Cross – Examination: Nitty-Gritty And Guide To Effective Questioning

(Being the text of a paper presented at Justice Eno Otu Bar Centre, Judiciary Headquarters, Uyo on the 17^th of September, 2021 on the invitation of the Young Lawyers’ Forum, Uyo Branch) By Ekemini Udim

Introduction:

It gives me great joy to be invited to this gathering by the Executives and Members of the Young Lawyers’ Forum. By the calculation of my age at the Bar, I am no more a young lawyer but I cannot forget my days as a young lawyer. This is the age bracket at the Bar where you face a plenitude of challenges ranging from welfare to a lot of other issues. But it is also the time to perfect your skills and prepare yourself for greater assignments. If you waste your years as a young lawyer, you may have to struggle to find your foot for the remainder of your practice life. This paper is therefore intended to add knowledge to you in the critical area of law practice known as ‘cross-examination.’

Cross-examination has been an integral part of the justice system from time immemorial. During the period before the colonialization of Africa, our forefathers had courts which were presided over by chiefs. In these courts, parties were allowed to state their cases (fair hearing). They were also allowed to ask their adversaries questions (cross-examination), before a verdict was passed in each and every matter. This practice has lived on for generations till date. Thus, in almost every village in Nigeria today, there are village courts where parties are allowed to state their complaints and also allowed to cross-examine their adversaries. This practice was also present in the colonial days. The structure of the courtrooms may have changed from mud houses to concrete buildings but the need to allow the parties tin the interest of justice of cross-examine their adversaries has not changed. Today, cross-examination has grown to become an integral part of the modern justice system. It is indispensable in the administration of justice. It is a global currency used in all courts of law in all democracies across the globe.

What Cross-Examination Entails

As noted above, the art of cross-examination is as old as the discipline of law. It is at the heart of law practice. It is the greatest legal engine invented by man for the discovery of truth. When it is masterfully deployed, it is a potent tool for perforating falsehood. Through cross-examination, exaggerated statements are reduced to their true dimensions. Cross-examination is therefore an indispensable tool in the hands of every trial lawyer.[1]

The Black’s Law Dictionary[2] defines cross-examination as:

‘The questioning of a witness at a trial or hearing by the party opposed to the party who called the witness to testify.’

On its part, the New International Webster’s Comprehensive Dictionary[3] defines cross-examination as:

‘To question anew a witness called by the opposing party for the purpose of testing the reliability of his previous testimony.’

The Oxford Advanced Learner’s Dictionary[4] defines cross-examination as:

‘To question somebody carefully and in a lot of detail about answers he had already given, especially in court.’

Section 214(2) of the Evidence Act, Laws of the Federation of Nigeria, 2011 defines cross-examination as ‘the examination of a witness by a party other than the party who calls him.’ That is to say, the examination of a witness by the opposing party.

The above definitions presuppose that before a witness is cross-examined, such witness must have first testified. Such prior testimony could be oral or in writing. It is what is technically known as examination-in-chief.

Objectives of Cross-Examination

Cross-examination is not a purposeless exercise. It is an exercise with clearly defined objectives. The ultimate objective is the advancement of the case of the cross-examiner by discrediting the case of the opposing party through the mouth(s) of that other party’s own witness(es). For this reason, the cross-examiner must set out at all times, to cross-examine every given witness with a clearly defined objective.

The cross-examiner must know what he wants from each witness and go for it through the masterful deployment of his cross-examination skills.

The objectives of cross-examination can be listed briefly as follows:

1. To discredit a witness by showing from his own mouth that he is unworthy of being believed.
2. To discredit the witness by demonstrating that his evidence is inconsistent with other testimony or to discredit another witness on the same side.
3. To put the case in proper perspective by separating truth from falsehood and adding facts deliberately omitted.
4. To give the court advance notice of the case of the cross-examiner.
5. To obtain admissions or proof of facts advantageous to the case of the cross-examiner.[5]
6. To separate falsehood from truth.
7. To separate hearsay from actual knowledge.
8. To separate opinion from fact.
9. To separate inference from recollection.
10. To discredit the witness by exposing his bias and prejudice.
11. To discredit the witness (mostly expert witness) by exposing his lack of qualification or other deficiencies.
12. To destroy or weaken the judge’s favourable impression of the witness.
13. To establish that the witness is lying on one or more material points.
14. To show through the mouth of the witness that his testimony is improbable.
15. To impeach the witness by showing that he or she has given a contrary statement at another time.

