The Art of Cross-Examination
Updated: Apr 28, 2021
As a specialist in High Court trials, cross-examination was an integral part of Johann Kriegler’s legal repertoire. According to Kriegler, good cross-examination stems from having a good understanding of one’s case. This includes having a good grasp of the issues and identifying the strengths and weaknesses of the case. A good advocate must also be able to ascertain the particular purpose of each witness and then adapt their style of questioning towards the witness. For example, one should employ a different approach when cross-examining an expert as opposed to a member of law enforcement or a hostile witness as opposed to a cooperative one. Therefore, flexibility is key in cross-examination.
However, the most crucial aspect of cross-examination is the advocates’ performance in court on the day as well as how attentive they are to the proceedings. The word performance is used as Kriegler describes cross-examination as akin to theatre with the goal being to engage in a dialogue with the witness. In order to do this, Kriegler believes in making a friend of the witness and maintaining this tone throughout the cross-examination, regardless of how hostile the witness may turn. He believes that the contrast between an angry and rude witness and a polite and calm advocate will lead to the latter leaving a lasting and favourable impression on the judge.
In terms of question preparation, Kriegler does not believe in working out precise questions and going through the motions with the witness. Instead, he believes in focusing on the bigger picture by keeping in mind the point to be made and building towards establishing the point with every question asked. This method also ensures that an advocate is better equipped to deal with judicial intervention and respond to cues from the bench as Kriegler says that the good point is the point made by the bench and the key question is the question asked by the bench. In practical terms, Kriegler recommends ensuring that one’s notes are legible enough to be read from a standing position to make it easier to reference notes while maintaining eye contact with the witness and judge.
From the above, it is evident that a lot of thought and preparation goes into cross-examination. Therefore, in Kriegler’s own words, the key to good cross-examination is in fact no secret at all for it boils down to sheer hard work.
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