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19
Dec

Mastering The Art of Cross-examination

Cross-examination plays a crucial role in shaping a Judge’s perceptions on the opponent’s case and the outcome of the case. A good cross-examination requires meticulous preparation, strategic thinking, and an understanding of human psychology. Cross-examination is not merely about asking questions; it is about strategic precision, control, and the art of persuasion. This Article will cover the strategies needed for a robust cross-examination.

  1. Preparation

The genesis of a cross-examination is to understand the facts and the documents thoroughly. While reading the case i.e. the pleadings and the witness statements of the opponent party, it is a must to understand the key points of their defence as well as the crux of your case against the opponent party.

It is common for a witness statement to contain a short introduction of the witness, a narrative of their knowledge to support the opponent’s case, supporting documents (if any) and their conclusion (if any). While reading through the witness statement, it is best if notes are taken to identify any discrepancies on documents produced by both parties and prior statements given by the said witness (if any) to contradict their testimony.

A thorough preparation will help you to expose the weaknesses in the witness’s testimony and the opponent's case.
 

     2. Forming strategies

Upon meticulous preparation, it is a must to form a strategy for cross-examination for each of the witnesses of the opponent. The strategies must differ from one witness to another to avoid the opponent from knowing and understanding your strategy. The strategies can either be to discredit the witness, elicit favourable testimony and introduce a new document/facts. 

The strategies must be to test the witness’s reliability, memory and undermine their credibility. While forming the strategy, do remember to prepare in advance for any objections that may arise from your opponent. This helps you to stay composed throughout the trial.

  1. Trial day

Preparation and formulating strategies comprise only 50% of your hard work. The remaining 50% is the cross-examination itself on the day of the trial.

It is quite common for the advocates to ask leading questions during their cross-examination. This would help them to prevent the witness from straying from the points. It is important to bear in mind that the objective of the cross-examination is to break the testimony of the witness and to create a doubt on his/her credibility. In doing so, several approaches can be taken as follows:-

  1. The questions must be related to the crux or important points of your case

  • The witness may have some explanations as to why it happened and how it happened. It is your duty to bring him/her back to the important points in your case to challenge his/her testimony.

  • In the case of Teong Mong Peng v. R.E.A.L Education Group Sdn Bhd, the Industrial Court at paragraph 41 adopted the cross-examination of the Claimant on the main point, i.e. whether the Claimant copied her email to the non-management staff. The crux of the Company’s case against the Claimant is that she had copied her response email to the non-management staff which was agreed upon by her during her cross-examination.

  1. Ask open ended questions if necessary

  • Sometimes asking open ended questions may make the witness break the barrier he has built. This may allow him to open up to us by giving some narratives or new perspectives. More often, this will give us some new issues or entirely different sets of facts which could then be used against the witness.

  • If the witness goes on with a long winded or unnecessary information, do not be afraid to stop them and ask them how it is relevant to the points they are trying to establish in the Court through their testimony.

      3. Watch the witness’s body language

  • Watch if the witness exhibits any discomfort, confusion, nervousness or shows any signs of evading the questions. Focus on those points to make them drop their shield against you.

  • This eventually will place them in a situation of re-thinking of their own answers and changing their previous testimony which help to challenge their credibility 

  • In the event the witness tries to outsmart you, do remain calm and test his testimony with caution and question whether he/she has personal knowledge about the facts contained in his/her witness statement and challenge him/her on documentary proof of the same.

Remember, cross-examination is not about scoring points but about creating doubt, highlighting contradictions, and helping the Judge to see the flaws in the opposing party’s arguments. Be that as it may, practice makes perfect. Hence, with practice and patience, you can master the art of cross-examination.

 

By: Sujatha Selliah

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