A recent decision contains a brief dictum that counsel cross-examining cannot repeat a question asked before. It implies only narrow exceptions. (Kostic v. Scott 2022 ABQB 188)
Over about 55 years, I have read a vast number of transcripts of cross-examinations from England and Alberta, many by top-flight counsel and very experienced judges. Some of those cases were very high-profile, some famous. And I have read in detail a great many textbooks and court decisions about cross-examination. For this blog, I reread a number of textbooks from Commonwealth countries. This new suggestion to ban repetition surprises me. It certainly was unheard of in Alberta, in any procedural area, until a few years ago.
The traditional textbook is Harris’s Hints on Advocacy, which went through 18 editions, and was then reprinted at least three more times. The last edition says that courts give considerable latitude to counsel cross-examining. If the judge thinks that questions are simple repetition, the judge may seek to abbreviate the examination. But if that counsel has a plan, it is his or her duty to assert the right to examine in his or her own way, and its result will eventually justify that course. (See 18th ed. p. 86.) The 1907 and 2000 editions of Phipson on Evidence do not bar repeating a question.
A very famous and successful English cross-examination was conducted before the three judges of the Parnell Commission. They inquired into a sensational letter published in The Times. By that cross-examination, Sir Charles Russell showed that the letter was a forgery. Time after time he repeated questions.
Any general ban on repetition is hard to reconcile with two of the aims of cross-examination, well settled all across the Commonwealth:
to test the witness' credibility, strengths and weaknesses, and memory or assertion, and
- to elicit more evidence for the party cross-examining.
There are a host of reasons why counsel must repeat questions. Very often, it is doubtful whether the question was properly answered, however sincere the witness. No doubt about that can be left. Repetition is often needed to introduce a new context for the question, or to return to a previous topic. And after an initial answer, counsel very often introduces additional facts or reasoning to suggest a different answer to the question. Witnesses often withdraw their previous answers as the context and counsel’s manner change, or as the witness fears exposure.
Interrupting cross-examination by objections is highly disruptive, and on appeal is often a ground to order a new trial. Proper interruption must be for a good, strong reason, not some rigid formula or vague phrase.
The rule in Browne v. Dunn often requires that one party cross-examine certain opposing witnesses about a number of aspects of a certain factual assertion, though the witness will almost certainly deny each aspect. It is impossible to ban repeating questions, given this frequent duty to do just that.
The few recent Alberta decisions proposing to forbid almost all repetition cite a few other recent decisions. But those offer little policy or reasoning, refer to no principles, and cite few other cases. Some of the new cases inaccurately summarize previous decisions. The earliest case which any of them cites (not about cross-examination), says pretty well the opposite of the ban now postulated. No later case quotes that sentence.
Almost all the earlier cases cited are not even about cross-examination. They are about examinations for discovery. The aims and rules of discoveries and of cross-examination differ considerably. Repetition is especially needed in cross-examination. And even in discoveries, as Master Funduk said more than once, “Take my word for it” is not a principle.
There is only one previous Alberta decision about repetition in a cross-examination. But it does not suggest a flat rule. It is much more nuanced.
– Hon. J.E. Côté