Cross-examination can be an intimidating experience for the person being examined (the examinee). However, examinees can reduce their fear of cross-examination by better understanding the process and their role in it. This article provides an overview of cross-examination and identifies some of the basic issues that witnesses should be aware of going into a cross-examination.
Cross-examination may occur in a variety of contexts, including during trials held in court and in examinations for discovery in civil proceedings.
This article is generalized and applies to all types of cross-examination, although certain comments are, as noted, directed specifically towards either cross-examination at trials or examinations for discovery.
Overview of examinations for discovery
Examinations for discovery are pre-trial examinations under oath that occur before a court reporter who administers the oath and then transcribes all questions asked and answers given during the examination for discovery. All of the parties to a civil action are entitled to be at an examination for discovery, but no judge is present.
Examinations for discovery are called depositions in the United States
The main purpose of an examination for discovery is for one party to civil litigation to obtain information from the opposing party: the goal of the discovery is to obtain admissions from the opposing party that harm their case or help the examining party’s case.
The examining party has the right to read in at trial the answers given on examination for discovery. However, examiners can safely ask all types of questions on discovery because they are not compelled to enter the entire examination for discovery transcript into evidence at trial. Rather, the examining party can pick and choose which questions and answers they will read in at trial and omit the parts of the transcript that do not help their case. Generally, the party being examined must enter evidence to support its case through live witness testimony at trial and cannot simply read from the transcript of the discovery of its own witness. However, if the examining party reads in a selected excerpt of the transcript that gives an unfair representation of the evidence given on discovery, the examined party can request the court’s permission to read in other parts of the discovery transcript that provide a more accurate representation of the examination for discovery evidence on that issue.
Other purposes of examination for discovery are to allow the parties to assess how each other’s witnesses perform under pressure and to evaluate the credibility of the witnesses by comparing the answers given on discovery to other available evidence e.g. documentary evidence or the testimony of other witnesses.
Witnesses on examination for discovery are expected to have reviewed and be familiar with the documents relevant to their case prior to the examination beginning. Witnesses should also have reviewed the opposing party’s documents prior to discovery.
Witnesses on examination for discovery have a duty to inform themselves of facts which are relevant to the case and known by the party they represent, but which are not known by the witness personally. For example, the examiner may ask the names of all of the staff members in the accounting department of the company the examinee works for. If the examinee does not know all the names of all of those persons, and that information is relevant to the case, the examinee will be required to give an undertaking to make his or her best efforts to determine that information and provide it in written form to the examining party at a later date.
Examinees must tell the truth
Cross-examinations are conducted under oath. This means that the party being examined must swear, or affirm, to tell the truth. It is important for the examinee to obey their oath to tell the truth for at least three reasons.
First, lying under oath is a criminal offence:
“…every one commits perjury who, with intent to mislead, makes before a person who is authorized by law to permit it to be made before him a false statement under oath or solemn affirmation, by affidavit, solemn declaration or deposition or orally, knowing that the statement is false.”
(Criminal Code, R.S.C. 1985, c. C-46).
Second, lying is more likely to hurt the examinee’s case than help it. Often, the evidence of persons who don’t tell the truth is internally inconsistent or will be contradicted by documentary or other evidence. When this happens, the credibility of the examinee is undermined and this may result in all of the examinee’s evidence being disbelieved, even if they were untruthful on only a single point. Therefore, it is in the examinee’s interest to be entirely truthful on all matters.
Third, telling the truth is easier, and less stressful than lying; if you tell the truth you do not have to remember what you said last time.
Questioning style and tactics of examiners
Evidence is required to prove or disprove legal claims. Evidence may be provided in documentary or oral form. The purpose of cross-examination is for one party to litigation to obtain oral evidence that may help their case, or undermine their opponent’s case. Information obtained on cross-examination also provides leads for discovering further information that may support the examining party’s case, or undermine their opponent’s case.
Because evidence must be provided to prove all facts in a legal claim, examiners may ask some seemingly obvious questions. This is not because the examiner does not know the answer to the question, but because it is necessary to provide admissible evidence of that fact: generally, lawyers cannot simply ask the court to accept facts as true, but must provide evidence of those facts. Therefore, examinees should expect to be asked some obvious questions; such as whether a particular city is in a particular province.
In addition to asking questions with obvious answers in a neutral manner, examiners may ask questions without obvious answers in a manner that suggests that the answer is obvious, perhaps even using an indignant or incredulous tone. This may be because they are hoping to induce the examinee into giving a particular answer.
