LAWS13010 - Evidence and Proof

Topic 5 - Examination of Witnesses

1.0 Topic 5 Objectives

At the end of Topic 5, you should be able to:

● Describe the importance of proofing a witness, and the importance of not coaching that witness;

● Differentiate between examination in chief, cross-examination, and re-examination;

● Identify the rules binding each type of examination;

● Explain the concept of a “hostile witness” and the implications for examination of witnesses;

● State the rule in Browne v Dunn and its implications; and

● Identify and use the following types of questions: open, closed, leading, probing, rhetorical and hypothetical.

2.0 Introduction

In the eyes of the lay public, and in the eyes of many lawyers, the examination of witnesses is the heart of advocacy. In the popular media, lawyers are seen in this role at their most dynamic, pursuing witnesses and asking that key question, in the final moments of each episode, which collapses the opposing case or confirms their own. The examination of witnesses seems to be exciting; an opportunity for moments of brilliance.

In many cases, of course, this is exactly right. The best advocates are among our most brilliant lawyers. However what the popular media does not demonstrate is just how difficult the examination of witnesses can be. It requires a particular set of skills, a strong ability to “think on one’s feet” and an understanding and immediate application of the rules of evidence.

This week’s topic will dovetail nicely with the material you learn in your advocacy course. During advocacy, you will be taught how to cross-examine, how to

strategically work a witness so that they assist your case; in this course, and especially in this week, you will be taught the rules you must apply when examining witnesses.

3.0 Prescribed Reading

David Field, Queensland Evidence Law (2nd ed, 2011):

Chapter 6 to p 163 (Oral Evidence)

4.0 Reference Reading

Secondary material

● Mark Brennan, and Melissa Pearson, ‘Why Prepare Witnesses?’ (1998) October Law Institute Journal 73

● Peter Johnson, ‘Controlling Unreasonable Cross-Examination’ (2009) 21 Judicial Officers Bulletin 29

● Roderick Munday, ‘Calling a Hostile Witness’ (1989) 8 Criminal Law Review 866

Cases

Allied Pastoral Holdings v Commissioner of Taxation [1983] 1 NSWLR 1: A relatively boring income tax appeal case made famous because it proves the commonly-cited Australian reading of the rule in Browne v Dunn.

Mooney v James [1949] VLR 22: Clarifies that under some limited circumstances, leading questions might properly be asked during examination-in-chief, similarly, in some limited circumstances, leading questions in cross-examination might be improper. http://www.austlii.edu.au/au/cases/vic/VicLawRp/1949/6.html

Prince v Samo (1838) 112 ER 606. A case regarding a loan which the other party claimed was a gift. We read the case because it clarifies that a party cannot, during re-examination, open up new topics of discussion. http://www.commonlii.org/uk/cases/EngR/1838/207.pdf

5.0 Key Terms

Adduce: To adduce evidence is to place it before the court and have it admitted as evidence.

Arraignment: Arraignment is the process by which a defendant in a criminal matter has the charges formally read to him or her, so that the judge can be certain the defendant understand the charges he or she faced.

Coaching: Coaching is a process of advising a witness what evidence they should or should not give. Coaching witnesses is forbidden.

Cross-Examination: Cross-examination is that part of the process of testimony where the opposing party (the party which did not call the witness) asks the witness questions. The purpose of cross-examination is usually to discredit the evidence the witness has given during evidence-in-chief.

Evidence in Chief: Evidence in chief is the first evidence given by each witness after they are sworn in. During evidence in chief, the witness is asked open questions by the side which called them to give evidence, and is therefore invited to tell their story in general terms.

Hostile Witness: A hostile witness is one who is called by a party, but who then fails to assist the court by giving proper evidence. A hostile witness (also known as an adverse witness) may, on application to the judge, be cross-examined by the side which called them.

Objection: An objection is a claim by the opposing party that a question is improper, and should not be answered. A failure to object may be taken as tacit agreement that a question was proper.

Proofing: Proofing is the process of preparing and assisting a witness, to ensure they are able to give their best evidence once they are in court. Not to be confused with coaching.

Re-examination: Re-examination is a limited opportunity for the side that called a witness to ask additional questions, following the end of cross-examination, to clarify issues raised in cross-examination and to deal with any new matters first raised in cross-examination.

