Cross examination is an extremely important part of the trial process. Yet a witness, in the criminal or the civil areas of the law, can never boast of being too prepared for the process of cross examination, especially when an experienced and skilled advocate stands to display his skills at the bar. Cross examination, especially in the criminal trial, highlights the adversarial system of court procedure, which generally consist of conflict between the evidence presented by the prosecution and that presented by the Defence.

To put it in context as part of the trial process, it is important to understand that cross examination is an important part of the trial process. So when a witness goes into court and his own lawyer takes him through his own evidence that is called examination-in-chief. Most witnesses will find this exercise relatively easy in that it is a matter of telling the story (evidence) subject to the rules of evidence.

Cross examinations

Immediately after the examination-in-chief, the other lawyer (not your lawyer) will rise to ask you some questions. Where there is no question, the lawyer will indicate this to the court. If the lawyer intends to ask questions in cross examinations, these questions are all subject to the rules of evidence plus the issues to be resolved. In most situations, especially in a criminal trial, one of the purposes of cross examination is to test the credibility of the crown's case.

Credibility is the extent to which evidence is accepted as truthful. On the one hand, it is sometimes used to destroy the case for the other side (or cause doubt) and on the other hand it is used to put to or suggest to the witness under cross examination another theory of the case, to assist with fact finding and to elicit evidence favourable to the client the cross examiner is representing. What one must understand is that the purpose of the cross examination will differ depending on the issues to be resolved. For instance, where in examination-in-chief, the witness says that he observed the face of the accused man for two minutes, the role of the of the lawyer in cross examination could be to get the witness to admit that the observation time was much less to the extent that submissions can be made, at the relevant time, that the opportunity to view the face of the accused man was nothing but a fleeting glance. In civil cases, the aim might be to show that the claimant was able to work and lead a normal during a period when he said he was disabled.

In all of this, what is crucial is that witnesses going to court must ask questions and learn about the trial process and in preparing to give evidence they must also prepare for cross examination as the case can be won or lost at cross examination. Potential witnesses must demand careful pre-trial preparation that will anticipate some of the questions to be asked in cross examination, which sometimes seems to be a big surprise for the witness when he is told by his own lawyer, after examination-in-chief, that the other lawyer will now ask him some questions.

Right after the cross examination, the lawyer who conducts the examination-in-chief, if necessary, will re-examine the witness with the aim of clarifying issues raised in cross examination or to rehabilitate the witness.

Keith N. Bishop is an attorney-at-Law and partner in the firm of Bishop & Fullerton. He may be contacted by email at knb@bishopfullerton.com