The examinee should not be swayed by the examiner’s tone or be led into agreeing with the examiner’s suggestions unless the examinee actually agrees with those suggestions. But, on the other hand, the examinee should not disagree with what the examiner suggests simply because they fear that agreeing with any of the examiner’s suggestions will be to their detriment.
Most importantly, examinees must always remember their obligation to tell the truth – even the best cross examiner cannot defeat a witness who is telling the truth.
Examinees should be on their best behaviour
No matter the style and tactics of the examiner, the examinee should not do any of the following:
o Get angry.
o Raise their voice.
o Be sarcastic or use an incredulous tone.
o Argue with the examiner.
Slow down, and listen
Examinees should listen carefully to the whole of each question as it is asked, without anticipating what the question will be. Once the question is complete, it is quite acceptable for the examinee to think for a few seconds before answering – this gives the examinee time to assess whether the question is fully understood before answering.
If the examinee needs to look at a document to answer the question asked, they should ask to look at the document before answering.
If the asked to comment on a document, the examinee should be sure to actually read it before answering, and not hastily assume that it is a document that they have seen before.
Information the examinee does not remember
If the examinee is asked about events or information that they no longer recall, they should not guess or try to reconstruct what must have happened. It is ok to answer: “I don't remember”. Of course, this should only be done when the examinee is actually unable to remember the event or information in question, and not as a means of avoiding a difficult question. Examinees must always remember their obligation to tell the truth.
If the examinee is having trouble recalling information, especially particular dates or other numbers, they should not guess in an attempt to be helpful. Examinees may provide estimates if requested to do so, but should be sure to emphasize that they are merely providing an estimate and not an exact figure.
Examinees should bear in mind the difference between "I don't know" and "I don't remember". "I don't know" is used for things the examinee does not know now and has never known. "I don't remember" is used for things that the examinee once knew, but has now forgotten.
As a general rule, the examiner (and not the examinee) asks the questions
Generally, examinees should not ask questions. It is the examiner’s job to asks the questions and the examinee’s job to answer those questions. But, it is acceptable for the examinee to ask the examiner to repeat the question or, if the examinee does not understand the question as phrased, to ask the examiner to explain the question in a different way.
Examinees should not answer questions with rhetorical questions. The following demonstrates this rule:
o Question: Did you punch him in the face?
o Inappropriate answer: Well, what would you have done in that situation?
o Appropriate answer: Yes.
o Alternative appropriate answer: Yes, because he was beating me up and I had to defend myself.
Examinees can explain their answers, but only where necessary
The “alternative appropriate answer” given in the example in the preceding section illustrates that it is acceptable for examinees to explain, within limits, the answers they give. Examinees should not go off on tangents and describe issues unrelated to the questions posed, but can briefly qualify and explain themselves where necessary to ensure that the answers given are not misleading.
Examinees should not volunteer information that was not asked for; consider the following example:
When did you first meet the defendant?
“Well, he and I both belonged to the Lion’s Club in North Vancouver and I had been invited by Charlie Brown to attend a dinner meeting. I was introduced to the defendant by the mayor who told him I was in the research and development of submersible oyster beds”.
That may sound like the answer to the question, but it isn’t. You were asked when you met the defendant. The answer to a question like that is a date, e.g. “April 1st 1997”. You were not asked how you met the defendant, who introduced you to him, what the defendant was told about your occupation on that occasion, where you met him, who took you to the meeting, or what organization sponsored it. Your answer did not tell the examiner what he actually wanted to know, but instead disclosed a great deal of information he did not have before, all if it under oath and transcribed.
(From Roberts, D., A client's guide to litigation: understanding the litigation process (Vancouver: Pilot House, 2005)).
However, some questions demand an explanation. A popular example of a question which should not be given a brief yes / no answer is: “Have you stopped beating your wife?” Answering “no” is obviously bad, and answering “yes” implies that the examinee did once beat his wife, which is also bad.
Examinees being examined for discovery should err on the side of not explaining their answers. An explanation given immediately may not be as well thought out as one given later on, and if an explanation is really required it could be provided at trial or could be addressed by the examinee’s counsel on re-examination once the opposing party’s examination is complete. Examinees should have pen and paper with them during the discovery so that they can write down notes of matters that they think may need to be addressed on re-examination – it is acceptable for the examinee to pause for a minute to make a short note. At the end of the examination the examinee can discuss with counsel what, if anything, needs to be addressed on re-examination. Delaying the explanation in this way gives the examinee time to consider the best way to fairly state the explanation. The explanation being provided in a different part of the transcript than the original question is not a concern; if, at trial, the examiner reads in the original question and incomplete answer, counsel for the examinee can request that the explanation given later in the transcript also be read in.
