Cross examination of difficult witnesses

Speech to the Bar Association of Queensland Annual Conference

Thank you very much for inviting me to participate on this panel on the cross-examination of difficult witnesses. I confess that, when I was informed of the topic, I was a little unsure about exactly what the organisers had in mind. As a general proposition it seems to me that the more difficult a witness is to cross-examine, the less there is you are likely to be able to do about it. The most difficult witness must be one who is honest, reliable, has a good memory, who presents calmly and articulately, and whose evidence sinks your case. If you find yourself confronting such a problem, then the only advice I can offer you is to settle.

But the more I thought about it, the more it occurred to me that, in my experience at least, almost every witness is a difficult witness when it comes to cross-examination. The reasons why that is so in any particular case are as varied as life itself. Indeed, I would venture that perhaps the fundamental reason cross-examination is difficult is because, if it is to be done well, there are no rules capable of providing real practical assistance in planning what you will do and how you will do it. You must approach each one differently and on its own terms.

It follows, I think, that we risk missing the point by focussing on the witness as the source of difficulty in cross-examination, rather than the nature of the task itself. To determine how best to cross-examine a particular witness, you need to think about much more than the individual sitting in the box. You need to approach cross-examination from the perspective of the presentation of your case as a whole, and with a clear appreciation of the function of cross-examination in an adversarial trial.

There is no way to do that other than by hard work and careful thought. Beyond that, I do not think that there is a secret to cross-examining, either generally, or in respect of any particular type or category of witness. There are no templates that will serve even as a basic structure from which you can work. No magical verbal formula exists that will bring any given witness undone; nor is there a look or tone of voice that works as a truth serum. Examples of techniques that have worked in one particular context, may or may not work in another.

That does not mean that a close analysis of commonly recurring types of witnesses and issues may not be highly instructive. Following these remarks, my colleagues on the panel will provide you with some more concrete guidance of that kind, and I can assure you that what they have to say will be of very great value. In addition to hard work and careful thought, the other essential ingredient to becoming a better cross-examiner is experience, and that includes, in addition to acquiring it yourself, learning from the reflections of skilled practitioners.

But you will miss the point, and the value, of that panel discussion if you treat it as the sharing of a series of rules about how to deal with particular witnesses or situations: “if confronted with X, do Y”. Rather, you should approach it as a discussion of the kind of considerations that might inform a response to a particular situation; in other words, of the way to think about a particular kind of problem. Every time you cross-examine, you will be encountering a set of circumstances that no cross-examiner before you has ever encountered, nor will again. It follows that unthinkingly following the example of another cross-examiner in different conditions is not guaranteed to produce the same spectacularly successful outcome.

My purpose today, therefore, is to offer some reflections that might help inform the way in which you go about your thinking in relation to a particular witness. I will concede immediately that a perfectly valid objection to what I am going to say is that it is all obvious, and that you know it all already. But I think, particularly under the extreme pressure of trying to plan a challenging cross-examination, it is easy to lose sight of the fundamental nature and purpose of the task; and when you find yourself in a difficult spot, returning to basics will often reveal a remarkably simple answer.

The indispensability of sheer intellectual effort to a good cross-examination is not so depressing a thought as it might first seem. The tales of cross-examination that barristers tell each other have a tendency to imply that unless you are one of a vanishingly small number of divinely favoured individuals blessed with a rare combination of super-human levels of intelligence, perceptiveness, wit, ferocity, and clairvoyance, membership of the club of great cross-examiners is inevitably to be denied to you.

You have all, no doubt, heard many stories of famous cross-examiners effortlessly securing devastating admissions through spectacular feats of forensic brilliance.

Perhaps one of the best-known examples of that genre is one involving F.E. Smith. Most of the stories about F.E., of course, are concerned with his incredible rudeness to the bench; stories that, as Murray Gleeson has observed, conspicuously fail to mention how his clients fared when it came to the ultimate outcome of the case. There is also, however, a celebrated account of F.E. cross-examining the plaintiff in a personal injury case.¹

It is said that, in a most sympathetic manner, he asked the witness if he could please show the Court how high he was able to lift his injured arm. After the witness had gingerly raised it to shoulder height, F.E. then said: “And now will you show us how high you could raise it before the accident?”. The plaintiff obligingly waved his arm high in the air, and promptly lost the case.

Closer to home, Jack Smyth QC told this story about Jack Shand QC:²

“He was appearing in an admiralty case in which the critical issue was whether one of two vessels involved in a collision had given two blasts on her whistle, indicating an intention to turn to port. It was asserted by one side and strenuously denied by the other. A witness who was apparently quite independent was called and it was vital that he should be discredited. He claimed that he was standing on a wharf over at Mosman, I think, it happened in the Harbour – and he swore most convincingly that he distinctly heard those two blasts. Shand was watching him very closely as he gave his evidence. When he rose to cross-examine he began to fiddle with his papers, as was not unusual with him, pretending to be looking for a document. Keeping his head well down he asked “Where were you standing when you heard these two blasts of the whistle?” The witness stood looking intently at him. There was no reply. Then in a much louder voice he asked the same question, there still being no reply. On the third occasion he literally shouted the question, by which time the witness noticed that everybody was looking at him and becoming somewhat uneasy said “What did you say Mr Shand?” The next question was, “You are stone deaf, aren’t you?” The witness said “Yes Mr Shand”. The way in which he had achieved that result was that as he was watching the witness he noticed that the witness’ lips were moving as though they were forming the words that were being addressed to him by the examiner in chief. He thereupon came to the conclusion, which could of course have been quite wrong, but in this instance was not, that this man was a lip reader and was, therefore, deaf.”

These stories, and the multitude of others like them, have much in common, including that one can’t help wonder if they are entirely true. But even taking them at face value, the triumphs they describe usually depend on the fortuitous combination of a blatantly perjuring witness and a clever trap that was only able to be laid by reason of some sixth sense of counsel, and only able to succeed by reason of some particular dim-wittedness on the part of the witness.

