“The examination of witnesses viva voce and in open court is of central importance in our system of justice”.[1]
Cross-examining witnesses is a fundamental skill of the barrister. It is a skill that has been exercised for centuries and will be exercised by lawyers for centuries to come. Indeed, there are anecdotal complaints from lawyer’s spouses in several jurisdictions that that lawyer’s resort to cross-examination for minor household disputes. Recent case law may be of assistance in conducting cases (or family arguments).
“I put it to you”
One of the main rules of cross-examination is the requirement to put one’s case to a witness for them to comment on. If this is not done, then the point cannot be relied upon in submissions. This is to prevent a witness being ambushed. This is an area where common law courts diverge.
It is the law in England[2], Australia,[3] New Zealand[4] and South Africa[5] but not in America. Having undergone advocacy training with two American law schools I can confirm that one of the fundamental rules of practise in that jurisdiction is that an attorney should never put the case to the witness in case the witness has a satisfactory answer.
There was once a question mark over whether this rule existed in Irish law.[6] The Supreme Court has confirmed it does.[7] The Court of Appeal held in DPP v PR[8] that:
“The aim of cross-examination is to challenge a witness’s evidence by putting matters to the witness in an effort to undermine the direct testimony or to demonstrate unreliability and to seek to elicit evidence favourable to the accused.”
This rule has recently been the subject of analysis by the Court of Appeal in by the Court of Appeal in DPP v PS.[9] There it found that:
“Counsel must make it clear to the witness in any given case that the witness’s veracity is under challenge, however, in certain circumstances it is not strictly necessary that the challenge be expressly stated in minute detail. Nonetheless, it must be made clear that the witness’s credibility is in issue and that the defence case is that the witness is not to be believed.”
In that case, counsel for the accused did not suggest to the witness that she was lying, however, it was implicit in her cross-examination that this was the defence case. Counsel for the accused was at pains to cross-examine the complainant in a respectful manner and to make every effort to avoid secondary traumatisation. The Court of Appeal found that:
“Many counsel at the outset of cross-examination of this kind, make it clear to the witness that the allegations are denied, (as occurred in the present case) and during cross-examination, suggest to the witness that the alleged incidents never occurred. In our view, in the present case, by repeatedly suggesting this to the witness, it was obvious that the underlying suggestion was that the witness was fabricating the allegations. In cases of this nature, where the allegations span a period of time, and, involve a minor, there are really in general, only two possibilities; that the offending happened, in which case a plea may be entered, or that the allegations are fabricated.”
The trial judge commented that it was never suggested to the witness that she was lying. The Appeal Court found that whilst this was factually accurate, it removed the heart of the defence from the jury. The conviction was quashed.
Cross Examination in Remote Hearings
The Coronavirus has greatly increased the use of remote hearings. This brings challenges for cross-examination. It is much harder to get a read of someone’s demeanour over a screen than in person. DPP v PB[10] was a criminal case which occurred during the pandemic. The complainant testified via video-link. The appellant’s argument that she had to be in court to be cross-examined was rejected by the Court of Appeal.
Cross-examination in remote cases was considered by the High Court in Irish Bank Resolution Corporation Ltd (In Special Liquidation) v Browne.[11] This was a commercial case. O’Moore J. rejected the argument that the credibility of expert witnesses couldn’t properly be assessed through a remote cross-examination, holding that:
“I believe that, from my own experience and what I understand to be the experience of other judges, I can assess the evidence of all the witnesses due to testify in this action, notwithstanding that this evidence is given remotely.”
Another argument that was raised was that a remote hearing would cause difficulties for the support team aiding counsel during cross-examination- particularly where there were a lot of papers in the case. O’Moore J. observed that a WhatsApp group was “nothing more than a modern version of the note handed to counsel while they were on their feet.”
And Finally, Leading Questions
Leading questions are powerful because they allow counsel to put words in the witness’s mouth and direct the evidence that is being given. A leading question is one which can be answered with a yes or no answer.[12] It can also be one which suggest evidence not hitherto given. If it is in issue whether defendant had a car, and this has not yet been proven in evidence the question “Can you describe the defendant’s car?” will be leading even if it is met with “a red fiat punto” rather than “yes”.
Leading questions generally cannot be asked in direct examination or re-examination but are allowed during cross-examination.
The Court of Appeal pointed out in DPP v MS (2) that prosecution lawyers cannot discuss with witnesses in advance what evidence they will give but if it is anticipated that a witness may inadvertently introduce potentially irrelevant or prejudicial material, the prosecution may, by agreement, direct the witness accordingly in advance of the evidence being adduced.[13] .
This was discussed recently by the Court of Appeal in Director of Public Prosecutions v SK.[14] There the relevant question was “Was anything said about experimenting?” The Court of Appeal held that in very rare cases, discharging the jury might be justified on the basis that a leading question has elicited irredeemably prejudicial inadmissible evidence, although not in this case.
The views expressed above are the author’s own and do not necessarily reflect the views of The Bar of Ireland.
[1] Per the Supreme Court in Phonographic Performance (Ireland) v Cody [1998] 4 IR 504
[2] Browne v. Dunn (1893) 6 R. 67, H.L. This is known as the rule in Browne v Dunn.
[2] Reid v Kerr (1974) 9 SASR 367, S.46 of the Evidence Act 1995 (New South Wales) and Evidence Act 1995 (Commonwealth)
[4] Section 92 of the Evidence Act 2006.
[5] R v M 1946 A.D. 1023
[6] Kennedy, H. Putting the case against the rule in Browne v Dunn. The Bar Review 2006; 11 (39): 43.
[7] See McNamee v Revenue Commissioners [2016] IESC 33, McDonagh v Sunday Newspapers Limited [2018] 2 IR 79
[8] DPP v PR [2020] IECA 68
[9] People (DPP) v PS [2021] IECA 311
[10] DPP v PB [2021] IECA 152
[11] Irish Bank Resolution Corporation Ltd (In Special Liquidation) v Browne [2021] IEHC 83
[12] Nicholls v Dowding (1815) 1 Stark 81
[13] DPP v MS (2) [2020] IECA 309
[14] Director of Public Prosecutions v SK [2021] IECA 90