16. To show that a witness has been convicted of a serious crime where there is such record.
17. To reduce exaggerated statements to their true dimensions.

It suffices to note that the above objectives of cross-examination can be distilled from section 223 of the Evidence Act.[6] For purpose of clarity and ease of reference, I take the liberty to reproduce the said section herein below:

When a witness is cross-examined, he may … be asked any question which tends to –

(a)   Test his accuracy, veracity or credibility; or

(b)   Discover who he is and what is his position in life; or

(c)   Shake his credit by injuring his character.

The objectives of cross-examination can also be seen in referring to the statement of Francis Wellman in his book The Art of Cross-Examination.[7] In his words:

If all witnesses had the honesty and intelligence to come forward and scrupulously follow the letter as well as the spirit of the oath to “tell the truth, the whole truth, and nothing but the truth” and if all advocates on either side had the necessary experience, combined with honesty and intelligence and were similarly sworn to develop the whole truth and nothing but the truth, of course there would be no occasion for cross-examination, and the occupation of the cross-examiner would be gone. But as yet, no substitute has ever been found for cross-examination as a means of separating truth from falsehood, and of reducing exaggerated statements to their true dimensions.

Similarly, in discussing the objectives and importance of cross-examination, Cory, J. in the case of R. v. Osolin[8] stated thus:

There can be no question of the importance of cross-examination. It is of essential importance in determining whether a witness is credible. Even with the most honest witnesses cross-examination can provide the means to explore the frailties of the testimony. For example, it can demonstrate a witness’ weakness of sight or hearing. It can establish that the existing weather conditions may have limited the ability of a witness to observe, or that medication taken by the witness would have distorted his vision or hearing. Its importance cannot be denied. It is the ultimate means of demonstrating truth and testing veracity.

On his part, Borins, C.J. in R. v. Rowwbotham (No 5)[9] noted the objectives of cross-examination thus: ‘’The opportunity to cross-examine is an essential safeguard of the accuracy and completeness of testimony. Cross-examination is recognised as fulfilling three basic functions: to shed light on the credibility of the evidence-in-chief; to bring out additional facts related to those elicited in examination-in-chief; and to bring out additional facts which tend to elucidate any issue in the case.’’

Every witness is an editor. He tells you not everything he saw and heard but the part of the story that supports his position in the case. Some witnesses would deliberately keep back vital facts. It is, therefore, imperative for the cross-examiner to make effective use of the opportunity afforded him at cross-examination and extract from the witness, the truth of the facts in issue.

Quite often in courts, some lawyers tend to ask questions without reminding themselves of the objectives of cross-examination. It is not uncommon to see lawyers asking questions to impress the gallery and, in the process, forgetting the real essence of cross-examination. This practice should, as a matter of necessity, be discouraged. The young lawyer should not follow this pattern of cross-examination. It has never won any case in any court of law.

Every lawyer conducting the cross-examination of a witness should remind himself of the reason for the cross-examination. He should know that he has a duty to ‘’tear down’’ (as much as possible) the case of the other side through the mouth of the witness. He should as well use the opportunity of cross-examination to put forward in advance, the case of his client through the mouth of the adversary. There is, for instance, no need asking questions that are too remote and totally unconnected or irrelevant to the facts in issue. A lawyer, who is desirous of winning his case, has no business playing to the gallery and in the process, disregarding the objectives of cross-examination.