The lessons to be drawn from stories of that kind are thus limited. But perhaps worse than that, they risk giving the impression that, if you are any good, you should always be able to expose a witness’ perjury in some dramatic and unambiguous manner (with the corollary, that if you cannot, you must not be an effective cross-examiner). In perpetuating the idea that good cross-examiners are capable of such feats, they risk demoralising those who correctly perceive that their prospects of being able to replicate a triumph of that kind are non-existent. They suggest that a great cross-examiner is the legal equivalent of Mozart to classical composition, or Einstein to theoretical physics – a person blessed with some divine gift, unable to be comprehended, let alone replicated through application and hard work. And thus what, we all may think, is the point of thinking about how to cross-examine, if at the end of the day supernatural talent is what is required?

A further limitation of those kind of stories is that they tend to focus on a very specific type of cross-examination; namely, the endeavour to expose a witness who is lying through their teeth. If all you had were barristers’ tales, you might be inclined to agree with the Nurse in Romeo and Juliet, who said:³

“There’s no trust,

No faith, no honesty in men. All perjured,

All forsworn, all naught, all dissemblers.”

Thankfully, however, Proust’s observation that the “universe is true for us all and dissimilar to each of us”⁴ better explains the vast bulk of conflicting testimony in court. It is much more difficult, however, to turn a patient cross-examination that succeeds in demonstrating that a witness had honestly misremembered or misperceived some relevant detail, or an expert who acknowledges that his or her opinion is based on an assumption that was not independently proven, into a story worth telling in a Bar common room. But cross-examinations of that kind are likely to represent the vast majority of those you are called upon to perform.

The first step to becoming a better cross-examiner is thus, it seems to me, to liberate yourself from the unrealistic expectations engendered by the stories of great cross-examinations that you’ve been told, and to console yourself with the knowledge that like all good lawyering, the principal ingredient in an effective cross-examination is careful thought and hard work. How, though, should you go about the task?

I have already mentioned that you need to approach every individual cross-examination through the prism of a clear appreciation of the role of cross-examination generally in our adversarial system.

Wigmore famously described cross-examination as “the greatest legal engine ever invented for the discovery of truth”⁵ – and, whether or not that is in fact true, it is the discovery of truth that is the purpose that alone explains and justifies its central place in our trial process. Ultimately, therefore, every single question you ask in cross-examination should be capable of justification as advancing the pursuit of the truth.

Now is not the occasion to rehearse in detail the way in which cross-examination became, as it was described as recently as last week, an “essential component of a fair trial in the adversarial system”.⁶ That is a fascinating topic, with implications for many aspects of our modern law. But a brief excursion through history may, I think, help to explain why it became so, how it has, and has not, been found to assist, and thus to illuminate its role and purpose in contemporary practice.

It is often assumed that cross-examination’s pedigree is rather more longstanding than it in fact is. Scholarly consensus seems to be that it was only in the period between about 1780 and 1840 when the principal features of our modern adversarial trial, in essence a contest between the parties overseen by a neutral judicial umpire, took shape.⁷ And it is in that same period that cross-examination as we know it began to appear.

To state the obvious, for there to be cross-examination there needs to be witnesses, and for a surprisingly long time the common law managed to do without them. That is because juries were expected, as members of the community in which the relevant events occurred, to have their own knowledge (or means of obtaining knowledge) of what had happened:⁸

“The early jury was self-informing. No instructional trial was held to inform its verdict. If the jurors thought they needed more information, they obtained it ‘by consulting informed persons not called into court’.⁹ The medieval jury came to court not to listen but to speak, not to hear evidence but to deliver a verdict formulated in advance.”

Over time, of course, the jury “underwent its epochal transformation from active neighbourhood investigators to passive triers”, with the consequence that the central and defining feature of a trial became the presentation of evidence, including the testimony of witnesses, upon which the tribunal of fact would render its decision.¹⁰

Intrinsically linked to that process of evolution was the development of rules to safeguard and promote the reliability of the evidence upon which courts would be asked to make a decision.

The original approach of the common law courts, in relation to witness testimony, involved two basic elements, neither of which were cross-examination.

First, various categories of witness who were regarded as inherently susceptible to the temptation to give false evidence were held not to be competent to give evidence at all. Perhaps the most surprising exclusion of this kind to our modern eyes is that the parties themselves were not permitted to give evidence.

In civil trials, parties were incompetent to testify until 1851.¹¹ In criminal trials, defendants were only permitted to give evidence in 1898.¹² By those points in time, as we shall see, cross-examination had become a well-entrenched aspect of the procedure of the common law courts. But the point of present relevance is that the initial approach of the common law was to exclude completely certain kinds of potentially suspect evidence, rather than to subject it to scrutiny. These features of the common law played some role in encouraging Chancery litigation, where parties could be made to answer (but only in writing) questions under oath. In relation to this state of affairs, Dicey observed (at a point in time where the common law had adopted cross-examination as part of its procedure):¹³

“In other words, whilst the common law courts took the right method for ascertaining the truth [that is, by examining and cross-examining witnesses orally], they excluded the evidence of the persons to whom alone the truth was likely to be known, whilst the Court of Chancery admitted the evidence of the persons most likely to know the truth, but would receive it only in the form of written answers, which give little or no security that the witnesses who know the truth should tell it.”

Lord Mansfield provides a notable example of a common law judge who regarded the wholesale prohibition of particular categories of witnesses as undesirable, observing in 1786:¹⁴

“The old cases, upon the competency of witnesses, have gone upon very subtle ground. But of late years the Courts have endeavoured, as far as possible, consistent with those authorities, to let the objection go to the credit, rather than to the competency, of a witness.”

As an interesting aside, modern research has shown that Lord Mansfield referred a considerable portion of the cases before him out to arbitration, with an order that the arbitrator take sworn evidence from the parties.¹⁵ It has thus been said that:¹⁶

“Mansfield’s willingness to dispense with disqualification for interest when sending civil cases for arbitration reveals his low regard for the disqualification rule and its conclusive presumption that any interested litigant would necessarily perjure himself. Nearly a century before Parliament abolished disqualification for interest, the preeminent jurist of the age was actively evading this senseless rule.”

