Guide to Effective Advocacy in the Cambodian Criminal Justice System - Questioning Witnesses in Court

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Questioning Witnesses in Court

The questioning a party does of its own witnesses is called direct examination. The examination a party does of the opponent’s witnesses is called cross- examination.

Direct Examination

Direct examination of witnesses provides a party with the opportunity to present the substance of his or her case through witness testimony.

Direct examination is used to:

  • Introduce undisputed facts
  • Present a party’s version of disputed facts
  • Lay the foundation for admission and consideration of exhibits (evidence)
  • Enhance the credibility of witnesses

Direct Examination Techniques

Organize Logically Organize the points you wish to make through your witnesses in a logical fashion. Most people are better able to understand a series of events or other information if it is presented in chronological order. For example, a defense lawyer when questioning a witness of a robbery with serious injuries might put his examination together in the following order:

  1. Witness background (age, occupation, etc.)
  2. Description of scene of robbery
  3. What occurred immediately before the robbery
  4. What happened during the robbery
  5. What happened immediately after the robbery


There may be cases where chronological organization is not the best way to present the information. Whatever the order of examination points, the organization should be logical so the court can easily follow and better remember what the witness said.

Introduce Witness and Develop Background

Every examination of a witness called on direct examination should begin with questions whose answers introduce the witness and reveal relevant background information. The examination should result in the witness providing answers to the questions: “Who is he?” “Why is he here?” “Why should I believe him?” Example:

Q. Mr. Sophal, what is your full name?

A. My name is Chan Sophal.

Q. How old are you?

A. I am 22 years old.

Q. What is your profession?

A. I am a tailor.


Q. On the morning of September 5, 2003, did you see a man attacked near the corner of Monivong Boulevard and Mao Tse Tung Boulevard? A. Yes.


Through this short exchange of questions and answers, the examiner has identified the witness, indicated why the witness has been called, and provided some support for why he should be believed – he is an ordinary citizen who was an eyewitness to the event.


Background questions should be asked of all witnesses since credibility is always an issue. The amount of background information necessary (or allowed by the court) will depend on who the witness is and how important his testimony is to the case. It is wise to keep in mind that the answers to the questions will form the record of the case. In the example above, while it may be obvious to the trial judge(s) that Mr. Sophal is a young man, it will not be obvious to appellate court judges who may later attempt to understand the facts by reading the record of the case. If the age and physical characteristics of the witness are relevant to the case, the best way to ensure these facts make it into the record is to ask the pertinent questions. Providing such details also helps a judge “paint a mental picture” of the witness.

Use Appropriate Questions

Use short, open-ended questions that assist the witness tell his/her version of events in a logical, organized fashion.

Examples:

Where did you go that day?

How did you feel?

What did the man look like?

What happened next?

Do not use leading questions. Leading questions are questions that contain or suggest the answer.

Examples:

You went to the market that day didn’t you?

You were frightened weren’t you?

He was a tall man wasn’t he?

He attacked you, right?

Use Exhibits to Assist the Examination

Exhibits can be maps, diagrams, photographs, weapons, clothing or any other physical object which can be testified to by a witness and which can be used to prove a fact relevant to the outcome of the case. (The term “exhibits” includes all forms of physical evidence.)

Exhibits can make a witness’ testimony easier to understand. If a witness testifies, for example, about the location of people and objects at a crime scene, a listener can quite easily become confused or draw erroneous conclusions. If the witness is asked to place the people or objects on a map or diagram that can be seen by the listener, the testimony is much more likely to be followed and understood.

Exhibits can make a witness’ testimony easier to remember. Studies have shown that most people remember much more about the information they see than the information they hear. They remember even more about information they see and hear.

Exhibits may express more about an event than words are capable of expressing. Pictures of injuries often fall in this category. They also may have a greater emotional impact on the listener than words alone. In the English-speaking world there is a saying that captures this idea, “A picture is worth a thousand words.”

Exhibits can assist the fact finder to acquire a more accurate understanding of the facts. When one person hears another person describe a place, a person, or an object, his or her mind constructs an image of that place or thing. The image they construct may or may not resemble the actual place or thing. Other people who hear the description will construct their own, different images. Allowing witnesses to refer to maps, diagrams or photographs during their testimony can reduce this “distortion” between the actual place or object and the image created by a listener in his head.

