Cross-Examination (Zimbabwe)
This is the process of questioning of witnesses by the other side after the testimony has been adduced in the examination-in-chief.
The purpose of cross-examination is to try to get the witness to add to, alter, qualify, amend or retract evidence given, to discredit his evidence and to elicit from him evidence favourable to the party cross-examining. Most cross-examination has one or both of these goals: to elicit testimony favourable to your own case and to expose weaknesses in your opponent's case. However, as James Morton points out, the best that the defence lawyer normally can achieve is to be able to point to so many major discrepancies in a witness's testimony as to prove that he is shown to be a thoroughly unreliable witness whose testimony is not to be believed. It is only in American films of the 1940s and, more recently, in poor soap operas that a witness will end by gasping, "Yes I did it! It wasn't your client."
The defence lawyer will be looking to pick holes in testimony of State witnesses and to catch them out in contradictions. In order to do this, he must keep track of what have said. He does not necessarily have to put all contradictions to the witnesses themselves; he can highlight inconsistencies when summing up.
Leading questions are allowed in cross-examination and the court should normally allow greater latitude than in examination-in-chief to the questioner, particularly where the questioner is an undefended accused. However, in Musindo 1997 (1) ZLR 395 (H) the court pointed out that it is a salutary practice and properly professional for a legal practitioner to refrain in cross-examination from putting as a fact any proposition unless he has instructions to that effect or has laid a foundation in fact for drawing the conclusion which he put to the witness. Gratuitously to put the lie to a witness, when there is no basis upon which to contradict the witness, is misleading and unprofessional.
Thorough advance preparation and planning on the lines of questioning to be pursued when cross-examining State witnesses is vitally important. Careful thought should be given to what the defence hopes to achieve by particular lines of questioning. If, for instance, the State case rests upon identification evidence, questions should be composed which will test and, if possible, cast doubt on the accuracy of the identification. In High Court cases the State is obliged to give summaries of what State witnesses will say when they testify. Study the State evidence carefully and consider what each witness will be likely to say when giving direct evidence. Identify any facts to which the witness may testify that are consistent with the defence case or facts which are inconsistent with the State case so that these matters can be highlighted during cross-examination. When the State case is put to X at the time that the defence lawyer takes instructions from him, X may well say things which provide ammunition for effective cross-examination of the State witnesses. For example, X may have pointed to facts which show that a particular witness has a grudge against him and may thus have a motive for giving false testimony against him. This fact can then be put to the witness during cross-examination. By such advance planning the defence lawyer is able to prepare questions which will be likely to assist his client's case and to avoid using the shotgun technique frequently employed in our courts where questions are asked on a random and indiscriminate basis which will often lead to answers prejudicial to the client's case.
In preparation for a serious and complex case James Morton says that what he calls "role playing" can be very useful. The lawyers in a firm can discuss what questions to ask witnesses. One of them can take the role of the advocate and another that of the witness. They can then try to work out the various permutations which can arise when a witness is cross-examined. It is good practice to use this technique if it is thought that a witness may deliberately try to be difficult. If there is no-one with whom the lawyer can play out the roles, he should still try to envisage the various answers a witness can possibly give. The line of questioning, depending on the answers which may be forthcoming, can then be worked out. Even after such assiduous planning, however, witnesses will from time to time come up with unexpected answers under cross-examination and the defence lawyer will have to think quickly how to continue his cross-examination.
Morton also advises that, if possible, the lawyer should try to go and inspect the scene of the alleged crime before the hearing. It is far easier to examine and cross-examine from a position of knowledge rather than relying on what you have been told, possibly inaccurately. This is particularly true in motoring cases where sometimes the police accident plans are far too sketchy or are misleading in certain vital details. The same will apply in street fights and theft from shops. An on-the-spot check will enable the lawyer to see what street lighting there is, if any, the position of the shelving in relation to the check-out in a supermarket, and so forth. He can also ascertain if it would have been possible for a witness to have been able to have seen the event from a particular location.
Morton further advises defence lawyers to keep their questions short, concise and easily understandable. They should not use long words to display their erudition as these words will often only confuse the witness. Avoid using technical terms in questions which the witness will not be able to understand. Refrain from using compound questions,that is questions which have several parts and which require a number of answers. Do not wrap up several questions into one and then expect the witness to give a single "yes" or "no" answer.
Defence lawyers should ask too few questions in cross-examination rather than too many. Morton says that if the defence lawyer has obtained the answers he wants and his position is now satisfactory, he should not try and improve the position by one last question. All this may do is to give the witness the opportunity of reconstituting the case against his client. He advises the defence lawyer to think what there is to be gained and then think again before asking any more questions. He gives the example of the barrister in Britain who pushed his luck too far when defending client on drunk driving charge. The cross-examination of the arresting officer went as follows:
- "You stopped the car and asked my client his name?"
- "Yes sir."
- "Which he gave perfectly properly?"
- "And his address?"
- "Yes sir."
- "And occupation?"
- "Yes sir."
- "And you asked him to get out of the car?"
- "Yes sir."
- "And he did this perfectly properly?"
- "Yes sir."
- "So from the time you stopped him he had behaved in no way which could cause any criticism?"
- "No sir."
- "And then he got into the back of the police car?"
- "Yes sir."
- "Again perfectly properly?"