6.0 Preparation

On my desk, at work, is a photograph of the short track speed skater, Steven Bradbury, winning the gold medal in the 1000m speed skating event at the 2002 Winter Olympics. Most of you will know the story. Bradbury, the oldest skater in the field, made his way into the Olympic final, but recognised that he was never going to be as fast as the other four competitors. He decided, instead of taking risks and falling on the ice, he would hang back slightly and hope that they fell due to risk-taking. On the very final corner, all four of the other competitors crashed together and Bradbury cruised through, winning Olympic gold.

Steven Bradbury’s name has become synonymous with victory through extraordinary luck; or victory through the crashes of others. To me, however, Steven Bradbury’s victory is all about preparation. You see, the world saw those 90 seconds or so on the ice in Salt Lake City. Few people, however, stop to think about how he got there. He didn’t just show up and ask to have a go. For years and years, he practiced, trained, dieted, practiced, trained, and practiced some more. Thousands of hours of preparation brought him to the place where he could be sitting just behind the world’s best speed skaters in the Olympic final, waiting for them to crash. His win looked easy - but only if you just watched that final corner. His win was actually the result of hard, hard grind. He tells the story himself here: http://www.youtube.com/watch?v=WXrSsGFZVKA

The examination of witnesses is exactly the same. The courtroom process - and those final few questions which resolve the case - are simply the capstones on hours of preparation. The questions don’t come from nowhere. So, the first step in the examination of witnesses is the preparation of questions. Space does not permit a thorough discussion of the preparation process, but here are some things to think about:

● You should be thoroughly familiar with each witness’ statement;

● You should be thoroughly familiar with the consistencies and inconsistencies within each witness’ statement, and between the statements of different witnesses;

● You should have worked out your own “story”, the narrative of facts you wish to present to the court; and you should have anticipated the narrative your opponent is likely to present;

● You should be considering what facts each witness might supply, to assist your own narrative or discredit that of your opponent;

● You should have worked out, for each witness, the following:

○ What is the most helpful evidence they could give?

○ What is the most harmful evidence they might give?

○ What is the most likely evidence they will give?

Quite simply, the three most important aspects of successful oral examination of witnesses are preparation, preparation and preparation.

6.1 Witness preparation

One specific aspect of preparation is the preparation of your own witnesses for the process of giving evidence. Most people will find themselves in court rarely, if at all. For most witnesses, the prospect of giving evidence is intimidating, or frightening. They may be concerned about the repercussions which might follow; they may be worried about “letting everyone down”; they may start to doubt their own recollections. As a trial lawyer, you are dependent on these witnesses in order to present your case.

Consequently, it makes good sense to assist your own witnesses to prepare for the trial. This preparation process is known as proofing your witness.

The process of proofing witnesses will vary from witness to witness, depending on their own personal needs and characteristics. Some things to think about include:

● Practicalities. How is your witness going to get to court? Do they know where they can park? Do they know where they should go once they reach the court room? Do they understand that they will not be able to sit in the courtroom while others give their evidence? What should they wear to court?

● Procedures. You should explain to the witness some of the basic procedures they can expect. For instance, you should explain that they will be required to take an oath or affirmation; that you will be the first person to ask them some questions; that, after you have done so, the other party will cross-examine them; you should explain what will happen once their evidence is concluded.

● Evidence. You should go through, with the witness, the evidence they intend to give. Presuming they have given a written statement, it may be useful to work through the statement with the witness, perhaps indicating which areas of the statement you are most likely to ask them about. This process provides benefits for the witness - who gets, in effect a practice run - and also for you, because you obtain reassurance that the witness is, in fact, likely to give the evidence you are expecting.

● Cross Examination. If you are expecting that the witness will face aggressive cross-examination, it may be useful to role-play that cross-examination process, in order to give the witness an opportunity to start thinking about how they might handle various lines of questioning from your opponent.

You will notice that nowhere in this proofing process do you suggest, to the witness, what their evidence should be. Any effort to do this would be coaching

the witness, and would be unlawful. The witness must remain, at all times, free to give their own evidence, rather than that which you want them to give. Proofing, on the other hand, is simply a process of facilitating the witness giving their evidence to the court.

