Rule Number One; know your witness
March 3, 2021
Lee Speakman recalls a cross-examination gone wrong and highlights the importance of knowing your witness.
There is nothing quite like having a witness come utterly undone in the witness box. I remember the first electrifying piece of cross-examination I saw as a pupil. It’s a complicated set-up, but it’s worth setting out in some detail.
A character witness for one of the defendants in a murder trial was being cross-examined by the silk instructed by his co-accused. The character witness had been called to testify to only one discrete issue; to rebut the accusation that the defendant had stabbed the tied-up Asian victim after a robbery had been committed only because he was a racist, and it had not been within the contemplation of any of the other robbers that he would do it. The witness was a black man who had gone to school with the defendant. It was effectively a ‘I can’t be racist, some of my oldest friends are black’ kind of a defence.
The cross-examination, from beginning to end, went something like this;
Silk – “When you knew the Defendant at school, did he seem like the kind of a man who would commit a robbery?”
Witness – “No.”
Silk – “Did you know that the Defendant has pleaded guilty to robbery?”
Witness – “No.”
Silk – “People can change, can’t they?”
Witness – “Yes, I suppose they can.”
It wasn’t the most important part of the trial, and I doubt that it would stand out much to the silk in question. But to me as a pupil, it was sublime. I glanced towards the jury and saw 12 mouths agape at the speed with which the only point that the witness had been called to make had been utterly destroyed. Checkmate in 3 moves. And much like chess, it had the impression to the observer of being inevitable from the first move.
But it wasn’t inevitable at all. How on earth had it been allowed to happen? Why had the defendant called a witness that he barely knew and had clearly not adequately prepared? It was an act of desperation, hoping, rather than knowing, that the witness would help his case. Rule Number One; know your witness.
Sometimes it is difficult to know exactly what a witness is going to say. If they are an independent witness, or an insured driver, say, in a RTA claim, they will have their own lives to lead and don’t want to be badgered by inquisitive lawyers every hour of the day. An employee of a defendant company might be expected to have more time available to answer questions. But the cardinal rule must be, as much as is possible, talk to your witness for as long as you can. Get them to explain everything. Twice. A phone call is good, but I suspect a video call would be even better. And if there are the resources to warrant it, an early conference with counsel can be hugely beneficial to determine the areas of potential weakness. It is rather late in the day for a witness to tell you on the morning of a trial that they don’t in fact stand by a key part of their evidence.
The topic of witness statements is properly a subject for an article in its own right. But it’s worth remembering that by the time the trial starts, a good witness statement will never make up for a bad witness. And I’ll end with a comment reportedly made recently by the high court judge Sir Andrew Baker at a lecture on witness statements to post-graduate law students. He was apparently asked “What do you make of witness statements as a trial judge?”. His response was reportedly “I don’t believe that that is the witness’ evidence. I’ll find out what the real evidence is when I see them in the witness box.”
Lee has a busy personal injury practice. He regularly acts for both claimants and defendants in fast track and multi-track cases, and accepts instructions both privately and on a conditional fee basis