Exhibits lend credibility to the witness’ testimony. An exhibit that supports what a witness has said makes the witness and the exhibit have greater credibility.

Example:


The victim of a domestic assault testifies that her husband hit her with a belt and left a bruise on her back. Hearing this, one judge on the panel has an image of a small bruise; another judge has an image of a large bruise. If the prosecutor shows a picture taken of the victim’s back after the attack, all of the judges will have one, more accurate, image of what the injuries really looked like. This could make a big difference in how they decide the case.

The best time to use exhibits is usually after the witness has completed telling the “action” part of his story. The witness can then be asked to describe and explain the exhibits and how they relate to the events that took place. An advocate who follows this approach will not interrupt and detract from the oral telling of the action. Once the action is related, the advocate can then ask the witness to describe the exhibits and ask questions that focus attention on the more important parts of the witness’ testimony.

Prepare the Witness

When possible, the examiner should prepare his witnesses for the examination. This means letting the witness know before hand what questions they will be asked on direct and what questions they might be asked on cross examination. It means, where possible, showing the witness, ahead of time, the exhibits they will be shown during trial so that they can better explain the exhibits to the court. If a witness is not given any advance notice of what will be covered during questioning, the witness may be easily confused and may perform poorly under the stress of open court questioning.


Of course, a lawyer must take special care not to “coach” a witness, by telling them what to say or what answers he or she wants to hear. This risks misleading the court and raises serious ethical questions about the conduct of the lawyer. Also, a witness who is coached comes across as less credible than one who honestly answers the questions and tells his or her story.

Cross-Examination

Whether dealing with the inquisitorial system (Cambodia) or the adversarial process (United States), cross-examination is said to be at the heart of the adversarial process. The two broad purposes of cross-examination are 1) to bring out information favorable to your case and 2) to damage the case of your opponent – this is called a “destructive examination.” A destructive examination is designed to discredit the witness or her testimony.

Remember that not every witness needs to be cross-examined. If an opposing witness has not damaged your case, there may be no reason to ask the witness any questions. Sometimes the best cross-examination is simply to say, “No questions of this witness.”

A destructive cross-examination is not necessary in every case and may only hurt your case when the witness has testified to facts that are helpful to you.

Structure of Cross-Examination

A lawyer planning a cross-examination should create an organizational structure to his/her questioning. The structure should limit the number of main points to three or four. This is because attempting to cover too much ground during cross-examinations risks diluting the impact of the main points and also increases the chances the examiner will lose control of the witness and the examination. The main points should be points that support your theory of the case.

Cross-examination should not be a repeat of the direct examination. This is a frequent mistake made by many lawyers. Asking the same or similar questions on cross-examination that were asked during direct examination, usually helps the witness solidify the testimony they gave on direct.

One of the most important rules of court trial advocacy is, “Never ask a question if you do not know the answer.” This is especially true of cross-examination. The purpose of cross-examination is to elicit facts that are favorable to you or to diminish the impact of the direct examination. It is not a time to go fishing for information. Ask questions you know the answers to or questions that will provide answers that you know you can handle without hurting your case.

Do not argue with the witness. Because cross-examination often puts the questioner in a confrontational frame of mind and because in many cases the witness is in fact antagonistic, it is easy to slip into argument. This is not only unprofessional but is likely to be counterproductive. The more effective cross-examinations are those in which the examiner is in control of the questions, and of his/her own emotions. The best way to avoid becoming argumentative with a witness is to organize and structure your examination carefully.

A cross-examiner should normally avoid asking the witness open-ended questions that ask the witness to “explain”. Questions that ask “what,” “how” or “why” give the witness a chance to give testimony that is damaging to the examiner’s case. When a witness is asked a question that allows him to “explain” rather than provide a simple answer, the cross-examiner loses control of the examination. Cross-examination is about control. Remember that the direct examiner can ask these types of questions of the witness on redirect if he or she feels it necessary.