Activity

Which of the following statements, to a witness during preparation, would go beyond “proofing” and become “coaching”?

(a) We need you to provide as much detail as you can about the car you saw. Think about the make, the model, the age, the colour. Was it dented? Did it look well-looked after? Washed? Any stickers? All of this information is important.

(b) Stick to your guns, and don’t let the other lawyer make you doubt yourself.

(c) It would be very helpful to our case if you chose not to reveal that you once dated the accused.

(d) To me, the accused looks very physically strong and intimidating. If he looks that way to you, that would be something you might say in evidence.

Answer: (c) and (d) are coaching, because the witness is left with a clear understanding of what the lawyer wants them to say. (a) and (b) are fine. They do not guide the witness’ evidence.

During preparation, which of the following should you consider in relation to the opposing witnesses:

(a) the most damaging evidence they might possibly give;

(b) the extent to which they are likely to be regarded as reliable;

(c) whether they have any emotional or psychological vulnerabilities which might be exploited;

(d) whether there are aspects of the case where they cannot possibly be helpful.

Answer: You should consider (a), (b) and (d). Questions which overtly exploit a vulnerable witness are likely to be regarded as improper.

7.0 The Trial Context

Oral evidence, unlike documentary or real evidence, does not actually exist until the matter comes to court. It comes into being as it is spoken by the witness, in

the courtroom. Consequently, in order to understand how oral evidence is adduced, it is necessary to being with an understanding of the trial environment.

In this topic we will focus in a criminal trial; during your civil procedure subject you will learn more of the civil processes. Once you understand oral evidence in the criminal context, however, translating it into the civil context is very easy.

In this topic we will only deal with the actual trial; not with any of the preliminary court appearances.

7.1 The course of a trial

The first step in a criminal trial is that the defendant is arraigned, that is, the charges are formally read to them and the judge confirms that they understand the charges they are to face.

Once this process is complete, the defendant is required to plead either “guilty” or “not guilty.” If they refuse or fail to plead, a plea of “not guilty” will be entered on their behalf.

If the defendant pleads guilty, the judge will then proceed immediately to a verdict (finding them guilty) and to sentencing, both of which are discussed below.

If the defendant pleads “not guilty” then the trial itself commences. The jury is sworn in, and the prosecutor makes their opening address, in which they outline the offences of which the defendant is accused, and outline the evidence they intend to lead to demonstrate the defendant’s guilt.

The prosecution must then call all of its witnesses. This is the first stage in the process of adducing oral evidence. Prosecution witnesses are also cross-examined by the defence lawyers at this time.

Once all of the prosecution witnesses have given their evidence, the prosecution case is complete, and the defence is asked to advise whether they will be making a defence case. They are not required to do so - if the prosecution case is very weak, they may wish to argue there is no case to answer or they may simply wish to attack the strength of the prosecution case.

If the defence does not wish to make a defence case, then the prosecutor must immediately summarise their case, leaving the defence with the final opportunity to try to demolish the prosecution arguments.

If, however, the defence does wish to make a case, they will call their witnesses. This is the second stage in the oral evidence process. These witnesses will also be cross-examined by the prosecutor. After all defence witnesses have been dealt with, the defence lawyer will summarise, leaving one final opportunity to the prosecutor to close the case.

At this point, the judge will instruct the jury, who will then retire and return with a verdict of “guilty” or “not guilty”. If the verdict is “not guilty”, the defendant is released; if it is “guilty” the court proceeds to the sentencing process, which is beyond the ambit of this course.

7.2 The course of testimony

Now that we have a general understanding of the process, let us focus on what happens when each witness is called. The party calling the witnesses may choose what order to call them in; the witness is called, is sworn in, and then the side which called them asks a series of questions intended to help the witness tell their story. This is called the examination in chief.

Once the examination in chief is completed, the opposing lawyer is able to ask the witness questions, usually intended to show a somewhat different story. This process is the cross-examination.

During the cross-examination, it may be that new matters are raised, or that the witness becomes confused. In this case, the party which called the witness may request the opportunity to re-examine the witness, asking further questions to clarify answers given during cross examination.

Following re-examination, the witness will be dismissed.

The next few sections look at each of these examination processes in turn.