The Characteristics of Cross-Examination

1. Cross-examination requires ingenuity on the part of the lawyer.
2. It requires a habit of logical thought.
3. It requires clearness of perception.
4. Self-control and patience.
5. Power to read the human mind intuitively.
6. It requires a masterful knowledge of the subject matter and;
7. The instinct to discover the weak points in the witness under cross-examination.[10]

In every cross-examination, there are facts to be introduced, points to be made and theories to be supported. There is also the opponent’s case to be undermined. Cross-examination is a science with firmly established rules, guidelines, identifiable techniques, and definable methods, all acting to increase the cross-examiner’s ability to prevail. Cross-examination is also an art. And, experience more than anything else, helps to develop the artistic components of cross-examination. With some measure of commitment on the part of the advocate, cross-examination can truly be demystified.

Planning the Cross-Examination

Effective cross-examination requires a degree of planning and preparation on the part of the lawyer. This is regardless of natural talents and experience. Do not forget that the person you are cross-examining has come to court prepared for your questions. He has participated in a mock trial session at his lawyer’s office and has also read his depositions over and over again. He knows the facts of the case very well, sometimes more than you, the lawyer. He has noted the controversial portions of his testimony and has provided answers for them already. He is simply waiting for you.

In order to ensure a planned, disciplined, safe and effective cross-examination, the following factors must be kept in mind:

1. Know the facts of your case:

It is difficult, if not impossible, to achieve effective cross-examination without a firm knowledge and understanding of the facts of your case. It is from knowledge of the facts of the case that counsel is able to identify the real issue(s) in controversy. In a judicial system such as ours, where, in civil cases, statement of claim, depositions of witnesses and documents are filed and served on counsel in advance of hearing, counsel should take out time and carefully read through such court processes so as to have a firm understanding and appreciation of the issue(s) in controversy. Under this heading, counsel should also do the following:

–        Outline or mark key issues or points in the witness deposition.

–        Make a list of the strong points to start and end with.

–        Prepare questions in advance.

–        Study the position of the law on the subject matter.

In a criminal charge, counsel should study the ingredients of the offence upon which the accused person is standing trial. If it is a suit whose subject matter is the Will of the deceased, for instance, counsel should, during his preparation, note the legal requirements of a valid Will. The list goes on and on.

Indeed, with a firm understanding of the facts of the case, coupled with a firm understanding of the position of the law, it becomes easy for the cross-examiner to achieve result-oriented cross examination.

2. Define your objective:

The cross-examination of every witness must be with a clearly defined objective. There must be a reason or reasons why you are cross-examining a witness. Let us take the example of a medical doctor who has been called by the prosecution in a murder trial to testify to the result of the autopsy he conducted on the body of the deceased. The objective of the cross-examiner in such a case should be to cross-examine the medical doctor and show to the court that he only conducted the autopsy after the demise of the deceased; that the doctor was not at the scene of crime when the deceased was allegedly killed and therefore did not see the accused person as the person who killed the deceased. Depending on the information and facts available to the cross-examiner, his objective could also be to discredit the medical doctor and show to the court that he does not possess the qualification he claims and therefore, cannot be relied upon as an expert in the field of medicine.

Indeed, there is no need cross-examining without a clearly defined objective. Every cross-examiner must have a carefully defined objective before embarking on cross-examination. By knowing the objective of a particular cross-examination, the specific questions to be asked are apparent and would easily fall into place.

In summary, every cross-examiner should note the following:

–        Know what you want from the witness before the cross-examination.

–        Make sure your questions only elicit the information you need to make your argument. Everything else is extra.

–        Get as much vital information as you can – let the judge stop you, do not limit yourself.

–        Pay attention to the judge – is he bored or aggravated by your cross examination?

–        When you get what you want, stop!

3. Prepare your questions in advance:

There is wisdom in preparing a set of questions in advance of the cross-examination. In so doing, one is able to cover the field and take every vital issue into consideration. Determine and make a list of the strongest points to start and end with.

However, there are occasions in the courtroom where the witness is evasive or playing smart to most of the prepared questions. The cross-examiner should not worry himself; he should also be smart enough to ask follow up questions on the spur of the moment.