- "Yes sir."
Counsel had laid a very solid foundation for client's argument that he was not drunk. But did not leave it here. He went on
- "He sat down in the back next to the lady in a fur coat?"
- "No sir, that was police dog Giles."
In any case, even in Britain, it is unusual for police cars to have ladies in the back in fur coats who were not being called to give evidence. It is strange that barrister did not have doubts about this question arising from his instructions.
Morton observes that it is often said that the defence lawyer should not ask any question to which he does not know the answer or at least can reasonably guess the answer. If the defence lawyer asks questions indiscriminately, he can end up getting answers which may well be damaging to your client's case. In reality, the defence lawyer will, from time to time, be obliged to ask a question to which he does not know the answer. Morton advises that the thought in the lawyer's mind before he asks a question to which he does not know the answer should be, "If, as I may, I get a wrong answer, will this be fatal to my client's case?" If the answer is "yes", then, however tempting it might be, the lawyer must not put that question.
As a general practice defence lawyers should be pleasant and courteous in dealing with a witness. Times when it is justifiable to get angry and raise one's voice are rare. When State witnesses are giving their evidence-in-chief, the defence lawyer should try to evaluate the witnesses. Have they testified in definite and emphatic manner? Are they likely to stick to this testimony doggedly or have they testified in a way which shows they are uncertain about what happened. Is it likely that they will readily concede that they might be wrong? Are they likely to be co-operative in answering questions from the defence or is it likely that they will be hostile and un-cooperative with the defence and will the defence have to adopt a firm and possibly aggressive approach?
The failure to cross-examine a witness on any matter generally implies an acceptance of his evidence on that point. If the point is disputed the questioner would be expected to put questions to the witness suggesting that the witness is mistaken or is lying on that point. The defence lawyer needs to keep careful track of the evidence given by the various witnesses in order to draw attention to contradictions in the testimony of an individual witness and contradictions between the testimony of different witnesses.
However, where an undefended accused in his defence outline has already asserted facts which contradict the witness, the judicial officer should not normally draw an adverse inference if the omits to cross-examine on the point. The judicial officer (if the prosecutor has not already covered the point) may put the conflict to the witness and invite his comments.
If evidence has already been given or will be given subsequently which is to a different effect from that stated by the witness the effect of that evidence must be put to him in cross-examination to enable him to admit, deny or explain it.
A person may not cross-examine his own witness. During his testimony a State witness may say something in evidence which may mean that X has some defence. He might say, for instance, that X was very drunk. It is impermissible for the prosecutor vigorously to cross-examine his own witness on this point in order to rebut this aspect of the evidence of the witness. The magistrate must stop the prosecutor if he does this. If the prosecutor thinks that his witness has become hostile, he must apply to the court to declare him to be a hostile witness, and only after the witness has been so declared, is the prosecutor entitled to cross-examine him. This topic is dealt with more fully in the section on "Evidence - Inconsistent Previous Statements and Impeachment".
In Mukombe S-29-91 the Supreme Court severely criticised a lawyer for his manner of cross-examination of witnesses. He had cross-examined them in an unnecessarily abusive, aggressive, abrasive and bombastic manner. The Court stated that the legal practitioner's duty to promote his client's interests must never transcend his duty to the promotion of justice and truth. He has a paramount duty to the court as an officer of the court to ensure that this is achieved. Witnesses should not be treated in an abusive and immoderate way.
However, it is sometimes necessary to adopt a firm, even somewhat aggressive, approach when dealing with a hostile, uncooperative or facetious witness. The aggressive questioning should not, however, be carried out in an insulting and abusive manner.
In Ndoro S-185-89 the Supreme Court stressed that a legal practitioner should not assail State witnesses with accusations unless he can adduce some evidence to justify or substantiate the accusations.
A checklist, intended as a guide to planning and preparation for cross-examination, appears in the American book The Trial Lawyer's Book Preparing and Winning Cases by Purver et al (Laywers Cooperative Publishing New York 1990). This checklist is reproduced below with aspects omitted which do not have relevance in the context of Zimbabwean procedures.
- Determine what the witness knows or purports to know about the events in question. Do statements indicate that the witness has an incomplete recollection of the event? Do the facts indicate a lack of detailed knowledge, or defects in perception? Determine whether you will challenge the witness's competency to testify.
- Visit the scene of the events in question. Examine the purported action from the places where the witnesses claim to have been during the events. Where appropriate, evaluate the witness's visual perspective of the events at issue, measure distances, examine lighting, and draw detailed diagrams.
- Study potential exhibits.
- Carefully study [each summary of State witness testimony].
- Investigate the witness's background for evidence of bias, motive or interest. Focus on aspects of the witness's experiences and circumstances for evidence of ability to perceive, remember, understand, and communicate the facts about which the witness may be asked to testify.
- Review the evidence in the light of [what you know and think happened].
- Anticipate the examination-in-chief.
- Establish a goal for the cross-examination. Select the two or three most important issues on which the witness may advance your case.
- Determine what type of witness you will be questioning. [Aggressive questioning may be called for if the witness is a criminal accomplice but this sort of questioning would be entirely inappropriate for a gentle, dignified, elderly witness.
- Determine whether you intend to cross-examine the witness at all. Some witnesses are so good that it is best to let them alone.
