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Cross-examination – art or science?

Cross-examination – art or science?

By Melissa Lirosi

Advocacy Courts Criminal Procedure Education 

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If you’ve ever studied criminal law or attempted to hone your skills in cross-examination you will most likely have pondered the question of whether effective cross-examination is an art or a science. We asked Josh Taaffe, partner of Doogue O’Brien George Defence Lawyers, his views on the age-old question and what he thinks lawyers should be doing to master this skill.

If you’re looking to sharpen your own skills, don’t miss our Cross-Examination Masterclass on 8 February, where you will hear from Josh Taaffe and two other highly experienced lawyers. They will provide you the essential techniques for successful cross-examinations and have the opportunity to practise your skills.

Is effective cross-examination an art or science?

The answer to this question has changed over the years. In the past cross-examination was considered an art. It was spoken of in terms of art in Francis Wellman’s famous work The Art of Cross-Examination – first published in 1903*.

Cross-examination is also often discussed in terms of rules – most famously by Professor Irvine Younger whose 10 commandments are the religious rules to be followed if one is to have any hope of learning the rudiments of the art of cross-examination. Ever since Professor Younger announced his commandments and popularised them in lectures around the United States, other lawyers have been criticising them for being too prescriptive, too obvious, for not offering enough positive guidance or on some counts being just plain wrong**.

In the text book Cross-Examination: Science and Techniques, Pozner and Dodd made their position on the question clear. They said cross-examination can be studied as a science, composed of individual techniques that can be studied and learned. To call cross-examination an art was to fail to study it properly and a failure of the obligation to teach it properly to others.

The reality is that trial advocacy is part science, part art. That is technique applied creatively. There are well-recognised techniques that can be learned and taught through the best methods of skills learning. Younger’s commandments are not the "rules" of cross examination, but the basics. Like all basic techniques, there come times when they must be dispensed with.

What will you cover in your Cross-Examination Masterclass?

In our masterclass, we will work with participants to develop the necessary skills to cross-examine. We will distribute readings and a case study in advance of the workshop and participants will then cross-examine volunteers playing the role of the witnesses in the case. We will provide advice and suggestions along the way. We have found that actually performing the task of cross-examination is the best way to learn the skill and improve it.

Further Reading

*Francis Wellman was a New York trial attorney who collected famous anecdotes in his book. The copyright has expired and his book is available online for free. It is still worth reading. http://www.theartofcrossexamination.com/

**Attorney Roy Black calls them Younger’s Ungodly Ten Commandments and critiques them on his blog: http://www.royblack.com/blog/irving-youngers-ungodly-ten-commandments/

You can register for our Cross-Examination Masterclass here.


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