It should be noted that it is possible to achieve effective cross-examination without necessarily going to court with prepared questions. However, experience has shown that most lawyers who fail to do well in court during cross-examination never really prepared for the cross- examination. On the other hand, a lawyer armed with carefully prepared questions to guide him in the cross-examination will certainly cross-examine more thoroughly than the others. Even where such lawyer departs from the prepared list to ask questions off-hand in spontaneous reaction to the unexpected response of the witness, it is usually easy for such lawyer to go back to his list of prepared questions and be sure he has exhausted all he needs to ask such witness. Going to the courtroom with a set of questions for the witness does no harm to the lawyer. It is therefore, highly recommended.

4. Prepare your witnesses for their cross-examination:

Most lawyers spend time preparing for the cross-examination of the witnesses of the other side and, in the process, forget to prepare their own witnesses for cross-examination. The young lawyer should not follow this pattern. It should be noted at all times that just as you have the floor to cross-examine the witnesses of the opposing side and possibly destroy their testimonies, the lawyer on the opposing side will also cross-examine your witnesses at the appropriate time. This, therefore, makes it imperative for lawyers to find time and prepare their witnesses for cross-examination. With proper preparation of one’s witnesses, certain blunders common in cross-examination can be avoided.

The following points are therefore recommended to every lawyer preparing his witness for cross-examination:

1. Explain to your witness that the lawyer on the opposing side does not necessarily want to kill him (no matter how aggressive the other lawyer sounds in court) but that the lawyer will seek admissions from the witness to support the lawyer’s theory of the case.
2. Tell the witness what points you expect the opposing lawyer to cover.
3. Talk to the witness about the fact that judges like to see witnesses who are firm and stand their ground at cross-examination.
4. Tell the witness not to be unnecessarily defensive.
5. Tell him to address the judge with courtesy in words such as ‘My lord’.
6. Teach the witness to listen thoroughly and critically to the questions before volunteering answers.
7. Take the witness once again through his written deposition. In a criminal matter, take the witness through his extra-judicial statement to the police, a copy of which would have been served on you as counsel in advance.

The Commandments of Cross-Examination

1. Ask only leading questions:

Every witness from the opposing side would like you to lose and will be in control if you allow him. Never allow him! Control him with leading questions.

Leading questions in cross-examination are most effective because they essentially allow the cross-examiner to testify and the witness to ratify. This age long commandment of cross-examination is another way of saying ‘be in control of the witness.’

Leading questions are all such questions that elicit a “Yes” or “No” answer. According to the Black’s Law Dictionary:[11]

A leading question is a question that suggests the answer to the person being interrogated; especially a question that may be answered by a mere “yes” or “no”. The use of leading questions is also known as “suggestive interrogation.

As a rule, every single question you ask during cross-examination must be a leading question. Never ask questions that begin with the words:

Why;

What;

How;

When;

Tell us, and

Explain.

Questions that begin with the above words will ‘kill your client’s case’. Most often, such questions allow the witness the opportunity to explain and possibly damage the case. Once you ask any question that begins with these words, you have violated a fundamental rule of cross-examination, which admonishes every cross-examiner to ask only leading questions. Avoid this mistake which is very common with most trial advocates. Stick to the rule.

Always remember that the strongest tool or weapon in the hands of every cross-examiner is the ability to ask leading questions. It gives you control over the witness and restricts him to what you want.

Never ask questions that permit the witness to give a narrative-form answer. Let the witness know who the boss is and who is in control. Hold the reins tight enough so that the witness does not have an opportunity to run away with your case. Make the examination appear to be a series of damaging statements by you, the truth of which the witness must admit.

Once you develop your command of leading questions, something amazing will happen; you will stop witnesses from evading your questions.

Examples of leading questions:

1. The light was red. Wasn’t it? (To this question, the witness can only answer “yes” or “no”).
2. The bird was in the sky. Correct?
3. You were not there in Maitama during the October 1, explosion. Were you? (To this question, the witness can only answer “I was there” or “I was not there”)

Other examples:

You left work at 4pm, right?

Got home at 4:30?

Parked in the garage?

Walked up the staircase?

Opened the door?

And saw your roommate face-down on the floor?

The above questions allow the witness no opportunity to evade or engage in an argument with you. You get exactly what you want. The questions are short, leading and straight to the point.