The second basic precaution was that, for those witnesses who were competent to give evidence, they were made to swear an oath to tell the truth.¹⁷ The significance attached to the oath as a guarantee of reliability explains the origins of the hearsay rule: that is, the fundamental problem with hearsay evidence was regarded as being that, although the witness giving evidence in court had sworn an oath, the person making the out of court statement had not.¹⁸ Nowadays, of course, that rule is much more likely to be justified on the basis that the maker of the out of court statement cannot be cross-examined.¹⁹ The relationship between rules of evidence and the procedure in accordance with which trials are conducted is profound.

In any event, initially, cross-examination – at least in the way that we are familiar with it – did not form part of the trial process, and was plainly not regarded as an essential means by which the evidence placed before the Court was tested. Rather, the rise of cross-examination was, for obvious reasons, tied to the rise of lawyers as participants in the trial process. Once again, it would be a mistake to assume that that role has remained unchanged across the centuries.

To take an obvious example, in criminal trials, of course, a defendant was for a long time not permitted to have the benefit of representation by counsel. It has been observed that:²⁰

“Criminal trials in the early eighteenth century were typically very brief, no more than half an hour on average, including the jury’s deliberation and announcement of their verdict. Not a great deal of evidence was introduced. The facts at issue were normally presented orally by the victim of the offense, supported by witnesses who, like the victim, gave their evidence briefly and generally under the questioning of the judge. The judge acted as examiner and cross-examiner – although the defendant and the jurors could ask questions and often did so by blurting them out: procedure was in this regard rather chaotic. The judge’s intention was to present defendants with the evidence they would have to counter to maintain their innocence. Defendants had an opportunity to question each witness in turn and to reply to the evidence, supported by witnesses to the facts and to character. Accused felons were not allowed counsel, but had to speak entirely for themselves.”

Perhaps unsurprisingly, as a result:²¹

“Judges went out of their way on occasion – before and after 1730 – to cross-examine witnesses at length, especially when they suspected the evidence being given, or when they had some other reason to discredit the witness. Judges were only occasionally moved to engage in vigorous cross-examinations however. For the most part they took the evidence as they found it and sought to have it enlarged upon only to clarify the case to be answered, rather than necessarily to discredit it. They certainly did not prepare in detail for examination and cross-examination; they were not briefed.”

It was from about the 1730s, however, that accused felons began to be permitted legal representation, and their lawyers were allowed to fulfil a role roughly analogous to that which the judges had previously done; namely, questioning witnesses and addressing on points of law. (They remained unable to address the jury on the defendant’s behalf or to offer a defence against the facts put in evidence. The right to full defence by counsel was not granted until 1836, with the passage of the Prisoner’s Counsel Act of 1836.²²)

Perhaps because of this limited role permitted to counsel, cross-examination came to be the principal means by which the interests of their clients were able to be advanced. As Landsman has observed, cross-examination was:²³

“a mechanism that offered the broadest latitude for the development of persuasive proof with a minimum of restrictions. Through cross-examination, defence counsel could present his theory of the case, refute an opponent’s claims, develop favorable proof, discredit opposing witnesses, and generally advance his client’s position before the jury.”

Because cross-examination was the principal means by which counsel could defend their clients, and because they inevitably approached the task from a different perspective to that of the judges who had previously carried out the task, they seem to have adopted a robust and forceful manner.

There is some evidence that juries took some time to adjust to the more vigorous cross-examination of witnesses that occurred when performed by defence lawyers. An account of the trial of one Thomas Car, for assault and robbery, in 1737 provides a good example:²⁴

“The defendant was represented by counsel who vigorously cross-examined the victim concerning his sobriety. At the conclusion of this interrogation a member of the jury protested: “We desire his Lordship would please to ask the Questions that are proper, and that the Man may not be interrupted”.”

In any event, over time acceptance of the role of spirited cross-examination grew, and the development of special skill in those undertaking that role grew with it.²⁵ To watch cross-examinations at the Old Bailey became a popular spectator sport, and the prospect of being subjected to it became a powerful disincentive to give evidence. Indeed, by 1787 it was remarked that:²⁶

“men were reluctant to report crimes and to go to court because they feared that when they got to trial they and their witnesses ‘may be entangled or made to contradict themselves, or each other, in cross-examination’.”

One of the most famous counsel of the late eighteenth century was William Garrow. Accounts of his pugnacious style may easily be found.²⁷ Suffice it to say that, at the hands of counsel like him, cross-examination became a brutal experience. The reputations of witnesses were mercilessly attacked, and any past misconduct was raised and deployed against them. One witness who endured such an onslaught at the hands of Mr Garrow eventually turned to the jury and said: “I will tell you, gentlemen of the jury, if a man has been guilty once of a fault, he is always guilty”.²⁸ Counsel often sought to excite the prejudices of the jury against the witness (on the grounds of their religion or nationality, for example²⁹), or simply set out to humiliate or embarrass them, quite independently of any legitimate forensic purpose. Garrow, for example, famously began his cross-examination of one witness by asking:³⁰

“I observe you wear false curls, do you pull them off when you go to bed?”

More than this, though, the forceful nature of the questioning, and the rhetorical trickery of counsel, gave rise to a sense that witnesses could be bamboozled into saying things they plainly did not mean. In other words: that cross-examination was being used to produce evidence that was plainly unreliable, albeit (at least superficially) helpful to cross-examining counsel’s client’s case. One such tale told of Lord Erskine, hardly a man with a reputation for insubstantial advocacy, will suffice:³¹

“In an action for payment of a tailor’s bill, Erskine cross-examined a witness who swore that a dress coat had been badly made with one sleeve longer than the other. Erskine haltingly queried the witness, “You will swear that one of the sleeves was – longer – than the other?” The witness responded that he did so swear. Having lulled the witness into a false sense of security, Erskine then followed quickly with an angry, “Then, Sir, I am to understand that you positively deny that one of the sleeves was shorter than the other?” Startled, the witness declared, “I do deny it”.”

