How to face cross-examination as a defendant

Over the last few weeks we have seen a more than usually large number of celebrities being cross-examined in the criminal courts.

Barristers, and increasingly solicitors, are taught how to cross-examine. On the other hand tips on how to deal with being cross-examined – whether or not you are a celebrity – are not so easily found.

It is, of course, completely forbidden for a lawyer to “coach” a defendant. He cannot suggest answers that his client should give. Nevertheless before going into the witness box most barristers will offer a few words of advice.

What is said usually boils down to this:

“Look the jury in the eye, keep your voice up and your answers short and simple; oh, and remember that once you’re in the witness box you can’t talk to anyone about the case, and especially not to your own lawyers, until your evidence is completed. Best of luck.”

All sound advice as far as it goes, but it doesn’t go very far.

Sometimes of course cross-examination turns out to be ridiculously straightforward. The evidence is weak, the cross-examiner is feeble and the jury is sympathetic. Then the prosecution barrister looks silly, the defendant looks innocent and when he comes out of the witness box he wonders why he had all those nerves the night before.

But it is may well not be easy. Here is Harold Greenwood, a now almost forgotten alleged murderer from the early 1920s, describing the experience of fighting for his life in the witness box:

“It is an ordeal that can never be realized except by those who have been through it. After being worn out with some days of unparalleled strain in the earlier stages of the trial, the prisoner ‘goes into the box’. The eyes of the crowd watch every motion, the twitch of his face, and the fluttering of his hands. He knows that he will be exposed to a pitiless hail of questions from an expert in the art of interrogation. If he answers too fully he will be admonished to be more ‘direct’; if he answers briefly, a raised eyebrow or the inflection of a voice, the darting of a meaning look by counsel at the jury may influence their minds.”¹

This is often – as it was for Greenwood, who was acquitted – the most dramatic and critical part of the trial. The most celebrated cross-examinations of defendants are those in which they have been taken apart by the prosecution. That can certainly happen and you must hope that you are not the hapless victim. Nevertheless, cross-examinations can often fall flat, or be so aggressive that the jury start to feel sympathy with the unfortunate defendant fighting for his liberty.

In many cases the prosecution will attempt to damage you with a very early question.

Examples are not hard to find.

Dr Crippen – a man whose name has become a byword for calculating evil, but who in fact, according to recent research might have been entirely innocent – was, by general consent, fatally wounded by the first questions asked of him by the Attorney General. His case was that the bones found beneath the floor of his cellar could not have been those of his wife Cora, and that she had simply walked out on him, probably to return to America.

Muir: On the early morning of 1^st February you were left alone in your house with your wife?

 

Crippen Yes.

 

Muir She was alive?

 

Crippen She was.

 

Muir And well?

 

Crippen She was.

 

Muir Do you know of any person in the world who has seen her alive since?

 

Crippen I do not.

 

Muir Do you know of any person in the world who can prove any fact showing that she ever left that house alive?

 

Crippen I do not.

 

The cross-examination proceeded to highlight the complete absence of any attempt by Dr Crippen to find his wife, something that would obviously have been expected if she had simply left him, culminating in his flight to America with Ethel Le Neve disguised as a boy.

The poisoner Seddon, represented, like the more fortunate Greenwood, by the brilliant Edward Marshall-Hall KC, had no satisfactory answer to the second question asked of him by Rufus Isaacs KC, the Attorney-General. Read in isolation it sounds utterly innocuous, but it is generally regarded as the question that hanged him. Marshall Hall cannot be blamed: he had strongly advised Seddon against giving evidence.

The case against Seddon was that he had invited a neighbour, Mrs Barrow, to live in his house; then persuaded her to transfer her modest savings to him in return for living rent free in the house for the rest of her life. To ensure that this would not be an unduly onerous obligation he then poisoned her with arsenic. He was so mean that he gave her a pauper’s funeral.

Isaacs: Miss Barrow lived with you from July 26, 1910, to September 14, 1911?

Seddon: Yes.

Isaacs: Did you like her?

This was the fatal question. If he had liked her, why had he given her a pauper’s funeral? If he had not liked her then it made it all the more likely that he had poisoned her. The words of the transcript reveal his discomfort.

Seddon: Did I like her?

Isaacs: Yes, that is the question.

Seddon: She was not a woman that you could be in love with, but I deeply sympathised with her.

Don’t let me worry you.

Few cross-examinations are as effective as this, and sometimes advocates find the tables turned; though not very often, it has to be said, by clever replies. When the comedian Ken Dodd was tried for tax evasion he was able to see off the prosecutor, Brian Leveson QC, – later Lord Justice Leveson of the phone-hacking inquiry – with laughter. He was represented by George Carman QC, one of the greats of the late twentieth century bar, and his son Dominic later gave a vivid description of how the “industrious accountant” style of Leveson was trumped by Dodd, the popular comedian:

When it came to cross-examining Dodd … the Liverpool comedian ran rings round the Liverpool barrister, rebutting serious allegations with a mixture of sincere outrage and quick one-liners. In response, Leveson manifestly lacked humour. To borrow Ed Miliband’s phrase: he didn’t get it [I’m not actually sure if Ed Milliband can actually take the credit for coining that phrase].