Compare the above line of questions with this:

So you saw Mr. Johnson, your roommate face-down on the floor when you walked into the room after driving home from work and you got home after 30 minutes at 4:30 pm. Correct?

The above question is needlessly long, winding and clumsy. It is too dull and imprecise. It does not appear professional in any way. Such a question will simply allow the witness an opportunity to explain, dodge your question and run away with your case. Avoid such pattern of cross-examination. Ask only leading questions using short sentences!

There are countless examples of leading questions. Just think of them.

2. Be Brief:

It is not a rule that cross-examination must last for hours. Effective cross-examination can still be achieved in a few minutes. With full knowledge of the facts of the case and the area of contention, coupled with preparation and a clearly defined objective or reason for the cross-examination of the witness, a good lawyer can navigate his way through and achieve effective cross-examination without boring the court.

Know what you want from the witness, achieve it, pull over and allow the court to do its next business for the day. Timing is, therefore, of crucial importance in cross-examination.

3. Ask short questions using plain words:

Cross-examination is not a forum for grandstanding. It is not an opportunity to literally import the English dictionary into the courtroom. There is no gain making use of “big” grammar in cross-examination. Cross-examine in plain and everyday words. After all, all you need is to advance the case of your client through the mouth of the witness. This can only be done with the use of simple and plain language capable of being understood by the witness and the court.

Also, to achieve effective cross-examination, the cross-examiner should make use of short questions. From experience, long and winding questions have the tendency of confusing the witness and the court. It is advisable to break your interrogation into short questions capable of easy comprehension by the witness.

Only ask for one fact per question. If you ask for one fact per question, you will surely tell a more effective story through cross-examination. On the other hand, if you ask for too many facts per question, it gives the witness room to escape. Limit your questions to one fact per question. With short questions, the answers can easily be elicited from the witness. Do not forget: Ask of only one new fact per question.

4. Maintain eye contact with the witness:

I know a couple of successful cross-examiners who during cross-examination of witnesses, change their positions in the courtroom and take such position that enables them maintain direct eye contact with the witness. You do not necessarily need to go too close to the witness box. All that is required here is taking such position in the bar that enables you look directly into the eyes of the witness.

Once the witness is aware that you have your eyes on him, his response will most likely be exactly what you want.

One dishonourable conduct, which is sadly becoming pronounced in many courts today, is the practice of counsel signalling from the bar to their witnesses how they should answer questions during cross-examination. This could be in the form of gestures or gesticulations such as nodding of the head to signify a ‘’yes’’ answer or shaking of the head to signify a ‘’no’’ answer. Maintaining eye contact with the witness makes it impossible for such witness to look up to his counsel for guidance.

The importance of this point lies in the fact that the facial expression of the witness can help the cross-examiner to arrive at the accurate estimate of the integrity of the witness. Maintaining eye contact with the witness is, therefore, an effective technique in cross-examination.

In his book Before and After the Trial, 1980,R. Harris noted thus:

Never take your eye from that of the witness. This is the channel of communication from mind to mind, the loss of which nothing can compensate. Truth, falsehood, despair and all the passions, all the soul is there.

On his part, the legendary Larry King of the CNN in his book How to Talk to Anyone, Anytime, Anywhere[12] has this to say on eye contact:

There is one rule of the body language that you must follow for successful conversation: make eye contact. Maintaining eye contact – not just at the beginning of your conversation, but the whole time you are talking and listening – all go far towards making you a successful talker wherever you are, whatever the occasion might be and whoever the person is.

Remember the rule – maintain eye contact with the witness throughout the period of cross-examination.

5. Do not be discouraged by any answer which does not flow as you expect; ask follow up questions:

There are occasions during cross-examination when the answer to the question is not what you need. It is either the witness is deliberately evasive or is simply trying to frustrate your efforts. Do not worry yourself and do not express any frustration on your face or in your composure. It happens to every other lawyer. Even the Queen’s Counsel and Senior Advocates of this world experience such witnesses from time to time.

Whenever you find yourself in such a situation, brace up to the occasion. Ask the witness follow-up questions. If the questions are properly couched, you will end up disarming the witness and getting the answer(s) you earlier wanted.