The concern in relation to the way in which cross-examination was performed was given forceful expression in the works of the Victorian novelist, Anthony Trollope.³² In his 1857 novel “The Three Clerks”, he described a trial at the Old Bailey in which Mr Chaffanbrass for the defence (said to have been modelled on a famous barrister, William Ballantine³³) cross-examined the prosecution witnesses. He had this to say about the process generally:³⁴

“[A] witness in a court of law has no protection. He comes there unfeed, without hope of guerdon, to give such assistance to the State in repressing crime and assisting justice as his knowledge in this particular case may enable him to afford; and justice, in order to ascertain whether his testimony be true, finds it necessary to subject him to torture. One would naturally imagine that an undisturbed thread of clear evidence would be best obtained from a man whose position was made easy and whose mind was not harassed; but this is not the fact: to turn a witness to good account, he must be badgered this way and that till he is nearly mad; he must be made a laughingstock for the court; his very truths must be turned into falsehoods, so that he may be falsely shamed; he must be accused of all manner of villany, threatened with all manner of punishment; he must be made to feel that he has no friend near him, that the world is all against him; he must be confounded till he forget his right hand from his left, till his mind be turned into chaos, and his heart into water; and then let him give his evidence. What will fall from his lips when in this wretched collapse must be of special value, for the best talents of practised forensic heroes are daily used to bring it about; and no member of the Humane Society interferes to protect the wretch. Some sorts of torture are, as it were, tacitly allowed even among humane people. Eels are skinned alive, and witnesses are sacrificed, and no one’s blood curdles at the sight, no soft heart is sickened at the cruelty.”

Concerns such as these led to efforts to identify ethical standards that ought to apply to cross-examination. A celebrated and early example of this is found in Edward Cox’s monograph: The Advocate: His Training, Practice, Rights and Duties.³⁵ While Cox regarded a more civil approach to cross-examination as fundamentally a question of professional ethics, perhaps more relevantly for present purposes he also considered it to be more effective.

Critically, he considered the then-orthodox approach of accusing a witness of lying, coupled with a cross-examination designed to impair their credit, to be vastly inferior to an approach that sought stealthily to gather answers that, whether on their own or in combination with other evidence, would prove the unreliability of the evidence of the witness. It followed almost axiomatically from this approach that Cox emphasised, contrary to the prevailing wisdom, that it was much more likely that a witness was mistaken, rather than lying, in giving their evidence. But at the end of the day, whether the witness was a perjurer, or simply honest but unreliable, the critical point was to demonstrate that their evidence could not be true, rather than focus on the character of the witness.

Another Victorian writer, Richard Harris, described the fundamental thinking behind this new approach to cross-examination in terms that, to my mind, remain entirely apposite:³⁶

“An isolated event is impossible. … The multitude of surrounding circumstances will all fit in with a true story, because that is part and parcel of those circumstances carved out from them no matter how extraordinary it may seem: just as the oddest shaped stone you could cut from the quarry would fit in again to the place whence it was taken. It is therefore, to the rock, of which it once formed a part, that you must go to see if the block presented be genuine or false. You must, in other words, go to the surrounding circumstances.”

In other words, some item of false evidence (whether told as a lie, or simply as some piece of an honest but mistaken account) will inevitably jar with the truth from which it has been severed. The surest way to approach any cross-examination the object of which is to show that some piece of evidence is untrue is to demonstrate the ways in which it does not fit neatly into the uncontroversially true facts that surround it.

The contrast between the style that began to be advocated in the late 19^th century, and that which had preceded it, is illustrated vividly by comparing the approaches of two counsel involved in the trials concerning the Tichborne Claimant. In the civil trial in the Court of Common Pleas that took place in 1871 and 1872 (Tichborne v Lushington), the Tichborne family retained John Duke Coleridge, the Solicitor General. His cross-examination has been described as:³⁷

“a leisurely affair, justified in retrospect by the rationale that its aim was to get as many misstatements as possible by the Claimant on the record. In this, the defendant’s attorneys closedly followed the strategy of cross-examination by stealth, based on circumstantial evidence, advocated by such commentators as Cox and Ram. However, this very leisureliness later became the basis of the popular contention that the Claimant was in fact who he claimed to be. Supporters of the Claimant frequently cited the lack of a dramatic breakdown during the course of his cross-examination as ‘proof’ of his honesty.”

Coleridge’s cross-examination of the Claimant in the civil trial may be contrasted, of course, with the infamous conduct of the Claimant’s counsel, Edward Kenealy, in the subsequent criminal perjury trial (R v Castro).³⁸ Dr Kenealy’s case theory was that his client was the victim of a wide-ranging conspiracy involving the Jesuits, the United Kingdom government, and the legal establishment. He cross-examined one prosecution witness, Lord Bellew, who had been at school with Sir Roger Tichborne, about an alleged seduction of a friend’s wife a long time before any relevant event, and with no other connection to the issues in the case. To another, the manager of the Tichborne estates, he put that he was seeking to prevent the Claimant’s return in order to conceal his own criminal misconduct. A great number of prosecution witnesses were accused of having accepted payments in return for false evidence.

The presiding judge at the trial, Lord Chief Justice Cockburn, began his charge to the jury with a condemnation of Dr Kenealy’s conduct, and there was an enormous public outcry calling for him to be censured. Ultimately, he was expelled from Gray’s Inn and the Oxford Circuit mess, and the letters patent appointing him Queens’ Counsel were cancelled. The Law Journal said this:³⁹

“It does not follow that what was done in the time of Brougham or Denman, or at times anterior to them, can properly be done now. Morality has advanced very rapidly in the last forty years; and we do not see why the morality of the bar should stand still, as an action of doubtful propriety is not helped at all by a citation of similar actions by persons of repute in former times. Half the evils which have afflicted society have had their existence prolonged for immense periods of time, because those who were conservative of the evils could quote the opinion or conduct of some lofty personages in favour of them. Slavery, bull-baiting, condemnation for witchcraft, boiling women, hanging for theft, burning for heresy, and many other enormities which shock our age, were highly approved and stoutly defended by men whose memories are even revered.”

To this day, views in relation to the most effective style of cross-examination differ markedly. It is, thankfully, not common to encounter the worst excesses of the approach deplored by the Victorian writers to whom I have referred these days, but it remains far from rare to see counsel take an approach consisting of not much more than forcefully putting to the witness that they are lying, coupled with questioning about conduct and events of little or no relevance other than the light they are said to shed on the witness’ general credit. Even where a more substantive attack is mounted on a witness’ evidence, it is frequently delivered in an aggressive and confrontational manner, and sometimes accompanied with a display of incredulity and disdain in relation to the answers that are given, which tends to convey, whether intentionally or not, the barrister’s personal view that no credence could possibly be placed on what has been said.