Style of Cross-Examination

During direct examination, the examiner usually tries to maintain a secondary role to the witness. In cross-examination, however, the examiner should attempt to play the main or dominant role. The attention of the fact finder should shift from the witness to the examiner. The cross-examiner can make this shift occur by using certain techniques, such as asking leading questions. These are questions that suggest the answer, and normally call for a yes or no answer.

Examples of leading questions are:

Q: Ms. Tiri, on June 28, you owned a bicycle didn't you?

Q: You hit the man with your fist, isn't that right?

Q: You were drinking liquor that night, correct?


You can also make your questions leading not by your language but by your intonation and attitude. Example:

Q:Mr. Vanny, you were assaulted at around 11:00 p.m.?

A: Yes.

Q: It was December 5, wintertime?

A: Yes.

Q: It was nighttime?

A: Yes.

Q: The sun was down?

A: Yes.

Q: The stores were closed?

A: Yes. Most of them, I think.

Q: Not many cars driving around?

A: Not at that time of night.

Q: You said during your direct testimony that there was light from the streetlights?

A: Yes.

Q: And those lights were located at end of each block?

A: Yes.

Q: But there weren’t any streetlights in the middle of the block?

A: No.

Q: And that is where the robbery happened, didn’t it?

A: Yes.


In the short piece of cross examination above, the examiner has successfully built a factual basis for his argument that the lighting conditions were too poor for the victim to see and accurately identify his attacker. In such an examination, the examiner might consider having a photograph of the scene available to show to the witness at the right moment during the examination. If the witness claims that there were streetlights in the middle of the block and the photo shows that there were not, the witness’ recollection will be proven faulty. This may cause the court to question other aspects of the witness’ recollection, which may lead to the court finding his identification of the defendant unreliable. Ask short, clearly understood questions that move the witness bit by bit toward giving you the information you seek. In the example above, the examiner did not ask, “You really didn’t see the man who robbed you, did you?” If he had done that, the witness would probably have given an answer that the examiner did not want to hear. The questioning style he used helped him draw facts from the witness that he could later use to argue that the lighting on the scene was not good enough for the victim to make a reliable identification. Keep control over the witness. In Anglo-American trial proceedings, one method lawyers use to control witnesses is to object to the response of a witness that does not directly answer the question posed, then ask the court to order the witness to give a more direct answer.

A less formal method of exerting control is simply to use the witness’ fear of looking foolish or providing false information to the examiner’s advantage. If the examiner carries himself with confidence and the questions are delivered with certainty, the witness will often adopt a more submissive, less antagonistic attitude. This will help the examiner control the witness and get to the information that is helpful to his case.

Use a style that is natural to you. There are many styles of examination and presentation that are effective. While American movies may give the impression that a “dramatic” style is desirable, in reality, most judges are not impressed by overly dramatic presentations. Every advocate should develop a style that is natural for himself or herself, a style that he or she is comfortable with.

Bringing Out Favorable Information

When another party’s witness possesses information that supports a party’s case and is consistent with its theory of the case, the cross examiner should bring out this information from the witness. This should be done at the beginning of the cross-examination. If the examiner is pleasant and polite in her questioning, this will cause the witness to relax and be more cooperative. If the examiner needs to ask questions that discredit or challenge the witness, she can do this later in the examination, after the witness has given the favorable information the examiner seeks.

It is very rare that a witness’ entire direct examination is damaging to a party’s case. Usually the witness gives some information that is helpful. It is often helpful to a cross-examiner to have the witness repeat those facts that are favorable to their case. Having the witness repeat favorable facts improves the chances that the judges will remember those favorable facts when they are making their decision.

It may be that the other party’s witness can corroborate, or support, parts of the cross-examiner’s case. It may be that the witness possesses certain facts that support statements made by witnesses he or she has called. Statements made by the other party’s witnesses that support the cross examiner’s case or the cross examiner’s witnesses often leave a very powerful impression with the judges. An advocate can argue during closing statement that certain facts must be true since even the opposing party’s witnesses have admitted that they are true.

Discrediting Unfavorable Testimony

This type of cross-examination has one main purpose – to show or suggest that the testimony of the witness is less reliable or less likely to be true than it appeared at the end of the direct examination. The aim is not to discredit or “destroy” the witness personally. Rarely will an examiner have the opportunity to show that a witness purposefully lied during direct examination. Most witnesses, however, will include their own perspectives, attitudes and beliefs in telling their stories. This can distort the reality of the event. Cross-examination can develop and reveal this distortion.