An example would suffice:

Counsel:   Witness, it is true that the house in issue is House No. 63, Kaduna Road, Zaria?

Witness:   That is not true. There is no such house to my knowledge.

Counsel:   It is true that the house in issue is the house directly opposite the compound of Col. Mohammed Ali, Kaduna Road, Zaria?

Witness:   That’s correct.

From the follow up question above, the witness has confirmed the identity of the house in issue. The key here is to know the facts of the case. Ask your client questions for clarification way before the trial. When you are armed with the full facts of the case, it is not difficult to ask follow up questions and pin down an evasive witness.

6. Be organised, effective and straight to the point:

Organisation is key to effective cross-examination. Prior to the cross-examination of the witness, it is expected that counsel should take out time and prepare for the cross-examination. Arrange your notes and place them properly. Arrange the exhibits you will refer to serially and in the order you want to use them. Mark the paragraphs of the witness deposition that you intend to use in contradicting the witness. From experience, judges accord much respect to lawyers who are organised and prepared for the cross-examination of witnesses. It pays to gain such respect.

Composure: Another aspect of organisation is composure. Do not appear overwhelmed by the personality of the witness, no matter his status in the society. By his calling, a lawyer is licensed to cross-examine the five-star-general, the high profile politician and the richest billionaire on earth. Gather the composure of a thoroughbred lawyer who knows his onions, and dish out those vital questions to the witness. Never defeat yourself by your lack of composure.

Finally on this point, ensure that you are effective and straight to the point. Do not over-flog an issue. Do not waste the time of the court. Do not kill the sequence and do not bore the court. Be business minded. Never be sluggish as though you were not prepared for the cross-examination.

In courts on a daily basis, it is not uncommon to watch counsel flip through the case file for minutes on end in search of documents intended to be used for the cross-examination. Such is an indication of lack of organisation and should be avoided by every lawyer who wishes to achieve effective cross-examination. Set out every exhibit or document intended to be used by you at cross-examination. Put them under wraps and separate them from the mass of other documents in the file. Fumbling around, shuffling papers or searching endlessly for documents while the court waits with bated breath does not convey any positive image.

7. Adapt to your own style:

Never try to be like “that lawyer whose cross-examination the other day was superb.” Be yourself. If by nature, you do not have a loud voice like the other lawyer, you can still achieve effective cross-examination with the voice you are blessed with, provided you are audible enough. You don’t need to force yourself to speak the same way the other lawyer does. Again, be yourself.

Adapt to your own style. Study the rules of cross-examination. Know the facts of your case like the back of your palms.  Be conversant with the depositions of the witness you seek to cross-examine. Study the exhibits thoroughly. Have the right set of questions for the witness. Do your homework. Go out there and cross-examine in your own style.

A good cross-examiner develops his own suitable and comfortable styles. There is nothing wrong in borrowing one or two skills or mannerisms from other cross-examiners. It is however a mistake to attempt to mimic others. Be natural and true to yourself.

Even though it may be effective to be “aggressive” or raise your voice sometimes, a good cross-examiner should learn to control his temper as getting angry may lead to an assumption that the witness got the best of you. A good cross-examiner should know the demarcation between tough and mean, between arrogance and confidence and between control and dominance.

If you abide by the above, you can achieve effective cross-examination through your own peculiar style.

8. Do not be hostile to the witness:

Cross-examination is not a war front. There is no need being combative with the witness. I tell you, you can achieve the result you desire in a cross-examination without necessarily being combative with the witness. Treat every witness with some measure of courtesy. This will not stop you from achieving your aim. Feel secure enough in the idea that your points are so clear that you don’t need to be angry before the answers can come forth.

Do not be nasty or resort to name-calling. It is perceived as unprofessional and the judge will surely discredit and overrule you. Remind yourself of your reason for cross-examining each and every particular witness. It is doubtful if there is any lawyer who sets out to be combative with the witness. The intention is always to elicit useful points or facts from the witness in furtherance of the case of your client. Go on and do just that. If you are a good cross-examiner, you can always achieve your aim without necessarily insulting or abusing the witness. Avoid every temptation to be abusive of the witness. Never lose your cool. Remain professional throughout the cross-examination. If the witness fears and respects you, cross-examination will be more effective than if the witness fears and hates you.

