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Analyzing constructive or destructive approaches to cross-examinations: Smith

Lawyers should consider using either a constructive or destructive approach when cross-examining witnesses, says Toronto criminal defence lawyer Tyler Smith.

 “You have to know exactly how this witness can fit into your view or your theory of the case,” says Smith, a partner with Hicks Adams LLP. “A contextual approach is very important.”

Defence lawyers should have a theory of the case rather than just adopting the approach of some counsel, which is, “the Crown must prove it,” Smith says.

Sometimes the best cross-examination is none at all, he adds.

“If you can signal to a judge or jury that this witness’s evidence matters nothing to your view of the case, you can often do that with one question or no questions,” he says.

Otherwise, consider using either a destructive or constructive approach, Smith says.

In a constructive cross-examination, lawyers use the witness to strengthen their defence, he says. “You're not trying to destroy that witness’s credibility. You’re actually trying to bolster their credibility to establish things that are important for your case.”

For instance, you might want to build on some of the evidence of the Crown’s expert witness so you can later say to the jury, “Well, the Crown’s own witness agreed with these points,” he says.

For other witnesses, you can use the destructive approach, where you challenge the credibility or reliability of their observations, Smith says.

Be sure to tell the jury as early as possible why you believe the witness is dishonest or unreliable because an attack that seems to be for its own sake will not be perceived well, he says.

For example, you may want the jury to know the witness harbours animus toward your client over a child custody dispute, he says. “Let's say the witness made prior inconsistent statements. Before I put that to the witness, I want the jury to know that she doesn't like my client because he's trying to get the kids."

And be sure to adopt a genuine, calm and nice manner when asking questions, Smith says.

“Especially with juries, that plays very well because many people have this natural disinclination toward confrontation. It can turn the jury against you if they think you're being unnecessarily difficult or unfair or just plain mean-spirited in the way that you cross-examine the witness,” he says.

It’s also important to follow a fundamental rule, established in Browne v. Dunn in 1893, requiring you to confront witnesses with evidence you later intend to call to contradict them. This is so that they have an opportunity to respond, he says.

If you don’t follow this rule, the judge may caution the jury to be careful about accepting the evidence in question, he says. “That can really take the wind out of your sails.”

The judge could also allow the Crown to recall the witness at the end of the trial, so theirs is the last testimony the jury hears, he says.

Lawyers should take a different approach with juries than judges, he says.

Bear in mind that most jurors have never before sat through a trial, Smith says. “So a lot of things that judges consider to be mundane, the jury may well view differently.”

With a jury, for instance, you can exploit a police officer’s failure to include pertinent facts in his or her notes. Judges realize this sometimes happens, he says. “But you can make a lot more hay with that before a jury.”

Judges like brevity and getting to the point, Smith says. “With a jury, there's a little bit of entertainment that you want to inject into your cross-examinations and even into your objections.”

For example, if the Crown is leading a witness in a judge-alone trial, you might say, “Your honour, that’s hearsay,” Smith says.

“Whereas with the jury, I might say, 'Your Honor, Madam Crown is trying to lead evidence that was given by another witness. We all know that that is hearsay and is inadmissible in the court. So unless my friend is applying under some exception to have the evidence admitted you should rule that she's not entitled to lead this evidence,'” he says.

It's also important to have complete mastery of the materials, he says. “We all think we know what a witness is going to say when they take the stand, but no one knows for sure. And you have to have it alive in your mind if they contradicted themselves on a point.”

And lawyers should take a gentle approach with vulnerable witnesses like children, the elderly or serious crime victims, he says.

“If the lawyer can be professional and nice but still hit all the points that they need to hit with a vulnerable witness, then that's the way that you’ve got to go, because if the jury hates you they're probably going to hate your client and the road to conviction is much shorter,” Smith says.

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