SQLFusion - Lead counsel responds to complaints re cross-examination

THE CORNWALL PUBLIC INQUIRY         L’ENQUÊTE PUBLIQUE SUR CORNWALL
February 14, 2007
TO ALL PARTIES
                                                                                                                  By Facsimile
Dear Counsel:
The Commissioner has asked me to write to you regarding his concerns about cross-examination of witnesses. The experiences with Mr. Silsmer [sic] and Mr Petepiece last week have distressed them, and have led other witnesses to reconsider their attendance – not because they do not have relevant evidence, but because they fear the harm to themselves of inappropriate cross-examination. Mr. Silsmer’s [sic] situation is perhaps better known to you; we have recently received correspondence from Mr. Petepiece, which I am providing to you.
I would like to put consideration of witness cross-examination in context. Witnesses appearing before this Inquiry are fulfilling a public service obligation. There are no civil or criminal consequences associated with the findings of a Public Inquiry. Witnesses who appear are part of a larger endeavour, which includes wide opportunities for the testimony of those with various views on the facts or the implications to be drawn from those facts. Commission Counsel will ensure that institutional witnesses will have ample opportunity to present their position.
We have seen many examples of skilled counsel asking probing questions of relevance in a tone of respectful professional intent. Clearly this is appropriate.
However, there are also situations occurring where questions are asked that have very limited probative value because they are not relevant to any identifiable institutional response. In some cases, any limited probative value is outweighed by the harm done to witnesses. Counsel are aware that the right to cross-examine is not unlimited. I want you to know that we will be objecting to questions where probative value is not established or where the harm to the witness outweighs the evidentiary value.
If asked about the probative value of a question, we expect counsel will be precise and concise. There should be a direct connection in terms of relevance in respect to specific questions, not a general statement that could apply to any and all questions. Counsel will be expected to give thought to their obligations to conduct well-researched cross examination that meets the tests of probative value.
While the professionals before this Inquiry have usually acted with courtesy, from time to time questions are framed, perhaps inadvertently, in a disrespectful manner. There will be objections to such questions and we will ask the Commissioner to direct withdrawal or reframing of questions.
We believe that addressing these areas will keep us on the right track. But, if they do not work, it will be necessary to seriously pursue other avenues of adducing evidence. Some of the additional measures may include the use of factual overviews, screens, video or audio links and written questions, all designed to strike the right balance between party demands and witness well-being.
On Monday, February 19, 2007, I will address the Commissioner on this matter. I am writing to you now so that you may reflect upon the issues and consider any submissions you may wish to make on February 19, 2007, in the afternoon.
Yours very truly,
Peter Engelmann
Lead Commission Counsel