9. Take baby steps:

This commandment simply extols the virtue of patience in cross-examination. It must always be remembered that the delivery of key points is not just a destination but a journey on which the court should accompany the cross-examiner.

For instance, in a cross-examination of an expert who expresses opinion which has not been subjected to a peer review, a cross-examiner who intends to land a killer punch may ask the following questions:

Q:     Witness, have your opinions on this subject-matter ever been submitted for peer review?

A:     No.

Obviously, the above has elicited the desired answer. However, if the court is to go on to that journey with the cross-examiner and fully understand the import of the question, it may be better to adopt the “baby steps” approach by beginning with series of questions as follows:

Q:     Witness, how long have you been teaching in the University?

A:     For over twenty years

Q:     I am sure you have heard about the peer review process?

A:     Yes.

Q:     And by peers, we are talking about people in your area of competence?

A:     That’s correct.

Q:     So the peer review process involves a review of one’s opinions by his peers or colleagues?

A:     That’s correct

Q:     It allows one to get valuable feedback from others about what they think of one’s opinions?

A:     Yes

Q:     This matter has been going on for a number of years and for these years, you have been expressing these opinions … have you ever stood in front of your peers to share with them the opinions you have just shared with the court?

A:     I am yet to do that …

Q:     Witness, when you submit articles to a good journal the article is peer reviewed before it is published? Is that correct?

A:     Yes

Q:     Can it be a way of weeding out bad scientific opinion?

A:     That’s true

Q:     Standing here today in court, and after these years of involvement in this area, you have never submitted these opinions to your peers so that they can determine whether they are even worthy of consideration and or publication.

Another example is the cross examination of a police officer. Counsel could employ baby steps by asking questions such as:

Q:     In which year were you recruited into the police force?

A:     1982

Q:     So I’m correct to say that you have served in the police force for 34 years now.

A:     You are correct.

Q:     What is your highest educational qualification?

Other questions can then follow.

The above journey obviously takes time but the journey may be worthwhile. This is not to suggest that all cross-examination must take this circuitous route. In some cases, the court will become bored. The cross-examiner, should therefore, gauge the importance of a particular point and assess what route it will take to deliver effectively to the court.

Always remember to clearly drive home your point during cross-examination. This is because a misunderstood point is no point at all.

10. Avoid one question too many:

If the witness has made a useful admission in his answer to your question at cross-examination, do not press further. The admission is in the record of the court. The risk in pressing further is that the witness may recognise the consequence of his admission and immediately make a U-turn. Never try to perfect an already good response. If a witness has been discredited or has made a monumental concession, leave him at that and move on to the next question.

11. Use “inflection” and “modulation” to strengthen the questioning:

Inflection is a change in pitch or loudness of the voice while modulation is the use of inflection to communicate meaning. These are effective means of highlighting key points and keeping the listener interested.

Using inflection and modulation will not only make your questioning more interesting, but will also allow you emphasise key points.

Let’s consider the impact of inflection on the following statements:

1. “I never said I would give you money.”
2. “I never said I would give you money.”

As can be seen above, ‘I’ and ‘money’ are emphasised. The first statement above acknowledges that someone said that money would be given, but it was not the person making this statement. The second statement indicates that the person making the statement said that he was going to give the witness something, but it was not money.

Indeed, inflection and modulation can give strength to an otherwise dull cross-examination question.

12. Start and end with the strongest points:

The strongest point should be made early in the cross-examination. Never start your cross-examination with a low point. If you have prepared well for the cross- examination, it is quite easy to identify the strongest points. Start with them. You must also end your cross- examination on a strong note. Never end your cross- examination on a low point!

13. Never ask a question to which you do not already know the answer:

As a general rule, you should only ask questions to which you already know the answer. With proper preparation and full knowledge of the facts of the case, it is not difficult to abide by this commandment. Stick to it to avoid expensive damage to your case.