8.0 Examination in Chief

Examination in chief is the witness’ opportunity to tell their story to the court.

Let’s assume we have called a witness. We have read their statement, taken time to meet with them and proof them. We understand what they are likely to say to the court, and we believe the court needs to hear their story in order support our case. During examination-in-chief, all that we really need to do is provide the witness with the venue and the opportunity to tell their story to the court. The court, in turn, prefers to hear the witness’ story from their own mouth, in their own words, in their own way.

As a result, during examination in chief, the style of questioning is typically quite limited. The lawyer must restrict themselves to asking open questions which, as we will learn below, invite the witness to contribute a narrative rather than simply giving “yes” or “no” answers.

This sounds simple enough, but can be challenging for the lawyer! during examination in chief, the witness is, to a certain extent, “off the leash.” They might say things you are not quite expecting, or put them in ways you had not

anticipated. This, unfortunately, is simply part of the process, and again emphasises the need for careful proofing of witnesses.

An expert examiner-in-chief is something like a good TV interviewer: the questions may shape the general story being told, but in effect the questions merely prompt the witness, encouraging them to tell their story in their own words.

Occasionally, the court might allow a lawyer to ask more closed questions during examination in chief, usually to assist a witness who might be struggling to assist the court.

For example, a lawyer might ask “Did you go to the shops on 23 January? Did you see anything unusual there? Can you tell us what you saw?” The first two questions would probably just get “yes” or “no” answers, but it is quite clear that the lawyer is not just trying to bring the witness to the point where they can tell their story; the lawyer in making no effort to tell their story for them.

The other key situation in which a lawyer might be able to lead a witness during examination in chief is when another witness has made a statement or an accusation about the current witness. It seems only fair that the lawyer can put that statement to the current witness and ask for their views. In this case, the witness is not so much telling their story, as exercising a right-of-reply against the previous witness.

At the conclusion of a successful examination-in-chief, the witness will have told the court, in their own words, about the facts which support our case, or which undermine the case of our opponents. The next step, for the witness, is cross-examination.

9.0 Cross-Examination

Cross-examination is (usually) conducted by the party which did not call the witness. So, the other party has called a witness. They have carefully led their witness to tell their story. The story, if believed, could be very harmful to our case. Cross-examination is the opportunity to reduce that harm.

During cross-examination, unlike examination in chief, leading questions are permitted.

Remember last week, when we discussed the various limits on oral examination? Cross-examination will typically seek to take advantage of these limitations. So, we are defending a client accused of assault. The prosecution has produced a witness who, in evidence in chief, has claimed that she saw our client strike the victim with a fist. How might we use the limits on oral examination to undermine this clearly-damaging evidence?

Limits of perception - We might ask questions intended to question whether the witness really saw our client strike the victim. Questions might include:

● Where were you standing in relation to the defendant?

● What was the time, and what were the lighting circumstances?

● What were you doing immediately before the incident?

● What drew the incident to your attention?

● Were you close enough to hear anything which might have been said between the parties?

All of these questions tend to suggest that there may have been aspects of the incident which the witness simply did not perceive.

Limits of comprehension - We might ask the witness questions intended to suggest that she misunderstood what she saw. Questions might include:

● Could the defendant have been responding to provocation?

● Could the defendant have been responding to an immediate threat of violence by the alleged victim?

Limits of memory - if the witness’ story varies from the stories which will be told by defence witnesses, one might challenge the witness as to the quality of her memories. If she has failed to remember any key aspects of the scene, this may undermine the reliability of her evidence. Questions might include:

● Do you remember how many other people were in the vicinity?

● Do you remember what hand you say you saw the defendant strike the alleged victim with?

● Do you remember what the two men were wearing?

● Were the men carrying anything prior to the incident?

Limits of honesty - Finally, if we have any reason to believe the witness might have recast their story because they have a personal stake in the outcome, this should be exposed. We might, for instance, ask the witness:

● Is it true that you and the alleged victim are actually old friends?

● You say that you saw the two men pushing and shoving, and then you saw the victim on the ground. However you were behind them. Haven’t you just assumed that a punch was thrown, and landed?

You can see that successful cross-examination will introduce reasonable doubts as to the witness’ evidence, thus decreasing the likelihood that evidence can be used to secure an acquittal.