To a somewhat lesser extent, the above discussion in relation to explanations applies at trial as well because counsel for the examinee can re-examine the examinee at the end of the direct examination. But, at trial even more so than during examination for discovery, the explanation being given after the fact may be less convincing than if the explanation had been provided at the outset.
Examiners may ask similar questions in different ways, probably in an attempt to get a “yes” or “no” answer which they can then rely on as conclusive evidence of a particular point. If the examinee believes that a question has already been asked and answered they should say so and not answer the question for a second time.
After an examination for discovery, the examinee may wish to ask for a copy of the transcript so that they can review it to check for errors and to identify issues for which explanations may need to be given at trial. Indeed, the examinee, being more familiar with the facts of the case, may be in a better position than their counsel to spot incomplete or misleading answers.
Questions about previous conversations
Examinees should be careful when asked about previous conversations that they had. Hardly anyone can remember precisely what was said in previous conversations, particularly if they happened a long time ago. Therefore, unless they clearly remember the exact words of the conversation, examinees should generally describe the gist of the conversation and explain that they do not remember the exact words of the conversation.
Examinees should not say that they do not remember what was said just because they do not remember the exact words spoken. Indeed, an examiner may well be happy with the examinee saying that they do not remember what was said because then the examiner’s witness’s version of the discussion will not be challenged. Rather, examinees should describe as much as they can about the conversation, but explain as necessary the quality of their recollection.
If the examinee remembers some parts of a conversation and not others, any explanations as to why they have only partial recollection should be provided.
“Hearsay” is the term given to things that are heard from someone else: the witness “hears” it from a third person and now “says” what they heard: hear-say.
Generally, hearsay is inadmissible as evidence because it is difficult for the court to assess whether the third person was telling the truth when they spoke to the witness. To assess whether someone is telling the truth, it is generally necessary to observe their manner of speaking etc., which is impossible when what the third person said is being recounted through the witness.
The law of hearsay is complicated by a number of exceptions which apply to make hearsay admissible in certain circumstances. The examinee can leave objections on the grounds of hearsay to their counsel, but should be clear to distinguish between what he or she knows to be true, and what he or she simply heard from someone else.
Examinees should understand the basic principles of privilege, and, at a minimum, pay particular attention to the following two types of privilege:
o Solicitor-client privilege: Discussions with a lawyer for the purpose of seeking legal advice are private and should not be disclosed to anyone outside of the lawyer-client relationship.
o Litigation privilege: Documents created for the dominant purpose of preparing for litigation are private and should not be mentioned to persons outside of the lawyer-client relationship.
If, in answering questions, the examinee mentions privileged information then privilege may be waived over that information. This would likely be detrimental to the examinee’s case.
Counsel for the examinee should object if a question calls for disclosure of privileged information, and should interrupt the examinee’s answer if it appears that the examinee is about to divulge privileged information. However, examinees should understand the basic rules of privilege to minimize the risk of waiver occurring.
It is important to understand that solicitor-client privilege does not prevent examinees from being asked about events that occurred, or other facts, merely because the examinee discussed those events or facts with their lawyer. Solicitor-client privilege merely protects disclosure of what was discussed by the lawyer and client, it does not shield the underlying facts from discovery. For example, the fact that the examinee observed a car to be red does not become privileged merely because the examinee told his lawyer that he observed the car to be red. That the car was red is a disclosable fact. That the examinee discussed with his lawyer that the car was red is privileged.
The following example further illustrates how solicitor-client privilege may operate in practice:
o Facts: An employer fires an employee who had been sexually harassing other employees.
o Issue: The employment standards legislation requires that, when firing employees, the employer “reasonably believe” that harassment had occurred. [This example is entirely hypothetical].
o Question asked of the employer: Why did you fire the employee?
o Acceptable answer: I had received complaints from 16 other employees describing how they had been harassed.
o Inappropriate answer: My lawyer told me that I had the right to fire the employee.