Perhaps my fundamental ambition today is to encourage you away from such a style. The more thoughtful approaches to cross-examination that began to appear in the late Victorian period remain, in my view, highly instructive. I will come back to these points as relevant to the way in which you should approach your cross-examinations, but, by way of anticipation, I suggest that the following key insights can be distilled from their work:

1. First, they emphasised the importance of demonstrating why, and not merely asserting that, evidence should not be accepted, and did so on the basis of rational arguments and objective material.
2. Secondly, and related to the first point, they reflected the emerging scepticism of the courts about the value of witness demeanour in determining where the truth lies. As Lord Justice Atkin famously said in 1924, “an ounce of intrinsic merit or demerit in the evidence … is worth pounds of demeanour”.⁴⁰ There is no reason at all to think that only dishonest witnesses will react badly to being hectored, and ordinary human experience would suggest that it is unlikely that a witness will give a fair account of themselves in such circumstances. It follows that a cross-examination that causes a witness to become confused, or argumentative, or to lose their composure, is unlikely to assist the court in assessing their evidence. The substance is what matters, and a style that does not allow the substance of the witness’ evidence to be tested fairly is thus inimical to the object of cross-examination.
3. Thirdly, they reflected a more nuanced understanding of human memory and behaviour than an approach which seeks to divide the world into honest reliable and dishonest unreliable camps. By that I mean that it is now well understood that the way people perceive and experience events, let alone remember them, is not always the same. The significance of inconsistencies within a witness’ account, and between a witness’ account and other evidence, will necessarily depend on both the nature of a given inconsistency itself, and the factors producing it. It follows that to challenge a witness’ evidence effectively, a necessary first step is to understand it in its full context, including the circumstances that produced it and the way that the witness experienced and was affected by it.
4. Fourthly, and connected to the third point, they recognised that people are not usually innately and always dishonest, and that to the extent that people lie there is usually a reason why they have done so. Before accusing someone of lying therefore, you should consider whether some other factor might explain the evidence that you wish to challenge. And to the extent that you do determine that it is appropriate to challenge a witness’ honesty, you should give careful thought to why it is that this witness has told that particular lie, as opposed to thinking only in general terms about the witness’ character.
5. Fifthly, and connected to the fourth point, they demonstrated a wariness of what I might describe as tendency based credit arguments; by which I mean a contention that a witness should be disbelieved by reason of their general credit, as opposed to particular considerations applicable to the precise evidence in question.

Perhaps overall the message to be drawn from them is that, if you lose sight of the fact that the fundamental justification for every question you ask in cross-examination must be advancing the quest for truth, and that the assessment of evidence requires careful and precise thinking, with the result that a cross-examination needs itself to be focused, specific, and substantive, and instead treat one-on-one combat with the witness as an end in itself, it is likely that your cross-examinations will be both misguided and ineffective.

Against that very general background informing the nature of the task that you are required to perform, then, how do you go about preparing and conducting a good cross-examination?

Work Out Your Case Theory

The indispensable initial step to determining your approach to the cross-examination of a witness is to have a clearly worked out case theory. It is only once you have that, that you will be able to identify the facts that you need to prove your own case, and those facts that will be harmful, if not fatal, to it. It will also allow you, of course, to perceive clearly those facts that are irrelevant. It is only once you are armed with all of that information that you can even begin to think about cross-examination of a particular witness.

Development of a cogent case theory, of course, requires a firm grasp on the legal principles governing the case, the facts as revealed by your instructions and the material available to you, and a carefully reasoned application of the former to the latter. A good example of the laser-like focus that this approach permits to cross-examination can be found in an account of a cross-examination conducted by Garfield Barwick as a junior. Barwick was briefed for the landlord of a dairy farm:⁴¹

“The landlord seized his tenant’s truck and put it up for auction. There was still an action for distraint in New South Wales, the right to seize chattels on one’s land to recover rent. The truck belonged to the tenant’s mother. Under a false name the landlord bid at the auction and was discovered. The mother sued. Barwick was given the brief and asked that, as a hopeless case, it be given as decent a burial as he could.

Barwick’s defence of the landlord was a model of simplicity. He examined the mother briefly. Did she have a business arrangement with her son? She did. He rented the truck from her.

Had she seen the truck lately? She had.

What sort of condition was it in? Very good, her son had fixed it up.

Barwick then called for a non suit. Judge Curlewis was puzzled. Barwick explained. The woman claimed her own possession of the truck had been wronged by the landlord seizing it. Now she admitted her son had possession of it at the time.

Curlewis allowed the woman to change her plea and sue for conversion of the truck. Barwick rose triumphantly to claim a non suit once more: such an action only lay where the goods had been damaged, yet the woman admitted the truck was in better condition than ever. Or it lay where title to goods was affected, yet the auction had fallen through. The woman had her truck, but she had no case on which to sue. Curlewis dismissed the action.

Barwick’s tactics were neat, simple and effective. The facts were trivial but his analysis of them penetrating.”

It will be immediately apparent that even though I have described working out a case theory as the first step in the process, in fact that process and the process of thinking about the cross-examination of a witness are likely to be iterative (indeed, you should be continually re-evaluating and updating your case theory right up until the conclusion of the trial). Fundamentally that is because working out a case theory requires you to work out what you think the true, or at least provable, facts are; and your assessment of the true facts is likely to be affected by your consideration of what you assess the ultimate state of the evidence of all witnesses in the case is likely to be.

The most important thing in developing your case theory is that you must incorporate a fair assessment of your opponent’s perspective. It is a very rare litigant, in my experience, who does not have a genuine belief in the fundamental justice of their case. You need to understand why they feel that way. Is it because they contend the facts are not as your client would have it? Is it because they contend that other facts put the facts upon which you rely in a different light? Is it because they emphasise different facts to those that you emphasise? Are they simply relying on your inability to satisfy the burden of proof to the extent it falls upon you? It is trite to say that the same problem can almost always be viewed from different perspectives; and it is your job to understand what your opponent’s perspective is. It is only by doing that that you will be able to most effectively determine how to advance your own case, and neutralise theirs.