It will immediately be clear that cross-examination is likely to be uncomfortable for the witness. It is, without doubt, an adversarial process, and a good cross-examiner will do what they can to keep a witness slightly off-balance. However there is a limit. A cross-examiner is fully entitled to put their questions strongly, and to pursue their questions in the interests of their client. They are not, however, entitled to “torture” a witness with improper questions. They are not entitled to intimidate or harass a witness. They are not entitled to repeat a question several times simply because they did not like the initial answer. Finally, cross-examining lawyers are not allowed to be offensive or insulting towards witnesses.

9.1 The Rule in Browne v Dunn

Cross-examination is bound by one further rule, known as the rule in Browne v Dunn. This rule, established in 1864, states that if, in your summing-up, you intend to contradict the evidence of a witness, you must put that contradiction to the witness and give them an opportunity to respond.

So, let us imagine we are cross-examining a witness in a “drive-off” case, where our client is alleged to have fled a service station without paying for petrol. The witness, who was the service station attendant, is asked whether the defendant made any attempt to arrange for payment of the petrol, and they say “No.”

We intend to lead evidence, during the defence case, that our client in fact approached the witness, explained that he had left his wallet at home, and that he would return shortly. We intend to suggest that the witness had then refused to allow him to leave, whereupon he had left anyway, before returning ten minutes later to pay for the petrol.

In this case, doesn’t it seem fair that we should put our version of events to the witness? If we are going to argue, later in the case, that this witness got it completely wrong, it seems only reasonable to give the witness a chance to either tell us we are completely wrong, or to modify their story. The rule in Browne v Dunn essentially makes this mandatory. If we intend to argue that a witness got it wrong, we must put the witness on notice of that intention.

10.0 Re-examination

The final stage of the oral evidence process is re-examination, which is (once again) conducted by the side which called the witness. Re-examination is a limited opportunity to clarify evidence which was canvassed during the witness’ cross-examination.

For instance, let us assume we are prosecuting a person for a graffiti offence. In examination-in-chief, a prosecution witness indicated that when she saw the defendant, he had paint splashes on him, as though he had just been painting. In cross-examination, the defence lawyer asked the witness whether she had any way of knowing whether the paint stains on the defendant’s clothes were fresh or not, and she admitted that she could not tell. At this point, in re-examination, we might ask her to clarify the answer she gave in examination-in-chief, to say whether the paint stains were just on the defendant’s clothing. If she then answers “No, there was also paint on his face and arms” then we are obviously in a much stronger position. The clarification has effectively undone the misleading aspect of cross-examination.

Re-examination is bound by significant restrictions. It will be strictly limited to matters which were raised in examination- in-chief or cross-examination, because the other wise will usually not be permitted a second chance at cross-examination. It would hardly be fair to introduce completely new matters in re-examination, if the other wise was then unable to ask questions about those matters.

Activity

During which of the following are leading questions allowed as a matter of normal practice?

(a) examination in chief

(b) cross-examination

(c) re-examination

Answer: (b) and (c). Leading questions are not generally permitted during examination in chief.

During which of the following would a lawyer have to observe the rule in Browne v Dunn?

(a) examination in chief

(b) cross-examination

(c) re-examination

Answer (b). the rule in Browne v Dunn requires contrary propositions to be put to the witness during cross-examination.

11.0 Objections

That moment when the lawyer, in the movies, leaps to his feet and cries out “Objection, your honour!” is perhaps one of the best-recognised court scenes one can imagine. In real cases, objections are extremely important.

If, at any time, your opponent appears to be asking questions which breach any of the rules indicated above, it is vital to raise an objection immediately. A failure to do so is, in essence, a signal to the judge that you accept the appropriateness of your opponent’s question.

Consequently, while the judge is undoubtedly the most senior authority in the courtroom, the two advocates are responsible for policing one another’s compliance with the rules of oral evidence.

12.0 Dealing with Hostile Witnesses

The final important set of rules regarding oral evidence relates to hostile or adverse witnesses.