The “inappropriate answer” discloses the contents of solicitor-client communications i.e. that the right to fire the employee was discussed between the lawyer and client. That answer may result in waiver of privilege which may in turn lead to the examinee being required to disclose further details of what was discussed with counsel. That may be detrimental to the examinee’s case. Some courts have held that where information is provided in response to questions which the responding party is compelled by law to answer, the disclosure will not be voluntary and so privilege will not be waived: e.g. Gower v. Tolko Manitoba Inc., 2001 MBCA 11. However, it is safer for examinees to simply avoid referring to discussions with counsel and simply state what they believed without referring to how they formed that belief. If the examiner asks how they formed that belief, counsel for the examinee will have an opportunity to object if appropriate.
The question asked in the example above is not one that counsel for the examinee would likely have objected to, and it is unlikely that counsel for the examinee would have had time to interrupt the examinee before it was too late. This illustrates the importance of the examinee understanding the basic rules of privilege.
The above example also illustrates the rule that only details of communications, and not facts, are privileged. Even if the examinee had discussed with his or her lawyer that 16 complaints had been received from other employees, it would be appropriate to answer the question by saying that 16 complaints had been received. However, as noted, the examinee should not describe the details of what was discussed with their lawyer.
In some cases, perhaps where a party wishes to establish that they acted in good faith and relied on legal advice, they will want to disclose details of what they discussed with their lawyer, but such disclosure should be carefully pre-planned in consultation with counsel.
The following examples illustrate how litigation privilege may operate in practice:
o Issue: How much money was transferred between bank accounts.
o Question: I understand that this occurred five years ago, but I would like to know if, without looking at any bank statements, you can accurately remember the total amount of money transferred in the six transactions that occurred on June 16?
o Acceptable answer: No (assuming the examinee does not actually remember).
o Inappropriate answer: No, but my lawyer has prepared a spreadsheet which calculates the total amount of money transferred.
Assuming that the spreadsheet was produced for the dominant purpose of litigation and otherwise meets the requirements for litigation privilege, the “inappropriate answer” set out above may waive litigation privilege over the spreadsheet prepared by the lawyer. If privilege over the spreadsheet is waived such that the spreadsheet has to be disclosed, it may reveal other information that undermines the examinee’s case. Therefore, the examinee should simply state that he or she does not remember the total amount transferred, and let their counsel introduce bank statement evidence to prove the total amount transferred.
Role of counsel for the examinee
Counsel for the examinee is entitled to object if the examinee is asked inappropriate questions. However, it helps if the examinee understands some of the common grounds of objection to minimize the risk of answers being given to inappropriate questions:
o Mischaracterization of the evidence / misquotes the examinee: for example, if the examiner says “Earlier you said …”, but in fact that is not what the examinee said earlier. Witness should not answer questions that misstate the facts, but point out what they believe to be the error in the question.
o Privilege: see discussion above regarding privilege.
o Relevance: all questions asked must be relevant to an issue in the proceeding (although, on discovery, relevance is given a broad scope).
o Opinion evidence: such evidence is generally not permitted from non-expert witnesses.
o Compound question: two or more questions asked at once.
o Hearsay: see discussion above.
Counsel for the examining party can also object to questions that may result in misleading answers:
It is, of course, trite law that questions on an examination for discovery are in the nature of cross-examination. Counsel should be allowed some latitude as to the form of question they wish to adopt. It is doubtful, in my mind, that ambiguous or misleading answers elicited on an examination for discovery would carry much weight if, at trial, counsel attempted to rely on them. This is not to say, however, that counsel for the party being examined should not be free, at the examination for discovery, to object to a question which will likely result in an ambiguous or misleading answer. Fairness demands that a witness be given an opportunity to clarify such an answer either at the examination or at trial.
(Midland Mortgage Corp. v. Jawl & Bundon, 1995 CanLII 290 (B.C.S.C.)).
If counsel for the examinee objects to a question by saying “I advise you not to answer that question”, the examinee should say “On the advice of my counsel, I refuse to answer that question”.
Interference with the process
Counsel cannot “assist” the examinee by interrupting the process. Apart from making valid objections, counsel for the examinee should speak very little. In a cross examination in court, a judge would quickly put an end to any interference by counsel for the examinee. However, the situation may be more relaxed on examination for discovery:
Counsel answering for the client or correcting examining counsel about the facts or the evidence … are the kinds of interjections that are theoretically improper but in practice are sometimes countenanced (or endured) by the examining party [during an examination for discovery].
(Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2006 CanLII 35612 at para. 7 (Ont. S.C.J.) [Iroquois Falls]).
However, counsel for the examinee in an examination for discovery should not answer questions for the examinee if the other side objects, and should not intervene to correct answers during the discovery. If the examinee gives an incomplete or misleading answer, counsel can correct it by re-examination or by subsequently sending a letter: Iroquois Falls at para. 40.