More importantly, he lacked the common touch. As the late Sir Ronald Waterhouse, the presiding judge in the Dodd trial, told me in interview: “He lost the mood of the case, and he certainly lost the jury”. When Dodd was acquitted on all charges, much praise was heaped on my father’s courtroom performance. Little was said about Leveson, except that he was stunned by his failure to achieve a conviction.

Oscar Wilde tried a somewhat similar levity. It worked for a time when he was cross-examined by Sir Edward Carson, before he was eventually, and disastrously, caught out by his own wit.

 

Carson Do you know Walter Grainger?

Wilde Yes.

Carson How old is he?

Wilde He was about sixteen when I knew him. He was a servant at a certain house in High Street, Oxford, where Lord Alfred Douglas had rooms. I have stayed there several times. Grainger waited at table. I never dined with him. If it is one’s duty to serve, it is one’s duty to serve; and if it is one’s pleasure to dine, it is one’s pleasure to dine.

Carson Did you ever kiss him?

Wilde Oh, dear no.He was a peculiarly plain boy. He was, unfortunately, extremely ugly. I pitied him for it.

Carson Was that the reason why you did not kiss him?

Wilde Oh, Mr. Carson, you are pertinently insolent.

Carson Did you say that in support of your statement that you never kissed him?

Wilde No. It is a childish question.

Carson Did you ever put that forward as a reason why you never kissed the boy?

Wilde Not at all.

 

Carson Why, sir, did you mention that this boy was extremely ugly?

Wilde For this reason. If I were asked why I did not kiss a doormat, I should say because I do not like to kiss doormats. I do not know why I mentioned that he was ugly, except that I was stung by the insolent question you put to me and the way you have insulted me throughout this hearing. Am I to be crossexamined because I do not like it?

Carson Why did you mention his ugliness?

Wilde It is ridiculous to imagine that any such thing could have occurred under any circumstances.

Carson Then why did you mention his ugliness, I ask you?

Wilde Perhaps you insulted me by an insulting question.

Carson Was that a reason why you should say the boy was ugly?

[Wilde began several answers almost inarticulately, and none of them he finished. Carson’s repeated sharply: “Why? Why? Why did you add that?” At last the witness answered]:

Wilde You sting me and insult me and try to unnerve me; and at times one says things flippantly when one ought to speak more seriously. I admit it.

Carson Then you said it flippantly?

Wilde Oh, yes, it was a flippant answer.No indecencies ever took place between myself and Grainger.

If Oscar Wilde, one of the cleverest and wittiest men who ever existed, could not do it, then even if you are as clever as he was – which you almost certainly are not – you should beware of trying to outsmart your cross-examiner. From the witness box even the jokes of celebrated wags almost always fall flat if you are lucky and rebound to your disadvantage if you are not. Not infrequently, it is true, a stupid question can rebound against the cross-examiner, and sometimes a clever reply can turn the tables on him. But, to go back to the cricketing analogy, it is one thing to play yourself in and then smack the odd bad ball to the boundary; it is quite another to try to strike a six off every ball. That, as Kevin Pietersen never quite learnt properly, is a sure way to disaster.

Most defendants are less likely than Oscar Wilde to resort to virtuoso wit. Instead – and you may well fall into this category – you will be tempted to lose your temper. That, of course, especially in a case involving violence, is exactly what the prosecutor will hope for. To avoid it, it is absolutely essential that you consciously curb your anger. Expect to be asked the same question again and again in slightly different ways and be ready to answer it politely each time.

Try to avoid any speculating in the witness box about the motives of others. Almost inevitably your evidence will differ form that of the prosecution witnesses on some important points. You may be asked – though it is often a rather unfair question – whether you are “accusing them of lying.” In some cases, of course, you will be doing exactly that and if so you should say so, without hesitation.

More often, however, the reasons for the differences between your evidence and that of the prosecution witnesses are less clear. Perhaps memory – a fickle and unreliable helper at the best of times – has played tricks on one side or another, perhaps the differences can be accounted for by different vantage points for viewing the same incident. Whatever the reason, you generally cannot be expected to explain why other people may have given different accounts to your own.

The prosecutor might try all sorts of different ways to make you give an explanation. Don’t be fooled. He is not trying to help you, he is probably trying to make you say something which he can then hold up to ridicule in his closing speech. So you must refuse to be drawn into speculation: the answer “I don’t know” is not necessarily evasive, it is often accurate.