One aspect of ensuring that you try to see things from your opponent’s perspective is that you cannot take your client’s instructions at face value. Clients have a natural and, to a point, understandable, tendency to desire to be represented by someone who “believes in them”. But the moment you subordinate your professional obligation to exercise your own independent judgment as a lawyer in the advice you give, and in making decisions as to how to present a case, to a misguided sense of partisan loyalty to your client’s cause, then – quite apart from the obvious ethical implications – you have done your client a disservice.

Identify the Purpose or Object of your Cross-Examination

Having settled upon your case theory, you will be in a position to identify the purpose or object of your cross-examination of a particular witness. That is because it is only then that you will be able to identify with precision the facts relevant to the issues in dispute about which the witness either will give, or might be able to give, evidence.

Now, it has been said many times before that cross-examination may assist in the quest for truth in three broad ways: by undermining the force of evidence the witness has given, by drawing out from the witness other helpful evidence, or by establishing matters relevant to credit so as to enable the Court to better weigh the evidence of one witness against another.

To ensure you do not allow your cross-examination to stray from its sole permissible purpose, when it comes to determining the object of your cross-examination you should, save in exceptional circumstances, put issues of credit to one side.

Rather, you should define your object by reference to those aspects (and only those aspects) of the witness’ evidence that you must undermine, and any additional helpful evidence that the witness may be able to give.

This might seem to be all so obvious as to go without saying, but it is surprisingly common to see cross-examinations that lack a clearly defined purpose; or, at least, a purpose that is rationally connected to the advancement of the client’s case.

That is to say, it is not uncommon to see a free-ranging cross-examination with no clear purpose other than, it would seem, to argue with the witness about the entirety of their evidence, and to bring forth every instance of discreditable conduct of which counsel is aware. These cross-examinations quickly descend into the courtroom equivalent of a pub brawl.

A cross-examination that has as its object the destruction of the credit of the witness is at grave risk of turning into such a spectacle. That is because questions of credit are necessarily, at best, ancillary to the central task of determining the true facts at issue. It is upon the latter that you must maintain a steady focus.

Before I pass on to the next step, can I pause to say something very important: it is quite possible that your assessment of a witness’ evidence in light of your case theory may lead you to conclude that there is no need to cross-examine a particular witness. Do not be afraid to give effect to such a conclusion. A decision about whether to cross-examine a witness at all is just as important as decisions about how to cross-examine.

Consider How to Go About the Cross-Examination

Once you have identified with precision which aspects of a witness’ evidence you will need to challenge, and which matters other than those upon which the witness has already given evidence you may wish to ask questions, you then need to think about how you will go about your questioning. By this I do not mean the gritty detail of which questions you will ask; I mean the theory of your attack.

Because you will have defined the objective of your cross-examination in terms of particular evidence relevant to facts in issue, it follows that your focus will be on them rather than questions of credit in their own right.

One of the advantages of identifying with real precision those aspects of a witness’ account that you need to challenge is that you will usually find that a very significant proportion of their evidence is uncontroversial. In that regard, I have already mentioned, by reference to the analogy about the quarry from which a piece of rock is cut, that it is to those uncontroversial components, as well as other objective material, that you should immediately turn to consider how you will go about challenging the matters in dispute.

The basic approach that I would take is to hone in on the specific points at which the witness’ evidence diverges from your case theory, and examine them, not as standalone facts or moments, but as part of a broader fabric. To introduce another metaphor, there are ripples in all directions from any single event. It is by examining the consistency of the event in question with those that led up to it, and those that followed from it, that you are best placed to assess its veracity, and to determine the best strategy for unpicking the witness’ account. You need to think about all the implications of changing any one aspect of a narrative (does it affect the presence or location of people, does it change the knowledge that people would have possessed at a relevant point in time, does it affect the plausibility of an asserted motive or reason for acting in a particular way, to identify only a few of the more obvious considerations).

You will need to consider the objective material available to you, the internal consistency of the witness’ account, its plausibility in light of ordinary human behaviour, and its consistency with the evidence of other witnesses (and prior accounts given by this witness). The ways in which you will need to test the plausibility of any particular piece of evidence against all the other surrounding circumstances are necessarily entirely fact-specific, and thus infinite.

Thinking carefully about your theory as to why the witness’ account is untrue is, however, almost always an essential part of this process.

Most commonly, your theory will be that the witness is fundamentally honest, but unreliable for some reason. You thus need to think very carefully about why the witness’ evidence is unreliable:

1. is it because their ability to perceive relevant events was compromised? Were they too far away, or moving, or was the light poor, or was their view obstructed by some object, or some other factor?
2. was there something about the relevant event itself that made it possible that it would be perceived inaccurately? Was the situation fast moving, or chaotic, for example?
3. is the unreliability explained by the frailty of human memory, whether simply due to the passage of time, confusion with other events, the tendency for people to perceive or reconstruct events in light of their own self-interest, or whatever?

The particular nature of your theory, coupled with the ways in which you will contend the disputed evidence does not fit with the uncontroversial surrounding circumstances, will govern how you go about challenging the witness.

If your theory is that the witness is lying, then there are two basic questions upon which you need to form a view.

The first is why the witness would lie in the first place. I have already suggested to you that a generalised theory of dishonesty is unlikely to be persuasive. You need to consider why the witness would lie in whatever particular respect you are alleging. The explanation for that may be self-interest (to avoid a penalty, or for financial gain, to avoid embarrassment, or whatever), loyalty or obligation to someone else, a desire to harm the opposing side, or any number of motivations. You will need to consider whether your theory is really capable of explaining the lie you contend has been told; that is, is it a plausible explanation, or is the motive for lying comparatively insubstantial and lacking in real explanatory power? Exploring those reasons will almost certainly be important – if you cannot explain why the witness would lie, you will find it very difficult to persuade the Court that they have.