Counsel may interrupt the examiner if necessary to ensure that the examinee and counsel both understand the question asked: Iroquois Falls at para. 43.
Communications between counsel and the examinee while the examination is ongoing
At trial, the examinee and counsel for the examinee may not, without the court’s permission, communicate at all during breaks in cross-examination: Iroquois Falls Power at para. 12. However, cross-examinations at trial are generally completed within a relatively short period and so an absolute prohibition on communication between the examinee and counsel for the examinee is workable.
Examination for discovery
Because examination for discovery is not a true cross-examination as at trial (Iroquois Falls Power at para. 25.) the rules for discussion during breaks in examinations for discovery are not as strict as the rules for trial. The following sets out some guidelines for communications between the examinee and their counsel while examinations for discovery are ongoing.
When “on the record” (i.e. when the discovery is underway and questions are being asked of the examinee) counsel for the examinee should not engage in private conversations with the examinee. Certainly, counsel for the examinee should not pass the examinee notes or whisper to him or her: McLeod v. Cdn. Newspapers Co. (l987), 15 C.P.C. (2d) 151 (Ont. S.C.). Stated generally, counsel should not “interfere with an examination so as to advertently or inadvertently signal to the witness to suppress or pervert the evidence”: Iroquois Falls Power at para. 19.
Generally, during breaks in examinations for discovery, the examinee and their counsel should not discuss the examinee’s evidence (already given, or still to be given):
Not only must there be no interference by Counsel with the witness's evidence, there must also be an appearance that there is no such improper conduct.
(Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd. (1992), 72 B.C.L.R. (2d) 240 [Fraser River Pile & Dredge]).
If the examination for discovery is merely in a short recess (e.g. during a coffee break) then counsel should refrain from communicating with the examinee completely. If the discovery is adjourned for a longer period of time then counsel and the examinee should not discuss the examinees past or future evidence, but may discuss other matters related to the litigation: 13528 Ontario Ltd. v Wilson Avenue Inc., (1989) 42 C.P.C. (2d) 70, Fraser River Pile & Dredge.
Some limited discussion of evidence is acceptable between successive days of examinations for discovery that go on for many days. For example, counsel may discuss settlement options with the examinee in light of the evidence already presented: Fraser River Pile & Dredge. But, advising the examinee as to the answers to be given on resumption of the examination for discovery (“wood shedding”) is improper and unethical.
Generally, the intention to discuss evidence with the examinee during a break in discovery should be disclosed to opposing counsel beforehand and if there is an objection it may be necessary to seek leave of the court: Iroquois Falls Power at para. 43.
Examinations are normally recorded either electronically or by a court reporter. Either of those methods record only sounds. Therefore, the examiner and the examinee should help the reporter by obeying the following guidelines:
o Don’t talk over each other or interrupt each other; the examinee should allow the examiner to finish the question before answering.
o If it's a "yes" or "no" answer, the examinee should not go "uh-huh" or nod his or her head because that doesn't come out in the transcript. Gesticulations, voice inflections etc. do not show on the transcript.
o For questions and answers involving technical terms, the person first using the term should slowly spell out the term after first mentioning it.
o Do not speak while the court reporter is marking an exhibit – the reporter cannot transcribe and mark exhibits at the same time.
Typical questions that may be asked at the start of an examination for discovery:
1 Please state your name and spell it for the record?
2 And you are being questioned today with respect to…?
3 And this is in relation to [identify the case and the action #]?
4 And you appear today as a representative of …?
5 Are you authorized to give evidence in this discovery on behalf of [name of company the examinee is representing]?
6 What is your current position at [company] / how long have you worked there / who do you report to / in a general sense describe the scope of your responsibilities / educational background / professional seminars and training courses…?
7 For ease of reference, when I refer to [full name] if I use the abbreviation [abbreviation] you will understand that's who I am referring to? (repeat for other abbreviations)
8 Do you understand that the evidence that you will give today is important?
9 Do you understand the implications of your having sworn to tell the truth today?
10 So you understand that it is a criminal office to lie under oath?
11 Questions confirming that the examinee understands the technical issues associated with recording of the proceedings (see technical issues discussion above).
12 You have informed yourself on the subject matter of the case that we will be discussing today?
13 You have revised, with the assistance of your counsel, the documents that you disclosed in this action?
14 You have reviewed, with the assistance of your counsel, the documents that my client disclosed in this action?