Imagine this: you have a key witness, who has provided an excellent alibi for our client. The two of them were, in fact, in gym class together at the time of the alleged offence. You’ve proofed the witness before the trial. He maintained his story. He’s good to go. What neither of you realised, however, was that he was at home on workers’ compensation, and shouldn’t have been anywhere near the gym. He comes into the stand, and the evidence runs like this:

“Did you spend any time with our client on the evening of 18 August?”

“I don’t remember.”

“Did you go to the gym on the evening of 18 August?”

“I don’t remember, but I don’t think I would have. I’m off work with a back complaint.”

“What were you doing on the evening of 18 August?”

“I’m not sure.”

The witness - our witness - has suddenly become hostile. In this situation, we can apply to the judge to treat the witness as a hostile witness, in which case we will be able to cross-examine the witness. In other words, we will not be limited to asking open questions, and our questions can put the witness “on the spot” rather

than simply inviting the witness’ story. More to the point, in doing so we can refer to previous statements made by the witness in which they described being at the gym, and question the witness on the discrepancy. This allows us to minimise the harm done by the witness’ change of story.

The concept of a hostile witness can be confusing. There are two traps to avoid:

“Hostile” does not mean “angry”. A hostile witness might be perfectly polite and give every appearance of being helpful. What makes them hostile, in this sense, is their refusal to provide the court with evidence which we know they can give.

A witness is not hostile just because they change their story. Regardless of how well we proof our witnesses, there is always the chance that they will tell the story differently under pressure in court. Their recollections may change. The limits of honesty may kick in. A simple change in their evidence does not make a witness hostile - the change has to be sufficiently significant that they are genuinely failing to help the court. Their duty is to the court, not to our case.

13.0 Types of Questions

Now that we have considered the procedural aspects of oral evidence, it is worth giving a little time to the actual form of questions. Again, this is material you will touch on during your advocacy subject, but it is also highly relevant to evidence.

13.1 Open questions

Open questions may be used at any stage during the oral evidence process; however examination-in-chief will be confined primarily to open questions.

Open questions invite the witness to tell a story. It is not usually possible to sensibly answer an open question in just a word or two. A question like “What did you see once you entered the shop?” is an open question: in response, the witness might speak a few sentences; they might speak for a few hours.

The challenge for a lawyer posed by open questions is that the lawyer loses a great deal of control over the evidence. A witness might begin talking, and might keep talking. Some of their evidence might be very useful; some of it might be a waste of breath; and some might be harmful.

The trick is to continue to guide the witness, with a series of open questions which gradually focus the witness’ story on the important areas and gradually draw them away from areas of danger. At this point, hopefully you can see why the importance of proofing each witness has been emphasised: a well-proofed witness is more likely to remain “on message” during their evidence.

13.2 Closed questions

Closed questions are questions which require a very short, perhaps one or two word answer (but not usually “yes” or “no”). They do not invite a story; rather they request a very specific piece of information.

Closed questions can be very useful (and will usually be permitted) if their purpose is simply to clarify something which the witness has stated in their narrative. Examples of closed questions include:

What colour was the traffic light?

Was the woman taller or shorter than the man?

How old are you?

Did he run to the left or the right?

13.3 Leading questions

Leading questions are a special variety of closed questions. They are generally forbidden during examination-in-chief, although they are permitted in cross-examination.

Leading questions require a “yes or no” answer. In a leading question in court, the lawyer essentially posits a statement or circumstance, and invites the witness to either accept the statement or reject it.

Contrast open questions with leading questions. During open questioning, the witness does most of the talking, and the narrative itself comes entirely from the witness. During leading questioning, the witness hardly says anything at all. Most of the talking is done by the lawyer, and the narrative is often entirely presented by the lawyer. This presents an interesting situation, because the lawyer might continue to present the narrative, even though the witness denies it at each step. What impression might this leave with the jury? Is there a danger that the jury will take away the lawyer’s narrative, rather than the witness’ denials?

How can we moderate that danger? Again, the process of objection becomes important. If our opponent continues to put propositions to our witness despite their continued denials, we might object that questions are improper, because they are merely harassment of the witness.

13.4 Probing questions

Generally speaking, the law only concerns itself with open questions and leading questions. However there are three other types of question which may useful to understand: probing questions, rhetorical questions, and hypothetical questions.

Probing questions “peel away the layers” of an initial answer, seeking more detail without actually challenging the answer given by the witness.

