Swiss Cheese: How Winning Cross-Examinations Win Trials

Winning cross-examinations don't wait for the accused to take the stand. They poke so many holes in the Crown witnesses' story that it falls apart like Swiss cheese. When that happens, the accused never has to say a word.

The burden is on the Crown

The Crown carries the entire burden of proof. It must prove every element of the charge beyond a reasonable doubt, and the accused has to prove nothing. So the defence doesn't need a competing story. It needs to show that the Crown's story can't be trusted. A skilled cross-examination does exactly that, and the case collapses under its own weight.

Inconsistencies are the holes

Cross-examination is built on inconsistencies. Some are inside one witness's account, where the 911 call, the on-scene statement and the station interview don't line up. Others are between witnesses, who describe the same moment in different ways. Each inconsistency tells the judge that someone is exaggerating, lying, or simply can't remember what happened. Enough of them, and reasonable doubt follows.

When the story doesn't fit the facts

Some of the biggest holes appear when a witness's words to police clash with their own circumstances. In one of my cases, the complainant told officers on scene that she wanted to leave the apartment and needed help. Yet her roommate was right there in the apartment, and she never asked him for help. The accused was nowhere to be seen. She could have walked out on her own two feet at any moment. Laid out in cross-examination, those facts left her claim of being trapped hard to believe.

Putting the client's side to every witness

Defence counsel also has a duty under a case called Browne v. Dunn. If the accused's version of events will contradict a witness, the defence must put that version to the witness in cross-examination, giving the witness a fair chance to respond. Skip it, and if the accused later testifies, the judge can give that testimony less weight and must factor the omission into the decision. Done properly, it protects the client's account from the very start.

Experience makes the difference

Effective cross-examination comes from years in the courtroom and meticulous preparation of every statement, video and police note. It's where trials are won.