The Importance of Cross-Examination Skills for Advocates in Legal Cases

Using examples, discuss the proposition that effective cross-examination is the key skill of an advocate in a legal case.

Cross examination is an important aspect of the process of the case because it allows the advocate to question the evidence put forth by a party to the case. In an adversarial system of justice like is practiced in the UK, this is important to test the veracity and accuracy of the evidence in chief and also to elicit facts and information from the witness that would help the case of the cross examining advocate. This essay discusses how effective cross-examination can be said to be a key skill of an advocate in a legal case. Using examples, this essay will demonstrate how skilful cross examination can help the advocate attain his goals of helping his client in the case.

There are three skills that an advocate should have; these relate to the theory of the case, speech, and cross examination. Altogether, these can be identified as the key skills of the advocates. Each skill serves a particular purpose for the advocate during the case proceedings. Cross examination serves the purpose of having the evidence of the advocate accepted and the other party’s evidence rejected and for putting the client’s case to the other party through insinuating questions. Conducting an effective cross examination requires certain skills on the part of the advocate. He should be organised in his cross examination, he should be self-controlled, and he should have the ability to strategise.

During cross examination, an advocate may be required to closely question any of the following kind of evidence: eye witness, alibi, corroborative, character, and technical. Each of these kind of evidence has certain weaknesses which a good advocate would expose through cross examination. Eye witness evidence may be subject to fallibility because of the personal limitations of the witness, or the poor viewing conditions as well as biases and personal stereotypes. It is through cross examination that the advocate can expose these weaknesses in the eyewitness testimony for his client.

Cross examination is a skill, which means that it contains certain elements that the advocate must be adept at in order to conduct an effective cross-examination. These elements involve the questioning strategy undertaken by the advocate, which may be in the nature of utilising, neutralising, or destroying the testimony or evidence of the individual being cross examined. These elements may involve closely questioning the individual or asking leading questions. These elements may include asking probing, insinuating and confronting questions of the individual. An example of destructive cross examination with a technical expert can be seen in the case R v Rouse, where the examination in chief of a Arthur Isaacs, an engineer “with very vast experience as regards fires in motor cars” was subjected to destructive cross examination by Norman Birkett for the prosecution where it was shown that Isaacs was a forensics amateur whose evidence could carry no weight. Norman Birkett created a doubt in the mind of the jury regarding the evidence on the car fire put forth by Arthur Isaacs by putting technical questions before him which he could not answer. This was done to create doubt in the mind of the jury as to the expertise of the technical witness. In another case where similar tactics were used to discredit the prosecution witness, the defence lawyers showed to the court that the witness was such a liar that not even his own brother would talk to him or trust what he says.

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1. A Boon, Advocacy (London: Cavendish Publishing 1993) 113.
2. Ibid.
3. Ibid.
4. Ibid 89.
5. R v Rouse [1904] 1 KB 184.
6. Christopher Allen, Practical Guide to Evidence (Cavendish Publishing 1998).
7. R v Rappolt (1911) 6 Cr App R 156.

Cross examination can be used to neutralise the effect of the evidence presented by a witness as was seen in the high profile rape case involving Kennedy Smith. In this case, the chief witness was the alleged rape victim’s friend who gave testimony of having picked up the victim on the night she was raped at Kennedy Smith’s beach house. The defence advocate, Roy Black, closely questioned the witness as to why she agreed to accompany a man her friend accused of rape into a dark house and then the lonely beach to look for her shoes. The credibility of the witness was put to doubt before the jury through this line of questioning. This is an important example to show how even the witnesses who believe in the veracity of their testimony can be discredited before the court and the jury. Indeed, most witnesses believe what they are saying to be true, however, a skilful cross examination can put forth the other side to them through questions that are neutralising or insinuating. This is seen in the Kennedy Smith case where the witness believed her friend was raped by the accused but was not able to satisfy the court as to why she was agreeable to go in the dark with the accused when she should have been afraid of him if she truly believed him to be a rapist.

To conclude, cross examination is an opportunity by the advocate to exploit the weaknesses in the evidence presented by the other side so as to present their own case in a more credible light. A skilful advocate uses cross examination to discredit the other witnesses, expose flaws in the evidence, and elicit information that helps them in their own case. In an adversarial system of justice, a cross examination is important to reveal to the court as to which side of the case has a more credible case. Advocates develop cross examination as a key skill, using organisation, questioning strategy and style to effectively question the evidence and witness for the other side and make a stronger case for their own side.

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Books

Allen C, Practical Guide to Evidence (Cavendish Publishing 1998).

Boon A, Advocacy (London: Cavendish Publishing 1993).

Matoesian GM, Law and the Language of Identity: Discourse in the William Kennedy Smith Rape Trial (Oxford University Press 2001).

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8. Gregory M. Matoesian, Law and the Language of Identity: Discourse in the William Kennedy Smith Rape Trial (Oxford University Press 2001).
9. Ibid.