Probing questions are especially useful in three situations:

First, obviously, probing questions are useful when a witness (especially during examination in chief) has omitted some important detail from their narrative, and they need a “reminder.”

Second, probing questions are useful when a witness (presumably an opposing witness) is desperately trying to avoid the need to admit some fact which is important, but which they regard as embarrassing or otherwise wish to keep to themselves. The example on the powerpoint slide is a good demonstration.

Third, probing questions can be very useful if you believe a witness is telling outright lies. People telling lies seldom truly think their “cover story” through, and usually a little probing into what lies behind the story will make the lie fall apart. “What did you do on the night in question?” “I went to the movies.” “And what did you see?” “I think it was called The Odd Angry Shot.” What was the plot of the movie? “ ummm …..”

At this point the witness’ evidence of being at the movies begins to fall apart.

13.5 Rhetorical questions

Most people will be familiar with the concept of rhetorical questions from everyday life. We use them all the time. Where would you be without me? Do you ever stop talking? Or, my mother’s favourite, “Were you born in a tent?”

The main characteristics of rhetorical questions are first, that no sensible answer can be given and second, no answer is actually expected.

In normal daily conversation, rhetorical questions are quite unobjectionable. In court, however, they are problematic. the purpose of oral evidence is to obtain evidence from the witness. If a rhetorical question neither seeks nor values a response from the witness at all, does it have any place in the courtroom? If it is merely a sly way for the lawyer to have a “dig” at the witness, should it be permitted?

Sometimes a rhetorical question might just be part of the cut and thrust of advocacy. A rhetorical question might even be an amusing mood-lightener. However if your opponent asks a rhetorical question as a way of undermining your witness, you should certainly object.

13.6 Hypothetical questions

Finally, to hypothetical questions. Most questions which are put to witnesses are based on the facts of the case. A hypothetical question is based on pretend facts. As a result, hypothetical questions should be used with caution.

There is a common misunderstanding that hypothetical questions cannot be used in court. This is not so, and sometimes they will be very useful. Asking a witness “How would you normally …” is a hypothetical question, but usually quite a helpful one.

Hypothetical questions become dangerous and objectionable if the advocate uses them because he or she is unhappy with the real facts, and wants to pretend the facts are more helpful. For instance, let us assume a case in which the defendant has been charged with wounding a person with a knife. Prior to the knife-thrust, the victim had confronted the defendant and threatened to punch him. The question at hand is whether the use of the knife in response was reasonable.

Would you object to this question?

“Mr Witness, if someone came at you to attack you with their fists, and you knew they were a black belt in karate, would you feel it was appropriate to use a knife to defend yourself?”

I sure would object. The assailant in this case was not known to be a karate expert. The purpose of the question is simply to make the knife-thrust seem more reasonable by positing a more helpful set of circumstances. A good moment to object.

Activity

Which of the following is a closed question?

(a) You went straight home after you got off the bus, didn’t you?

(b) How many people were waiting outside?

(c) What happened next?

(d) Was it hot or cold?

Answer: (b) and (d) are closed questions. (a) is a leading question, and (c) is an open question.

Which of the following is a hypothetical question?

(a) You say you followed the young lady into the shop, hoping to talk to her. Was this because you fancied her?

(b) How stupid can you have been?

(c) So you did it just because he did it. If he jumped off the Sydney Harbour Bridge, would you?

(d) If he had offered to sell you the car, would you have bought it?

Answer: (d) is clearly hypothetical. It could be argued that (c) is hypothetical, although a better reading is that (b) and (c) are rhetorical. (a) is a probing, closed question.

14.0 Sneaky Tricks

Our final subtopic today rounds out our discussion of oral evidence. The focus here is on “sneaky tricks” you might encounter.

This material will not be examined.

Many advocates will, from time to time, resort to tricks in the hope that you will not pick them up and object in time. Some of the tricks are very effective. We will consider four.

1. Asking for ever-more detail. As we noted last week, oral testimony is bound by the limits of memory. Nobody remembers absolutely everything about any incident. As a result, if an advocate wants to make a witness’ memory look unreliable, all they need to do is keep digging until the witness’ memory fails them, then hit them with “If you don’t remember that detail, what else might you have forgotten?”