Two approaches that can be used to discredit a witness’ testimony involve challenging a witness’ perception and challenging a witness’ memory.

Perception

An obvious way to discredit a witness’ testimony is to bring out facts that suggest that the witness did not have the best ability or opportunity to observe the event he testified about on direct examination. This usually means showing that the event occurred quickly and unexpectedly, that the witness was frightened or excited, that the distances were far or the lighting was poor. This type of examination can result in the court questioning the accuracy of the witness’ observations.

Example:

Q: Mr. Vuth, you are 74 years old, correct?

A. Yes I am.

Q: And you have to wear prescription glasses because your eyesight is not very good anymore, correct?

A: True.

Q: And the night this incident happened you had forgotten your glasses, correct?

A: Yes, that’s true.

Q: And everything that you saw that night was very blurry, wasn’t it.

A: Yes, I would have to admit it was.

Memory

A witness’ ability to remember the details of an event can have a great impact on the reliability of his testimony. If a large amount of time has passed since the event, he may have difficulty remembering the event accurately. He may have trouble separating the actual details of the event from details he heard from others or details his own mind created. Cross-examination can often point out that a witness has forgotten, confused or has otherwise mixed up certain facts which are necessary to the accurate reconstruction of events.

Example:

A police officer arrested a defendant six months prior to the trial and took a statement from him. The cross examination reveals that the officer did not write the statement down in his report and suggests that the officer has arrested so many people and taken so many other reports since then, that he cannot possibly remember with accuracy what the defendant said:

Q: You arrested my client more than six months ago?

A: Yes.

Q: How many arrests do you think you make a week?

A: Maybe 4 or 5.

Q: So, since you arrested my client six months ago you have made approximately 120 arrests?

A: Probably about that. Maybe a few less. Its difficult to say how many.

Q: It’s impossible to remember all of the details of every one of those arrests isn’t it?

A: Yes.

Q: That’s why you write the details down in police reports?

A: Yes.

Q: And you try to write down in the report everything you think is important?

A: Yes.

Q: But your report in this case does not mention anything about a statement made by the defendant?

A: No.

Q: Your report says nothing about what the defendant actually said, does it?

A: No.

Impeachment

Impeachment is a cross-examination technique that discredits a witness or his testimony. Its purpose is simple – to show the court that the witness or his testimony cannot be believed.


There are several basic impeachment techniques. Two standard techniques are:

1. Showing the witness possessed bias, interest, or motive.

2. Revealing the witness made prior inconsistent statements.


Bias and prejudice are tendencies or inclinations that a person has that prevent him from being impartial. An individual can be biased in favor of, or prejudiced against, another person or position. Exposing this bias or prejudice usually involves revealing a family, business or personal relationship that makes the witness unable to be impartial or objective.

Example:

The defense is alibi. The defendant’s mother testified on direct that her son was home when the crime was committed. The cross examination reveals the mother’s obvious bias toward her son.


Q: Mrs. Raneth, your son was living with you on October 6, the date this assault occurred, is that right?

A: Yes.

Q: He is still living with you?

A: Yes.

Q: It’s fair to say that you talk to your son every day?

A: Yes.

Q: He tells you about his problems?

A: Yes.

Q: You’ve talked with your son about this case many times, haven’t you?

A: Yes.

Q: The court did not force you to come to court today did it?

A: No.

Q: Your son and his lawyer asked you to come and testify today, is that right?

A: Yes.


You will note that this cross-examination was very gentle. The examiner asked enough questions to point out the mother’s obvious bias without attacking her and making her look more sympathetic to the court.

Interest refers to the possible benefit that a witness might derive from the outcome of the case, or the possible detriment. Often interest is financial. Since human greed is a common human motivation, revealing that greed can have a damaging effect on a witness’ testimony.

Motive is the psychological urge that causes a person to think or act a certain way. Common motives are greed, love, hate, and revenge. Effectively suggesting that a witness has a motive to testify in a certain way can result in the court viewing the witness’ testimony with skepticism.