Try to keep your answers as short as possible. Nothing is served by waffling, you won’t get your points over any more clearly, you may say something stupid and circumlocutory procrastination will make you seem evasive. Of course, you may be being deliberately evasive in which case by all means waffle and avoid the question. But the jurors will notice it.

There may be times when the prosecutor seems to have you on the ropes. Perhaps you will appear to have been caught out fibbing, or exaggerating. Don’t assume that all is lost. Remain polite, stick to your guns – assuming you have been telling the truth – and you will get through it. Trials in which neither side has any good points are exceedingly unusual.

Once the cross-examination is over in an ordinary trial your own barrister is allowed to “re-examine” you. This does not mean he can simply ask you the same questions all over again. Instead, the purpose of re-examination is to allow questions to be asked with a view to clarifying mistakes and ambiguities that have arisen in cross-examination.

So, for example, if you had said in your evidence in chief that X was wearing a green top, and in your cross-examination you had appeared to agree that it was red, your barrister could perhaps ask you in re-examination:

You told the jury in answer to my questions that X was wearing a green top, but you then agreed with my learned friend that it might have been red. Can we be clear about it, what colour do you say X’s top was?

It was definitely green.

Why did you say in answer to my learned friend’s questions that it might have been red?

It looked red under the lighting in the bar, but once we got outside I could see that it was actually green.

You may well be feeling so punch-drunk by the end of your cross-examination that you simply want to get out of the witness box and back into the dock as quickly as possible. If so, don’t worry, everyone feels like that. Many advocates rarely re-examine anyway. Quite often it makes matters worse, simply giving the witness the opportunity to reinforce testimony that he had not realised was damning. What is more, the apparent need to “clarify” evidence already given can sometimes have the effect of weakening it.

Nevertheless if your advocate feels that some point that arose in cross-examination has been misunderstood or that you have not made yourself as clear as you should have, then here is a final chance to put matters right without the prosecution being able to harry you as you explain.

There is one last potential problem, and in some ways it can be the worst that you face: the judge.

Normally judges plays a small part in questioning witnesses or defendants. They are, of course, entitled to ask questions, but the convention is that they do so only to try to make the evidence clear. They are meant to be scrupulously impartial between prosecution and defence. Needless to say they often fall below, and sometimes far below, this standard.

One of the most notorious such episodes occurred at the end of the evidence of Major Herbert Rowse Armstrong, tried in 1922 for poisoning his wife and attempting to poison a rival solicitor with arsenic. Nineteen packets of arsenic had been found in his pockets when he was arrested, according to the prosecution they were there in readiness for his rival should the latter be foolish enough to accept any of Armstrong’s regular invitations to tea (according to Armstrong they were there to kill dandelions). However, for some reason the police had failed to find a packet containing another 2 oz behind the drawer of a bureau in his house. The missing packet was triumphantly produced by Armstrong’s defence at the trial, the point being that with it he could now account for all the arsenic that he had bought from the local chemist.

The point seemed a reasonable one, if a little two-edged. Armstrong, a dapper dresser right down to his yellow spats, had seemed a good witness in his own defence. He negotiated his cross-examination with aplomb and was about to leave the witness box when the judge, Mr Justice Darling stopped him. What followed was a verbal duel, literally to the death, between the early twentieth century’s nastiest – and smallest – judge, and one of its smallest, though perhaps not its nastiest, murderers². The tiny judge – “an impudent little man in horsehair, a … microcosm of conceit and empty-headedness” – meant to ensure that tiny Armstrong was hanged:

Just a moment, Major Armstrong …

And for the next 20 minutes Darling J proceeded to cross-examine the hapless solicitor on what he plainly regarded as the pitifully inadequate reasons for concealing the packet of arsenic from the police, as well as dividing the rest up into 20 separate packets, each containing just the right amount to kill a human being. When he left the witness box the horrible little judge had persuaded everyone that Armstrong’s account was ridiculous.

Even in his own time Darling’s behaviour on the bench was widely – though not universally – criticised and nowadays it is extremely unlikely that you would receive a grilling like that from the judge.

Even so, you should certainly not be surprised if the judge asks you some questions, and they may not be particularly friendly. They sometimes come at the end and sometimes in the middle of your evidence. And of course if you are not represented they are likely to come at the beginning too.

In days gone by- and possibly still today – the worst judges used to admonish defendants who seemed too cock-sure with the confusing admonition:

Don’t fence with counsel!

Occasionally this might be a reasonable request to answer questions rather than waste time arguing. More often, however, it was the stock in trade of the judicial bully weighing in to support a flagging prosecutor.

As always in court, remain as calm as you can and whether the questions come from the prosecution or the judge remain as calm as you can.

And once you have finished your cross-examination you have earned yourself the right – unless you have been remanded in custody –  to a very stiff drink indeed.

Just wait until the court day is over before you have it.

 

1John Bull April 22^nd 1922 reproduced in John Rowland’s Murder Revisited Published by John Long (1961)