Cross-examination is the sexiest part of any trial. Along with the impassioned closing address it is the very stuff of court room drama. Think of Kaffee's cross-examination of Colonel Jessup in A Few Good Men. Or Vincent Gambini's brilliant magic grits cross-examination in My Cousin Vinny. Or the classic, authoritative and measured testing of the lying rape victim in To Kill a Mocking Bird.
In life cross-examinations never ends with a screamed confession and monologue defending the crime. Nor do they end with a witness admitting to lying.
What then is the purpose of it and what does a good one look like.
The starting point is to know that our criminal justice system is adversarial. That is, two advocates represent their parties' cases before an impartial person or group of people who decide the facts and apply the law. The idea is that the parties engage in non-lethal combat, pulling apart each other's case and when the dust settles the only thing left standing is the truth. This is different to the inquisitorial system where the judge takes an active role, steering the search for evidence and questioning witnesses.
Adversarial advocates have a duty to act fearlessly and faithfully for their client. This means searching for favourable evidence and attempting to neutralise or destroy unfavourable evidence.
Cross-examination is central to the system. Its 'boiled down' purpose is to find answers favourable to your case and undermine testimony that is unfavourable to your case. This is easy to state but difficult to do.
The approach, the skills, the tools to do it have never been more affectively summarised than by Irving Younger's 10 Commandments of Cross Examination. Younger was an American lawyer, professor, judge and writer. He was known to lawyers and students for his intelligent, entertaining and impassioned lectures on trial technique. Before the internet, crackling old videos of his lectures were passed between students like porn. The images blurred, the colour bleeding but the substance and form of his delivery sharp and thrilling.
Sadly, Younger died at just 55 in 1988. Now he lives only online. I have Australianized the commandments and listed them below. But that is not enough. You must watch Younger explain them to understand. Always erudite and by turns funny and moving, he was one of the best.
1. Be brief
2. Short questions, plain words
3. Leading questions only
4. Don't ask a question without knowing the answer
5. Listen to the answers
6. Don't argue with the witness
7. Don't let the witness repeat evidence from chief
8. Don't let the witness explain answers
9. Don't ask the 'one question too many'
10. Save the ultimate point of your cross for the closing address
Next time we ask, is cross-examination an engine of truth?
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