claim) that the intended answers were actually, 'Yes, I didn't go to the storeroom' and, 'No, I did go somewhere else'.



Here are another couple of examples:



ADVOCATE: It isn't the case that sulfur dioxide will readily ignite, is it?

WITNESS: Yes.



ADVOCATE: You are unable to determine the source of the fire, aren't you?

WITNESS: No.




The unnecessary mixture of positive and negative is responsible for making each question more complex than it needs to be. There is a common turn of phrase that helpfully minimises the confusion. To repeat the first example,



ADVOCATE: You went to the storeroom. Right?

WITNESS: Yes.



ADVOCATE: You didn't go anywhere else. Right?

WITNESS: No.




The second question still leaves some room for confusion, but less so. It would be tempting to remove all possibility of mistake and phrase the question as, 'Did you go anywhere else' but that is too open-ended for some styles of cross. The question, 'You went nowhere else. Right?' may be better.



Cross-examination in this form is really stating a proposition and inviting the witness to agree with it. Since that's what is happening there is rarely any point pretending otherwise. It's also possible to remove the question entirely and merely make the statement a question through a rising inflection toward the end of the sentence:



ADVOCATE: Sulfur dioxide will readily ignite?

WITNESS: Yes.



ADVOCATE: You are unable to determine the source of the fire?

WITNESS: No.




This might be the ideal approach. But without any interrogatory words at all it's likely that this style of question will (at least occasionally) encounter the, 'Is that a question?' response from witness or judge. Use of the single word, 'Right?' is an easy way of turning a proposition into a question (avoiding the useless phrase, "I put it to you .."). Use of the word 'Correct?' serves the same purpose.



No doubt some practitioners use long-winded questions in cross-examination to stall for time to think about what they will ask next. The problem with that approach is that it equally gives the witness the opportunity to consider how best to answer. If the questioning has been well-prepared, the pressure should be on the witness answering the questions and not the advocate asking them.

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