14. Do not allow the witness give a speech: Control him with your questions.
15. Make use of the deposition of the witness:

The deposition of the witness is a handy tool for his impeachment at cross-examination. Make use of it. Refer the witness to the page and paragraph you wish to impeach him on. Read out the paragraph to the hearing of the court and the witness if need be. Contradict him with another of his statements, but do not give him the opportunity to explain the contradiction.

16. Do not get into a quarrel with the witness.

It is a sign of frustration and defeat.

17. Know when to quit:

Generally, there are various occasions or moments to quit cross-examination. One of such occurs when the witness has been bruised or has made a gargantuan concession. In such situations, there is no need for overkill. Simply quit at that stage. Note that there is a risk in going on: the witness, like a ‘dead goat’, may negotiate a remarkable comeback and remake his statement. You may never get him again.

Be watchful and attentive. If your aim has been achieved, quit and leave the rest for summation or final written address.

Conclusion:

The nitty-gritty and guide to effective cross-examination is nothing exoteric. It is something you can attain. If you make mistakes, do not be discouraged; forge on but create time to review your strategy to know where you went wrong. With more of your hands on the plough, you will master the art of cross-examination. No senior lawyer got it right from the first day. They also have their stories to tell. We learn to cook by cooking. We learn to drive by driving. Take advantage of every opportunity you have to cross-examination. Every cross-examination done by you helps you dispel the mysteries behind cross-examination and many misconceptions.

Indeed, the future of the legal profession is in the hands of the young lawyer because the young lawyer is the future of the Bar and the future of the entire justice system. This underscores the place of the young lawyer in the legal system of our dear country. To occupy this pride of place, the young lawyer must arm himself with the tools needed for this transformation. He must arm himself with the skills needed for the 21^st Century advocacy. One of such indispensable skills is the ability to effectively cross-examine witnesses, using the nitty-gritty of cross-examination as your constant guide. No age at the Bar is too young for effective cross-examination. What matters is your willingness and preparedness to cross-examine effectively.

While I wish you well in your next cross-examination, I choose to end this paper by reminding you of the ‘’I can spirit’’ (made prominent by the first black President of the United States of America, Barrack Obama) which does not permit of any self-defeat or limitation in whatever one sets out to achieve. You too can achieve effective cross-examination.

I wish you success in your next rounds of cross-examination.

Ekemini Udim is a Barrister and Solicitor of the Supreme Court of Nigeria and Senior Partner of Justice Chambers. He is the author of Practical Approach to Effective Cross-Examination, revised in August, 2021 with a Foreword by Hon. Justice Onyekachi Otisi, Justice of the Court of Appeal, Lagos Division. He is also the author of: Practice Guide on No Case Submission, Trial within Trial in Criminal Proceedings, Principles of Garnishee Proceedings in Nigeria and, Principles of Bail in Nigeria. He has represented clients in all courts of record in Nigeria up to the Supreme Court and has personally cross-examined numerous witnesses in the course of his practice of law in regular courts and at Special Court Marshalls. He is the Host of You & the Law (a law discussion platform on YouTube). Ekemini beliefs that knowledge shared is knowledge preserved. He is reachable on: 08131937282 and ekeminiudimforjustice@gmail.com 

[1] See:Ekemini Udim, Practical Approach to Effective Cross-Examination, 2021, Princeton & Associates Co. Ltd., Ikeja – Lagos, Nigeria.

[2] 9^th Edition, page 433

[3] Encyclopedic Edition, 2010 at page 309

[4] 8^th Edition, page 351

[5] See: Jacob A. Dada, The Law of Evidence in Nigeria, 2004, Optimist Press, Calabar, page 441

[6] (2011) Laws of the Federation of Nigeria

[7]  4^th Edition (1936) at page 27

[8] (1994) 26 C.R (4^th) 1

[9] (1977) 2 C. R (3^rd) 293

[10] See: Francis Wellman, The Art of Cross Examination, 4^th Edition (1936) at page 28

[11] . 9^th Edition, page 969

[12] (1994) Three Rivers’ Press, New York, page 45