The second is why the lie has taken the form that it has. That is to say, any liar worth their salt, in my experience in any event, will try to hew as close to the truth as possible. It is often highly instructive, therefore, to consider why the witness has considered it necessary to depart from the truth in some particular respect. For example:

1. have they done so because they have realised that the “ultimate” lie that they wish to tell demands that other adjustments be made to the true facts?
2. is it to attempt to discredit or undermine a witness giving evidence against them (for example, by removing that witness from the scene of events about which they give evidence, or otherwise defeating truthful evidence against them)?
3. is it to ensure consistency with some prior statement they have given?

It is often only by understanding the thinking behind the lie that you are really able to unpick it.

Once again, though, it is by having a carefully developed theory as to why and how the witness has lied that you will be able to assess how best, in conjunction with objective material, to go about exposing it.

You will have appreciated from what I have said, that, as a general proposition, I do not regard a focus on credit independently of a careful theory about why particular evidence is wrong as a worthwhile exercise. If you cannot grapple with the substance of a witness’ evidence, and are forced to undertake a general attack on their credit, it is likely that the result will be unpersuasive. Of course, to be admissible in the first place, the questioning will need to have the capacity to substantially affect the assessment of the witness’ credibility.⁴² But even assuming that hurdle, as it has been construed in the caselaw, can be overcome, I would invite you to reflect on the true persuasive power of the argument that you are seeking to advance.

Plan your Cross-Examination in Detail

Having worked out the means by which you hope to achieve your objective (that is, the theory of your cross-examination), you need to plan it in more detail.

I do not necessarily mean, of course, that you need to plan it down to the level of writing out every question you will ask. While careful planning of a cross-examination is critical, it must not be allowed to turn into rigidity. An amusing story in that regard was given by Jack Smyth about S. E. Lamb KC:⁴³

“S. E. Lamb KC … was a first class cross examiner, but he had, at times, by reason of the method he adopted, some disappointments. He had a huge table and it was his practice in planning a cross examination to cover it completely with sheets of brief paper by means of drawing pins. He would then, commencing at the top, write out his initial question. Under that would then appear alternate questions according to whether the witness answered “yes” or “no” to the immediately preceding question until the final result resembled a genealogical tree. I have actually seen this – and he would say quite proudly to you “I’ll start here” – pointing to the top of the tree – and “I’ve got him there” pointing to the last question at the bottom. That worked very well, provided the witness in the middle of it did not say in answer to a question “I don’t know”. Then, of course, the whole scheme collapsed.”

But you do need to think, at the very least, about the sequence in which you will deal with issues, the way you will close the gates to ensure that you don’t allow the witness to escape at the last minute, as well as more general issues of approach.

In thinking about this, you should of course consider all of the so-called rules of cross-examination that you have no doubt heard many times. But you should have no hesitation in breaking any one of them, if it does not suit the particular circumstances of a particular cross-examination.

For example, if your theory is that the witness is lying in some respect, my own view is that the usual admonition against asking open-ended questions can, on occasion, be usefully ignored. Encouraging a witness to develop the detail of a lie, particularly in areas that they might not have considered carefully, has a good chance of eliciting material that is capable of being shown to be untrue by reference to objective evidence.

You should think carefully about how you propose to use documents. For one thing, you should never make the mistake of assuming that simply because a document is contemporaneous, that it must be accurate and reliable. Documents can have inaccuracies and untruths built into them just as surely as witness evidence. You need to think very carefully about the circumstances in which a document came to be created, and factor that into your approach.

Furthermore, it is far too common for cross-examiners simply to show witnesses documents, for no apparent reason other than to secure the witness’ agreement that the document says what it says. Ordinarily, a document should only be used if it is required to impeach some aspect of the witness’ testimony (and then only if there is compliance with the rules relating to cross-examination upon documents).

Indeed, you should generally consider carefully any formal or technical rules with which you need to comply.

An obvious example of this is compliance with the rule in Browne v Dunn. The main observation I would offer in that regard, is that, in most cases, if you have conducted an effective cross-examination, there should be very little need to put a ritualistic series of propositions to the witness in order to comply. If you have identified those aspects of the witness’ testimony that you need to challenge, and have undertaken a thorough challenge to them, it will usually follow that you have put to the witness anything that needs to be put.

During Cross-Examination Itself

The most important advice I can give you in relation to the actual conduct of cross-examination is to listen to the answers that are given. Very frequently you will see a cross-examiner who is so engrossed in his or her planned cross-examination, that answers that call for a change in approach, or at least follow-up, are simply missed.

The other thing I would mention in this context is to reinforce a theme that I have returned to a few times already.

While no one would suggest that cross-examination is required to be a pleasant experience for witnesses, any unpleasantness should be limited to the inevitable consequences of legitimate questions designed to get to the truth of the matter. It is a fallacy, in my view, to think that rough treatment is likely to lead to more reliable evidence – or that Courts or juries will assume that the evidence of a witness who is affected by such treatment has been substantively undermined. It is not just that Courts have an obligation, quite independently of any objection being taken, to disallow any question that is confusing, intimidating, offensive, humiliating, or otherwise inappropriate.⁴⁴ A cross-examination conducted in a manner that does not afford a witness a fair opportunity to give evidence does not satisfy the fundamental objective of cross-examination in our adversarial system. To emphasise: that purpose is not to see whether the witness him or herself can be destroyed by any means possible; it is to subject their evidence to legitimate scrutiny for the purpose of ascertaining the truth. If you conduct your cross-examination in a manner that is not conducive to fairly testing the witness’ evidence, it is likely that such victories as you consider you have won will not be as meaningful as you might think. An apparent admission which is obviously contrary to the substance of the witness’ evidence, confused or apparently inconsistent evidence elicited from a witness who has become muddled or paralysed after being browbeaten, or intemperate outbursts from a witness who has been subjected to significant provocation; none of these outcomes are, depending on the circumstances, of course, likely to help you much. On the other hand, if you are able to calmly and forensically dismantle the witness’ evidence, you will have achieved a very great deal.

Furthermore, the manner in which you conduct your cross-examinations should be consistent with your status as a member of a profession, and as an officer of the Court, who is under no circumstances to be personally associated with the cause in which you are briefed to appear. It is no part of the role of counsel to share the outrage of your client, or to wreak vengeance on those who are opposed to your client’s interests. As counsel, you are entirely disinterested, not just in the outcome of a trial, but in relation to the content of the evidence given by witnesses in response to the questions that you ask. Your role is only to present your client’s case as effectively as you are able, consistently with your professional obligations. It is thus inconsistent with your role for you to express in any way your personal view of the witness you are cross-examining, or the evidence that they are giving. It follows, in my view, that questions, let alone comments, that are either worded, or conveyed in a manner or tone, so as to imply that it is counsel’s personal view that the evidence being given by the witness is not credible, are entirely inappropriate.

