Criminal Law

Preparation is key to cross-examination

By Staff

Preparation is vital to an effective cross-examination, Toronto criminal lawyer Joseph Neuberger tells

Neuberger, a partner with Neuberger & Partners LLP, says that once a case goes to trial, his cross-examination of Crown witnesses is the “most pivotal aspect” of the job he does defending his clients.

“Preparation, preparation, preparation is how I’d sum it up. That’s ultimately the key,” he says. “You need to know your case exceptionally well; better than any of the witnesses do.”

Neuberger says part of the reason it can take so long to get ready for a cross-examination is because he never looks at the questioning of one witness in isolation.

“You’re not only trying to elicit inconsistencies or weaknesses in the evidence of the person in front of you,” he says.

“The other part of it is developing a coherent and compelling defence theory that flows through the evidence of one, two or more Crown witnesses. You want to marshal along the defence, and put various aspects of the theory to each of them.

“Never ask a question for the sake of asking one. There always has to be a reason. It’s a very involved process, which requires a great deal of work,” Neuberger adds.

In the early days of his criminal defence practice, Neuberger says he watched one of his mentors conduct cross-examinations in four murder trials in quick succession.

“He told me that nobody quite knows what they’re doing until they’ve done 20 to 25 jury trials, and I think he was absolutely correct,” Neuberger says. “It takes years to hone the art and learn who your audience is.”

For that reason, he says he threw himself into a number of jury trials in his first year of practice.

“It taught me a ton, and gave me a fair amount of the knowledge, experience and skill I needed to develop a more potent cross-examination,” he says.

According to Neuberger, his style of a questioning may shift depending on whether the case is being tried before a jury or judge alone.

“You have to be cognizant of who you’re litigating to because they’re the ones who will decide the guilt or innocence of your client at the end of the day,” he says.

However, “the objective is always the same,” Neuberger explains.

“You need to establish all the weaknesses in the evidence that goes to the reliability of the witness, and advance your client’s defence,” he says.

“Whoever the trier of fact is, you need to keep them engaged and interested. Juries tend to like a bit more drama, and there are certain facts that will have a greater impact on them than on a judge.”

Neuberger says one misconception about a good cross-examination is that the lawyer has to be aggressive towards the witness.

“It’s rarely beneficial for a defence lawyer to take that approach,” he says.

That’s particularly true in domestic and sexual-related cases, which Neuberger frequently defends on behalf of clients. The complainant is often the central witness, and must be treated with care, he says.

“You want to proceed in a thoughtful, intelligent way, which doesn’t require badgering. Most of the time, you can achieve your goals while treating every witness with a degree of respect and civility,” he says.

“Having said that, sometimes a little force may be called for if someone maintains a position that is patently unreasonable or offensive, to try and show they are not credible.”

Putting too many open-ended questions to a witness is another pitfall some junior lawyers fall into during cross-examinations.

“Sometimes it’s appropriate, but you have to set it up so that the question comes at the right time, and for a specific purpose developed in the rest of the cross-examination,” Neuberger says. “Otherwise, aside from eliciting evidence that you may not want, it can also result in losing control of the witness.

“When cross-examining, the whole point is to maintain control, to ensure you’re getting to where you need to go,” he adds.

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