Trying out witness examination for the first time can be intimidating. You're there to either make or break the witness, with only your skills, case theory, and wit. As Walter Sofronoff QC wrote, it is "a species of unarmed combat"; it's raw advocacy at its most exhilarating.
You can spend years learning witness examination properly, but it's always good to start with some of the fundamentals. Here are my top tips to set you on your way...
Start with the Basics
These include skills like speaking clearly and slowly, having good posture and eye contact, and trying to stamp out your 'gremlins' - things you subconsciously say or do while speaking, like saying 'um', or clicking a pen. Using plain English is important, as you're communicating with everyday people. Say "drunk" and not "intoxicated", for example, to save everyone from becoming confused or distracted by your vocabulary.
Also, be nice to witnesses. Professor Peter Lyons wrote, "the first aim is to strengthen your client's case by highlighting the good points through the opponent's witness and by putting facts that the witness will agree with..." – and they won't agree with you if you're being nasty!
Learn to develop a case theory. Put simply, that's the version of events you want to prove, summarised in four dot points. It should be your four strongest points that directly address the key elements of the relevant law. Use this to guide your questioning.
Examination in Chief – Top Tips
Most people agree that examination-in-chief is the harder of the two skills. You have to ask your witness questions in a way that enables them to tell their story to the court.
A good examination plays out like a story When examining your witness, you want people to be totally focused on your witness. Try and ask short, simple questions that allow your witness to tell a story - who, what, when, where, and why. Ask about events in chronological order.
Control the witness's storytelling While the focus isn't on you, you need to remain in control, so the witness says only the evidence you want them to. You can interrupt the witness where it's appropriate to do so. Also, try 'piggybacking' your questions: What did you see at the farm? A herd of cows and some horses. I want to ask you about the horses, where were they located?
Asking leading questions is not allowed Generally, a leading question suggests the answer, or assumes the existence of a disputed fact. You are allowed to ask leading questions about non-disputed matters. For example: instead of were you at the bar on the night of the 15th, ask where were you on the night of the 15th? Practice by asking a friend what their last holiday was like, without asking a leading question!
Cross-Examination – Top Tips
The general aim of cross-examination is to cast doubt over either the witness's recollection, or their credibility.
Start with COASTAL!
Case theory: Stick to it.
Objectives: Ask questions that will help your closing argument.
Arrange the facts: Ask questions in a careful order, to arrange the facts in a persuasive way.
Select your facts: Only ask about one or two key topics.
Tell the witness, don't ask: Say "You took the gun", rather than "Did you take the gun?" Never ask a non-leading question in cross-examination!
Arguing with the witness is foolish: It ruins your own credibility and persuasiveness.
Leave a good question for your last
Ask questions about facts, not conclusions
The main technique is to elicit the evidence in such a way that you invite the jury to make a conclusion, without you having to say it aloud. Compare the following examples:
You changed your statement because the defendant gave you a job, didn't you? No!
You're friends with the defendant? Yes. You gave a statement to police immediately after the assault? Yes. You've now changed that statement? Yes. You changed it three days after you took a job offer from the defendant? ...Yes. No further questions.
Follow the rule in Browne v Dunn
If your closing submission challenges the evidence of the witness on any material aspect, you must put your contrary allegation to the witness. It doesn't mean putting every conclusion to the witness - it simply means that if you want to raise a disputed fact in your closing address, you should ask the witness about your view of the fact.
Want to know more? Check out your law library, look on Google or YouTube for guides, or watch some competitions or real trials to see these techniques in action!
Enjoyed this post? Sign up for the Survive Law weekly newsletter for more.