Finally in this regard, if nothing else, it has been said many times before that you really will find witnesses much more cooperative and prone to saying helpful things if you are polite. And you will also find that, unless and until given good reason to react differently, the natural and instinctive sympathy of judges and juries in any contest between counsel and a witness will lie with the witness. There is really very little to be gained by conducting your cross-examinations in anything other than a calm and polite manner.

Conclusion

I will conclude briefly by returning to the general point I made at the outset: that all cross-examination is difficult, and the only sure guide to doing it proficiently is to keep steadily in mind the function it serves in our adversarial system. If you think carefully about exactly what, in that context, you need from a particular witness, in terms of your case as a whole, then, as often as not, the solution to what might appear a challenging cross-examination will reveal itself clearly.

[1] Campbell, F.E. Smith, First Earl of Birkenhead, (Jonathan Cape, 1983) at 112.

[2] Smyth, “The Art of Cross-Examination”, (1988) Bar News (Autumn) 9, at 11-12.

[3]Romeo and Juliet 3.2.92-94.

[4] Proust, La Prisonnière, “L’univers est vrai pour nous tous et dissemblable pour chacun.” (Translated by C K Scott Moncrieff as The Captive).

[5] Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, § 1367 (3d ed., 1940).

[6] Lee v Huo [2026] NSWCA 15 at [97], per Bell CJ (Mitchelmore and Stern JJA agreeing).

[7] See, e.g., David Cairns, Advocacy and the Making of the Criminal Trial, 1800-1865 (OUP, 1998); Langbein, The Origins of Adversary Criminal Trial (OUP, 2003); Landsman, “The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth-Century England”, (1990) 75 Cornell L Rev 497; Schneider, Engines of Truth: Producing Veracity in the Victorian Courtroom, (Yale, 2015) at 49.

[8] Langbein, “Historical Foundations of the Law of Evidence: A view from the Ryder Sources”, (1996) Columb L Rev 1168 at 1170. See also, generally, Baker, An Introduction to English Legal History, (4^th ed, 2002, OUP) at 72-76.

[9] Wigmore, above note 5, § 1364.

[10] Langbein, above note 8, at 1170-1171.

[11] Lord Brougham’s Act, An Act to Amend the Law of Evidence 1851, 14 & 15 Vict, ch. 99; Langbein, above note 8, at 1184 (fn. 46). See also Wigmore, above note 5, at §§ 575-576.

[12] An Act to Amend the Law of Evidence (Criminal Evidence Act) 1898, 61 & 62 Vict, ch. 36.

[13] Dicey, Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century, (1914) at 90-91.

[14] Walton v Sutton (1786) 1 TR 296 at 300; 99 ER 1104 at 1106-7.

[15] Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, (1922) at 151-6; Oldham, “Truth-Telling in the Eighteenth Century English Courtroom”, (1994) 12 Law & Hist Rev 95 at 112-13.

[16] Langbein, above note 8, at 1186.

[17] See, e.g., Landsman, above note 7, at 593, 597-598.

[18] See, e.g., Langbein, above note 8, at 1174-1175. It would seem that, for a time, the fact that the out of court statement had been made under oath meant that it would be admissible despite being hearsay: see Landsman, above note 7, at 567 (note 355).

[19] Note, in this context, section 64(3) of the Evidence Act 1995 (Cth).

[20] Beattie, “Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries”, (1991) 9 Law & Hist Rev 221 at 222.

[21] Beattie, above note 20, at 233.

[22] See, e.g., Beattie, above note 20, at 230-231.

[23] Landsman, above note 7, at 535.

[24] Landsman, above note 7, at 512.

[25] See generally, e.g., Beattie, above note 20, and Landsman, above note 7.

[26] Beattie, above note 20, at 236, quoting Sir John Hawkins, The Life of Sir Samuel Johnson, (London, 1787), 521.

[27] See, e.g., Landsman, above note 7 at 552-557; Beattie, above note 20, at 236-247.

[28] Landsman, above note 7, at 554.

[29] For example, on the grounds that they were a Jew (see Beattie, above note 20, at 243), or an Irishman (Landsman, above note 7, at 553).

[30] Landsman, above note 7, at 554.

[31] Schneider, above note 7, at 56.

[32] It has been said that Trollope’s “hostility to cross-examination appears to have been a lifelong preoccupation; one contemporary records him as ‘raging and roaring’ against the system of cross-examination at an 1877 dinner with Henry James”: Schneider, above note 7, at 57 (citing R D McMaster, Trollope and the Law, (St Martin’s Press, 1986), at 54. It is no doubt not a coincidence that he was once, himself, cross-examined.

[33] Schneider, above note 7, at 74.

[34] Anthony Trollope, The Three Clerks, Chapter XL, “Mr Chaffanbrass”.

[35] (Law Times, 1852). The principal themes are summarised in Schneider, above note 7, at 63-66.

[36] Richard Harris, Hints on Advocacy, (4^th ed) (Waterlow, 1880), at 84.

[37] Schneider, above note 7, at 75.

[38] See, for a very general summary, Schneider, above note 7, at 75-77. There are of course many comprehensive accounts of the affair, of which one of the more recent examples is Rohan McWilliam, The Tichborne Claimant: A Victorian Sensation (Hambledon Continuum, 2007).

[39] Law Journal, 9 (11 Apr. 1874) at 200; quoted in Schneider, above note 7, at 77.

[40] Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140 at 152. See also Fox v Percy (2003) 214 CLR 118 at [31] (Gleeson CJ, Gummow and Kirby JJ).

[41] Marr, Barwick, (Allen & Unwin, 1980) at 17-18.

[42] See Evidence Act 1995 (Cth), s 103.

[43] Smyth, above note 2, at 10.

[44] See Evidence Act 1995 (Cth), s 41(1).