Mind games

What are the advocate’s emotional drivers when conducting a cross-examination, wonders Professor Penny Cooper. The ability to continually assess the witness’s demeanour and adjust one’s questioning is crucial, she concludes.

In 1905 in The Art of Cross-examination, Francis Wellman wrote “It requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self-control; power to read men’s minds intuitively, to judge of their character by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject-matter itself; an extreme caution; and, above all, the instinct to discover the weak point in the witness under cross-examination.”


Which is the most difficult aspect of that to learn? Some might say “patience and self control”.  As human beings our behaviour is governed not just by our thoughts but by our emotions as well. Cross-examining can evoke strong emotions in the advocate. Good advocates will be aware of those emotions and keep them in-check. Sometimes there are mixed emotions. For instance the start of cross-examination may give rise to both apprehension (“Will it go to plan?”) and at the same time excitement (“Just think how great this could be!”).


Emotional drivers

I am not aware of any research into the emotional drivers of the cross-examiner but it’s interesting to ponder what they might be. Do we enjoy arguing?

In his book Emotions Revealed Dr Paul Ekman suggests that some people enjoy feeling anger: “They seek a good argument; hostile exchanges and verbal attacks are exciting and satisfying.” Do we like the feeling of getting angry – on behalf of the client and in a good cause, of course?

Cross-examination is a chance to expose the flaws in your opponent’s case theory, to impress instructing solicitors with clever questions, to expose a mistaken or lying witness, to come out on top – evidentially speaking. Cross-examination is exciting, it gets the adrenaline flowing and heart pumping faster. It can make you feel great. It can also make you feel lousy. As cross-examination proceeds frustration or annoyance may set in; perhaps the witness starts to explain away anomalies, or conveniently can’t remember a particular fact or they simply resolutely stick to their story whatever you ask.

The cross-examiner’s emotions may become apparent from the way he/she asks the questions. I remember one time in the High Court when I was cross-examining a man who I thought was odious; I was giving him a hostile “thousand-yard stare”. He stopped midway through my cross-examination and said to the judge: “I am not answering any more of her questions – I don’t like the way she is looking at me.” The judge, who hadn’t seen the look I was giving the witness, immediately told him that if he refused to answer my questions he would be held in contempt of court. That made me feel good, but was I showing a lack of consideration?


Cross-examination techniques

Of course sometimes witnesses get the better of their cross-examiners, even the brilliant ones. Geoffrey Robertson QC recalls in his 1999 memoirs, The Justice Game: “I played to the gallery; I deployed sarcasm, the lowest form of wit; and I asked a question to which I did not know the answer. Pointing an accusing finger to the young customs officer who had code-named the operation, I declaimed, ‘You called this operation “Tiger”, did you not, because that name was redolent of swaggering machismo?’ The officer replied: ‘Well, no sir. Actually, I named it after my cat’.” 

When George Carman QC was interviewed by Jeremy Paxman about his career he said: “... the horrid man image would come from the mistaken idea that the barrister is there bullying people all the time, leaning on them unfairly, taking advantage of them in the witness box. That’s the way to lose a case. If you have a simple, truthful person, you can never bully them into changing their story if they’re telling the truth. The technique to be used in questioning people will vary enormously. If they think they can stand up to it – like Aitken or like a Neil Hamilton, who had been a government minister, fluent speaker, intelligent man, barrister, and so on – those people can well take it on the chin and hit back. But of course, if you have a more simple soul, you don’t lean on them. You ask questions that may probe, but you don’t want the jury ever to think that you are being unfair or oppressive.”


Evaulation and readjustment

Each witness is different. The assessment is ongoing since the witness’s demeanour may change during cross-examination and if that happens, the cross-examiner may have correspondingly to adjust his cross-examination. It all goes to emphasise that 105 years on, Wellman is still right: “ingenuity”, “caution” and “self-control”. 


Professor Penny Cooper, barrister, is Associate Dean and Director of Continuing Professional Development (CPD) and Knowledge Transfer at the City Law School

 

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Penny Cooper

Penny was Called in 1990 and as a practitioner she specialised in child abuse cases. In 2002 she moved into academia and became a professor in 2009. Her current roles include co-founder and chair of The Advocate’s Gateway (part of the Advocacy Training Council), visiting professor at City University, visiting senior research fellow at the Institute for Criminal Policy Research and academic associate at 39 Essex Chambers.