2024 while eventful for had been
a dry year for me in terms of trials. So, when the opportunity presented itself
for me to join a trial sometime in November, I went.
It was a criminal matter at
Magistrate’s court level, and I had immense fun. Both me and the lead counsel
did but most importantly it sparked a discussion between me and the lead
counsel on cross examination process itself. This was of course after the day
was done, after dinner and on the drive back to the City.
Intro
In a trial, the purpose of cross
examination is to attack your opponent’s case until their position and evidence
is rendered hollow, meaningless and not to be relied on by the judge and in
doing so, tilt the scales of justice in your client’s favour. Now, here
is a more experienced take on cross-examination (dude even wrote a book on
Advocacy which I strongly recommend). Owing to my still on-going studies in the
art of cross examination, I will not dwell on the techno-legal (definitely not
fengtau) side of Cross-Examination but for now I think it is sufficient to
remember the important rule that you must put your case to the opposing
witness. Failure to do so would mean that you have agreed with their
evidence. There are many local cases on this but being a poyo kind of
guy and because it is easier for me to remember because it is orang putih
name, just refer to the case of Browne v Dunn [1893] 6 R 67. Also, bear in mind
the difference between putting and suggesting something to a witness. There is
an article in MLJ about this by a prominent judge if I was not mistaken. Can’t
remember the name of the judge.
As how to put your case to the
witness, so far, I find that it is a blend of style and understanding of human
nature. I think the old fable on Wind and Sun having a wager on who can get a
guy’s jacket off is of application here. The Wind blew and blew. First a gust, later
in a great gale and the guy just wrapped his jacket closer against the cold.
The Sun did nothing but shine until the warmth had the guy took off his jacket
as a matter of course. The point is, there
is a difference between forcing and leading a witness to where you want them to
be on their own volition.
Of course, one should not be all nice
and cozy with an opposing witness throughout the cross-examination. In the
words of my teacher and mentor, you are not there to make friends with a
witness but, I might add you still can be friendly with a witness and
hand him the noose.
Conversational Style vs
Confrontational Style
Most lawyers either adopt the
hammer to submission style or conversational style. The best combines both.
Conversational style is about putting
the witness at ease. Speak to them like you would speak to a friend, minimize
or eliminate the legalese whenever possible. We lawyers tend to fall into
legalese because of the false assumption that legalese makes us more
authoritative to a witness (especially laymen witnesses) when all it does is
confuse them. They are already ill at ease with being on the witness stand
where the attention is all on them with lawyers asking all these questions. Get
them to overcome their nervousness of appearing in court, their distrust for
lawyers. Courtesy costs nothing and will
open doors. When done perfectly, the witness themselves will ask for the shovel
by which they will dig themselves a hole they cannot get out from.
For some reason, the hammer
approach is the mostly associated with criminal lawyers at least that is the
case in my observation. The approach combines intimidation with aggressiveness
both in language and tone of voice to make the witness yield and submit to the
cross examiner’s assertions. I am not a fan of this approach and I don’t think
most judges appreciate it either. There is already tension in the air, no need
to add further tension to the proceeding. Most importantly, if it goes on and
on, it tends to be annoying. But there
are many ways to skin a cat. If this works for you, go for it.
Yes-No Questions
I was guilty of this for quite some
time until it read that Chapter X of the Evidence Act 1950 did not provide the
cross examiner any means to directly control what kind of answer a witness
should give to any question put to them. This runs contrary to the prevalent
practice in court where the yes or no questions is the go-to form of cross examination.
I have seen seniors do it, I have seen DPPs do it. But just because (almost)
everyone does it does not mean you should or most importantly, it does not mean
it is right.
The best of all, is when the cross
examiner before even beginning his cross-examination cautions the witness to
only answer yes or no to all questions posed to him or her. I was guilty
of this before. Nowadays, whenever I hear this, I see it as an opportunity to
rattle the cross-examiner. An objection to this direction will disrupt the flow
and the train of thought of the cross-examiner because the yes or no approach
invariably boils down to total reliance on scripted cross-examination questions
where there is a planned sequence of questions where the expected answer is
either yes or no and no explanation or elaboration by the witness is allowed
(The standard line goes: Kalau ada penerangan nanti peguam awak akan mintak
penerangan lepas ni). Now, when your opponent objects to this line of
questioning, it would force you to reorganize your questions on the fly and
control the witness at the same time. Some practitioner can manage it, some
could not. Cheap shot? Definitely. Legal? Perfectly. Most important of all it
saves the court’s time and yours from a lengthy Re-Examination.