Remember, evidence must be relevant. If the detail is no longer relevant to a fact in issue, object.

2. Positing a premise. Sometimes questions will be based on underlying premises; and any attempt to answer the question will result in the witness accepting the underlying premise. The most famous of these is the question Yes or no: Have you stopped beating your wife yet?

If the person answers “yes” they admit that they have previously beaten their wife; if they answer “no” they admit that they are continuing to beat their wife. If, in fact, what they wish to say is “I have never done so, and therefore have no need to cease” then they will need to disobey the “yes or no” instruction.

In fact, the best way to bail out the witness is for you to object, and to gently point out that the underlying premise has not been proven.

3. Post hoc ergo propter hoc. This latin mouthful means “after it, therefore because of it”. It is the suggestion that because one event followed another, they must somehow be causally related (but without offering any actual proof).

Consider: “Witness, isn’t it true that the day after the money was stolen, you suddenly left Brisbane to spend a week in Rockhampton?” Clearly, in this case, the lawyer is asserting that the defendant fled to Rockhampton to avoid scrutiny in Brisbane; however there is nothing other than timing to suggest the travel was in any way related to the theft. Object, and require the other side to claim some relationship of cause and effect between the two.

Except, of course, if you think the client did run away to Rockhampton to avoid police … in which case, the last thing you want is for the prosecution to actually demonstrate the causality!

4. Reversing the onus of proof. This one is especially tempting to use against defendants. There are a thousand variations of “If you didn’t do it, who did?” and “If that’s not how it happened, then how do you say it happened?” Don’t be fooled - it is not the defendant’s job to prove that they didn’t commit the offence; nor is it their job to prove someone else did.

15.0 Tutorial Questions

Evidence in the movies: To Kill a Mockingbird

This week we look at perhaps the most famous court scene performance in movies: Gregory Peck as Atticus Finch in To Kill a Mockingbird. Begin watching at the following link, and watch sectors 40 through 47. You may however prefer to buy or rent the movie - this is the longest clip we will look at this semester. And if you haven’t seen it, it truly is one of the great courtroom movies.

http://www.dailymotion.com/video/xned9p_mayella-violet-ewell-from-to-kill-a-mockingbird-1962_shortfilms

Consider the following questions:

1. What types of question did Finch use when questioning Mayella?

2. How would you say Mayella’s testimony was affected by the limits of perception, comprehension, memory and honesty?

3. In this case, Finch is cross-examining a rape victim. Would any aspect of his cross-examination be improper (ignore the fact that he took evidence from the defendant half way through her testimony. We can allow the film-makers some poetic licence)?

4. Consider Mayella’s testimony in terms of the testimony given immediately afterwards by the defendant, Tom Robinson. If the case had been conducted in Australia, would Finch have met his obligations under the rule in Browne v Dunn? If not, what should he have done?

5. Do you believe Mayella had been coached? What makes you believe this?

6. Imagine that you were conducting a cross-examination of Tom Robinson, for the prosecution. What questions would you ask?

16.0 Debrief

In Topic 5 you have learned:

● the importance of preparation (remember Steve Bradbury);

● the particular importance of preparing, or proofing witnesses;

● the difference between proofing a witness and coaching the witness;

● the general course of a criminal trial, and the course of evidence for each witness;

● that examination in chief is an opportunity for the witness to tell their story, in response to open questions;

● that cross-examination is a chance for the opposing lawyer to test that evidence;

● that, in cross-examination, leading questions may be used;

● that if an advocate intends to contradict a witness’ testimony, the rule in Browne v Dunn requires them to put that alternate version of the facts to the witness;

● that re-examination is used to clarify evidence, but no new evidence may be admitted;

● that it is important to object to improper questions, because a failure to object is tacit acceptance;

● that hostile witnesses may be cross-examined (with permission from the court);

● that open questions invite a narrative;

● that closed questions require short, specific answers;

● that leading questions can usually be answered “yes” or “no”;

● that probing questions seek further information;

● that rhetorical questions don’t seek an answer at all, and are usually unfair;

● that hypothetical questions are based on “pretend” facts, and should be considered carefully; and

● that there are some additional sneaky tactics to watch out for.