If you're representing yourself (that is, you don't have a lawyer) in a Supreme Court trial, you might have to ask the other person's witnesses questions. This is called cross-examination.
There are two main reasons for doing a cross-examination:
- to have the witness give evidence that helps you and your case, and
- to ask the witness questions about any evidence they gave earlier that you don't think is correct.
The rules about cross-examination aren't as strict as they are for direct examination (when you question your own witnesses). For example, in cross-examination, you can:
- ask leading questions, and
- challenge the other party's evidence (that is, try to show that it's not reliable or correct).
Cross-examination questions should be based on a theory (an idea you have about the case and what should happen).
Here are some tips for doing a cross-examination:
- Ask leading questions. That means you give the witness the answer you're looking for in your question. For example:
- You forgot to pick up the children from after-school care on April 25, didn't you?
- Don't ask narrative questions (questions that don't have a single answer). Ask single, specific questions. For example:
- Instead of: Could you tell us everything you did that day?
- Ask: Did you pick up the children from school that day?
- Don't ask questions that are really about opinions (for example, don't ask things like "Do you think he was wrong to forget the children?"). The witness can only tell you what they saw, heard, or did.
See What is evidence and how do you present it in Supreme Court? for more tips about speaking in Supreme Court.
Example of a cross-examination
TV shows and movies usually make cross-examination look exciting and dramatic. It's not normally like that in real life. And it's always a good idea to stay calm.
Look at our sample affidavit. It has details about a case between a couple called James and Angela Smith who have separated and have some parenting issues to sort out. (They're not real people.)
Imagine they're in court and James has already given his own testimony (his version of the situation). This means Angela can now cross-examine him.
Here are some questions Angela could ask when she's cross-examining James. They're based on her theory that equal parenting isn't a good option for them because of James's work schedule.
Look at how Angela sometimes says something and then finishes off her sentence with a question to check that she's right. She also uses quite formal language for her questions. She doesn't speak the way she would with her friends or family.
- Please state your name for the record.
- Can you please confirm that you're the respondent in the Supreme Court file #________?
- You're working as an electrician for Inland Electrical Company, is that correct?
- Your boss's name is Peter Left?
- You started working for Peter Left in October 2010?
- Is it true that Mr. Left sometimes asks you to work on Saturdays?
- Mr. Left sometimes asks you to work after 5 pm, isn't that right?
- How often have you worked past 5 pm for Mr. Left in the last three months?
- How many of these times did you work until after 6:30 pm?
- Is it true that you've never refused to work the overtime that Mr. Left asked you to?
- Is it true that you've never started work as late as 9:30 am?
- Is it true that you've never finished work as early as 3 pm?
- The children attend after-school care during the weekdays when they're in your care, correct?
- They're often the last children still at after-school care when you arrive to pick them up, isn't that right?
- Your cousin, Gwen Smith, sometimes has to pick the children up from after-school care when you're working late, is that correct?
- How often in the last two months has your cousin had to pick the children up at after-school care because of your work schedule?
- Is it true that you've never left work to take care of a sick child?
- Is it true that you've never left work to take one of the children to an appointment?
- You've dropped the children off at school late six times in the month of May 2015, isn't that correct?
How do you challenge someone's evidence?
When you're cross-examining someone, you can challenge their evidence if you think:
- it's incorrect or false, or
- it contradicts something they said earlier.
You can challenge a witness's testimony or statement by:
- asking more questions,
- showing documents that disprove what they said earlier, and
- giving evidence to show that what they said earlier isn't what they're saying now.
To impeach (accuse) a witness based on an earlier statement that you think is inconsistent, you have to recommit them. This means they have to verify their earlier statement (that is, they have to agree it's what they said) before you can challenge it.
Sample questions for challenging a witness's statement
Here are some examples of questions you could use to challenge a witness's statement. They're based on Angela and James Smith's case again.
- In direct examination, you stated that you've only missed parenting time on two days since your separation in May 2015, correct?
- You spent three weeks in September 2015 on a business trip in the United States, is that right?
- You only saw the children for one week in September, is that right?
- You missed an entire week of parenting time in September?
Sample questions if you have documents or other evidence to challenge a witness's statement
If you want to use a document or other evidence to ask a witness about a statement you think is inconsistent, the document has to be admitted (accepted) as evidence.
To do this:
- ask the witness to verify the document (that means they have to agree that the document shows what they said),
- enter it as an exhibit, and
- give a copy to the court clerk.
Here are some examples of questions you could use to show that a witness has been inconsistent. They're based on the example of Angela and James Smith again.
- You testified in direct examination that the claimant never offered to give you make-up parenting time for the time you missed during your business trip in September 2015, is that true?
- Do you remember getting an email from the claimant on September 30, 2015, offering you make-up time for the week you missed while you were away?
- I am handing you an email dated September 30, 2015, sent from the claimant's email account. Can you confirm that the email address it was sent to is your email address? Is the email address it was sent from the email address you use for the claimant?
- Please look at the first paragraph of the email and follow along as I read it out loud. It says "Hello, James. I am emailing to see if you would like to have the children next weekend to make up some of the time that you missed while you were away for your business trip." Do you recall receiving this email?
- This email is followed by a reply email from your email account to the claimant's email account that says, "I'm busy that weekend. I'll just see them at my regularly scheduled time," correct?
- My Lord/My Lady, I'd like to offer this document as the next exhibit.
In this example, the document is an email. See Using documents as evidence in Supreme Court to find out more about what counts as a document and how to use documents as evidence.
Sample questions to challenge a witness's statement by pointing out their earlier inconsistent statements
Sometimes a witness might have made a statement in an affidavit or during discovery that's inconsistent with something they said later (the two things contradict each other).
If you want to ask the witness about their inconsistent statement, they have to verify the statement first. That means they have to agree that that's what they said.
Here are some examples of questions you could use to show that a witness has been inconsistent. They're still based on the example of Angela and James Smith.
- Do you remember making an affidavit on November 7, 2015?
- Is this the affidavit you swore?
- You swore it in front of Jack Sayward, a lawyer in Kelowna, correct?
- You knew when you signed the affidavit that you were swearing that the information in the affidavit was true?
- I'm going to read paragraph 9 of your affidavit out loud. If you can, please read along with me. It says, "I have never been charged with any offence of any kind."
- Didn't you testify in direct examination that you're currently in court proceedings because you were charged with driving under the influence of alcohol on July 15, 2015?