I understand why some
practitioners feel the need to totally rely on yes or no questions. It provides
them with predictability and predictability means safety. Yes or No questions
it is a set of training wheels for a newbie. But you can’t be using training
wheels your whole practicing life can you? Can’t be doing wheelie and weikang
with them training wheels on.
I would not say there is no place
for Yes or No question in a cross examination. There is. Its proper place
should be as the penultimate question to a particular factual or legal point
you are trying to make. The final fence post surrounding the witness and the
question should be drafted as such that the answer can only be yes or no
without having the cross examiner to direct the witness to answer yes or no.
Most importantly, if done right, it does not even matter whether the witness answers
yes or no as both answers will equally destroy his credibility and/or evidence
and/or made your point.
Abandoning the total yes or no
approach also presents another set of challenges because with answers and
explanations given by witness will sometimes veer towards unrelated matter not
raised in your original question. This is when you need to control to witness,
remind them to stay on point, interrupt them if you have too because if the
witness is allowed to talk on and on it will piss off the judge because you are
not in control of the witness and wasting the court’s time. But sometimes the
longer the answer/explanation, the more rope you have to hang them with.
Therein lies the challenge; between controlling the witness and having more
opportunities to destroy your opponent’s case. It takes a lot of practice to
balance between the two but you will get there eventually.
I put to you, I suggest to
you
These two used to be my favourite
way to drive home that final fence post for a particular issue in a cross
examination. Putting your case to the witness. Again as mentioned before
there is a difference between putting and suggesting to a witness. One is when
you have the evidence to back it up. The other is when you only have a plausible
theory. Kindly look for that MLJ article. I still can’t remember the name of
the judge.
Anyway, like I said, I used to utilize
the two above questions as a concluding question to a particular issue. One, it
makes it easier for me to identify later in the Notes of Proceedings when the
line of questioning for a topic has ended and to signal to the judge that I am
done with that particular topic. However, as it was pointed out to me by my
mentor the wording I put to you or I suggest to you is called signposting. It
can signal to the witness to answer no to the particular question.
Especially if the preceding questions are sloppily drafted
and asked. Nowadays, I tend to drop the signposting questions in favour of a
more natural language approach hence my preference to a more conversational style of
cross-examination. Either way, whether it is put or suggest it is imperative to make your case known to the witness during cross examination.
Have a cross-exam questions
list (‘’the script’’) but be prepared to ditch it
The are many ways to prepare for
cross-examination. I was told there are those who can do it on the fly (mad
respect bro!), there are those who wrote down expected answers instead of the
questions and work their way backwards. There are also those who instead of
answers or questions wrote down the issues or ingredients of the claim/ defence
they want to cover during cross examination.
As for me, it is not possible for
me to remember every single thing so it is only natural for me to write down
the cross exam questions or the script supported with list of documents with
the page number to be referred to as a way to prepare for cross-examination.
However, be prepared to go off script. Because things almost always never go
according to plan. Maybe, a witness can be a stubborn one which bears repeating
some questions or maybe you hit upon a simpler way to get the answers that you
want mid stream or maybe a witness could give you a long, damning answer
(damning to your opponent) in support of your case from your simple question
(what luck!). The more you do it the easier it become for you to develop that
agility in cross-examining. In short, have a script but learn not to be stuck
to it rigidly.
Not to overcook the steak
The more you practice the easier
it will get for you know what kind of answer you want to get out of a witness
in a cross-examination. I had never experienced the old days where Witness
Statements are not yet in vogue. All that I know is that Witness Statements
made it easier for you to know why a particular witness is called to give
evidence. Wily lawyers will try to catch you with a little surprise by way of
additional questions during EIC. But most of the time, you will know what to
get from a witness during cross-examination by referring to the Witness Statement, that is if you get them on time before trial.
The moment you get what you want
whether it is to prove or disprove the elements of the civil wrong or to
extract an agreement from a witness for particular factual point in their
knowledge, sit down. Try not to overdo it. Remember that an overcooked steak is
dry and flavourless. You do not want your case to be remembered as such. Let it
be juicy and done just right.
Outro
Cross examination while a evidential and trial procedure, it is at the heart of it deeply personal thing. The above is what works for me.
May be it will work for you, maybe it will not. Maybe you deeply enjoy it like I do, maybe you don't.
For
me cross-examination is the best part of a trial next to submissions. In
cross-examination you can see the full range of human experience and character.
The outright lies, the tears, the anger, the witty repartee, the smart witness
leaving the lawyer stumped. All sorts of things. I am but a poor vessel to
convey the whole experience. It must be experienced personally. For me it is
fun if done right and if it achieves its purpose. Done badly it becomes another
cross to bear for a judge, along with all bad advocacy he or she went through
that week and does not bode well to your case.