Example:


Q: Mr. Panna, the defendant, Socheeta is your ex-girlfriend, is she not?

A: Yes she is.

Q: And the two of you dated for over two years, correct?

A: Yes we did.

Q: And the relationship was very serious, was it not?

A: I suppose so.

Q: At one point you loved Socheeta so much you asked her to marry you, didn’t you?

A: Yes I did.

Q: And when she said no, that she was in love with your best friend Sophal, that made you angry didn’t it?

A: Yes

Q: And upset with Socheeta and Sophal?

A: Yes

Prior Inconsistent Statements

Confronting a witness with inconsistent statements he made at some time prior to testifying in trial can be one of the most effective methods of impeaching a witness. These statements can be statements made to the police or civilians or even statements made in court at previous hearings. The aim is to show that the witness has given two or more versions of the same event or fact, and therefore his testimony cannot be trusted.

There is an organized and simple technique that can be used for impeaching a witness in this fashion. It is three-step technique – the steps are to commit, credit and confront. The first step involves committing the witness to a fact or statement he gave on direct examination. The second step involves building up the prior statement the witness made which was inconsistent with his direct testimony to show its importance. The third step is to confront the witness with the prior inconsistent statement in such a way that he must admit that he made it.

Example:

Q: Mr. Seyha, you stated on direct that you were less than 20 meters away when you saw the cars collide?

A: Yes.

Q: There is no doubt in your mind about that?

A: None whatsoever.

Q: Mr. Seyha, weren’t you more than 20 meters away when you saw the crash?

A: No.

Q: Mr. Seyha, you spoke with a police officer a few minutes following the accident didn’t you?

A: Yes.

Q: That was at a time when the details were still fresh in your mind?

A: Yes.

Q: You knew the police officer was investigating the accident didn’t you?

A: Of course.

Q: And you were careful to give the officer the correct facts?

A: Of course.

Q: Mr. Seyha, you told the police officer, minutes after the accident, that you were more than 20 meters away when you saw the crash, didn’t you?

A: Yes.

In the above example, the examiner used the commit, credit and confront technique to reveal that the witness had given two versions of a crucial fact. The fact that the witness has made contradictory statements is something the court is likely to use in determining whether the witness’ testimony was reliable. It should be pointed out that where a witness denies he made a previously contradictory statement, unlike the example above, the examiner should be prepared to confront the witness with the evidence of that statement – for example showing the witness a police report or transcript of a prior hearing containing the prior inconsistent statement, or by presenting actual witnesses who will testify to the contradictory statement being made.

Introducing Exhibits

As mentioned previously exhibits are important in a case to show to the finder of fact what the scene looked like or to give to the court evidence in the case. In order to use an exhibit, a proper foundation must be laid that allows the court to accept the exhibit as being true and authentic. This is often called “laying a foundation’ for the evidence.

Introducing exhibits involves three steps: (1) Have the witness identify the exhibit; (2) have the witness authenticate the exhibit and (3) move to have the exhibit admitted into evidence.

Example:

Q: Officer Sopheak, what did you see when you arrived at the scene?

A: I saw the victim, Sok Sowathey, lying on the kitchen floor with a knife sticking out of her chest.

Q: What did you do then?

A: I knelt down and ascertained that she was not alive. I then radioed for assistance and began my investigation.

Q: What happened to the knife that was in the victim?

A: At the direction of the coroner I took the knife out of the victim’s body and I put it in a plastic bag, which I marked with the time, date and my signature.

Q: Officer Sopheak, I am showing you what has been marked as Prosecution Exhibit 1, do you recognize it?

A: Yes, it’s the plastic bag containing the knife that was in Sok Sowathey’s body.

Q: And is this the knife that you pulled out of the body?

A: Yes it is.

Q: How do you know?

A: I recognize the knife, and that is my signature, date and time writing on the plastic bag.

Q: Your Honor, the State would like to admit Prosecution Exhibit One into evidence.

Defense: No Objection Your Honor.

Judge: Prosecution Exhibit Number One will be admitted.


See Guide to Effective Advocacy in the Cambodian Criminal Justice System, Cambodia