India Criminal Defense Manual - Questioning the Witness

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Prosecution Witness

The following form will assist you to evaluate and prepare your defense against the statements of the prosecutor's witnesses:

Prosecution witness evaluation form

Name of Witness:

Analysis

List the reasons why this witness helps the prosecutor prove the crime charged.

List the reasons this witness's testimony will hurt the defense of your client.

List the reasons (if any) this witness will help the defense of your client.

List the ways (if any) in which this witness's testimony is inconsistent with their previous statement, statements of other witnesses, the victim, accused and jointly accused persons, and the evidence presented.

List the ways (if any) that this witness's testimony may be utilized to advance the defense attorney's theory of the case.

Pages in the case file where this witness appears:

Supporting Evidence

List the evidence to be used when asking this witness questions.

In case the prosecution witness changes their previous statements, the legal aid lawyer can use the following prompts:

You can ask the witness: "You previously said," and the witness will in all likelihood say "yes," or argue with his or her previous statement. If the witness says "no," or contradicts his or her previous statement, you can:

Refer to trial documents or other evidence:

Call an already prepared defense witness to the stand to refute the prosecution witness' claim:

Sample Questions

Is this witness helping your case? If so, remember to:

1. Repeat the aspects of the witness' testimony that are helpful to your case during your questioning.

Example: "I want to make sure I heard your testimony correctly. Did you say that [helpful statement]?"

2. First ask the witness easy, supportive questions in order to make them comfortable, then you can ask more difficult or aggressive questions.

Examples (of easier, introductory questions):

  • How many years have you been doing this? (if the witness is an expert witness, teacher, policeman, etc.)
  • How well do you know the person?
  • Are you the type of person who notices details?
  • How good is your eyesight?
  • How good was the lighting?

Is this witness against, or hurting, your case? If so, try to demonstrate inconsistencies and problems in their testimony. Examples:

Is it true that you are friends with the victim?

  • You didn't write down any of your observations at the time of the event?
  • You did not speak with the police until many weeks after the alleged crime?

Your concluding question should be your strongest one and one that:

1. You safely know the answer to, and

2. Whose answer supports your case?

Example: Isn't it true that my client called the police, and waited for them at the scene?

Defense Witness Evaluation

1. Cross-examine the prosecution's witnesses

2. Use evidence to impeach the prosecution's witnesses

3. Ask a Magistrate or police officer to collect evidence on behalf of the accused. If the police or a Magistrate, discount evidence which could favor the defense, this is grounds for an appeal, and strong grounds for later nullification of the verdict.

The following form serves as a guide to help you evaluate and prepare for the testimony of witnesses that may help your case.

Defense witness evaluation form

Defense Witness #____

Name of Witness:

Address: Phone number:

Family member(s):

Place of work:

Relationship to accused (if any):

Reputation for honesty or dishonesty:

Capacity/mental health issues (if any):

Prior arrests/criminal convictions (including juvenile record):

Pages in the case file where this witness appears:

Prosecutor's evidence we need to discuss or explain:

1. description of crime scene

2. knowledge of complainant/victim

3. knowledge of prosecution witness

4. expert testimony on:

a. blood

b. tests by prosecution

c. reconstruction of the crime scene

d. victim's injuries/mental health status

Defense evidence to identify or admit:

1. knowledge of accused's:

a. character

b. habits

c. mental health status/limitations

d. physical health status/limitations

e. business practice

f. family

2. knowledge of the crime scene

3. alibi evidence

4. new evidence, such as:

a. scientific testing

b. diagrams

c. reconstruction of the crime scene

d. results of mental health evaluation of accused

5. When preparing questions, remember to consider how each witness's testimony can be developed to advance the defense attorney's theory of the case.

Preparing for the prosecution to question your client

1. The theory of most prosecution questions promotes the following false logic:

a. Story has changed from the original account or is different from the police's account,

b. The accused is lying, and so therefore,

c. He must have committed the crime.

2. Prepare your client for the prosecutor's tone.

3. Your client should answer the prosecutor as he or she answered you, with the same voice inflection, the same eye contact, and a body language that indicates they are telling the truth.

4. Approach expert questions that produce damaging evidence carefully.

These questions must be answered directly by the accused, with no attempt to either evade or explain. The accused's body language must not convey any effort to evade touchy questions.

Evasion makes the client look untruthful.

Explanations can become opportunities for a prosecutor to start tearing holes in the accused's account.

Therefore, let the client know that you can return to these issues during re-questioning and clean up some damage. During re- questioning, be sure to ask questions that will advance your theory of the case.

5. If the accused does not know the answer, he or she should not be afraid to say "I don't know." This may be especially important if a prosecutor tries to make your client admit to a certain number, or quantity:

A prosecutor will try to show that your client is incorrect about something, anything at all: A frequent trick is to ask how long the red light lasted, how many meters it was across the room, or how many beers were consumed, etc.

Even if the accused first says that he or she does not know, the prosecutor may badger them to assent to an estimate, or a range.

Questioning witness during trial

1. Start with simple background questions to put them at ease. Examples:

What is your:

Name

Place of Birth

Work history

2. Ask a few "foundation" questions about the witness; they can be general but should be consistent with the main testimony. Examples:

  • If the main testimony is about a character trait or habit of someone connected to the case, ask how long they've known the person.
  • If the testimony is mainly about neighborhood layout or traffic, ask how long they've lived there, or how good the lighting is.
  • If the testimony is an expert opinion, ask how many and what types of materials the expert reviewed before coming to a conclusion. How much time did he spend on the review? Who did he interview?

3. Ask the "main" questions clearly and understandably.

GO SLOW. BE CLEAR. Witnesses get nervous up on the witness stand. There is a significant chance that your question will be confusing, even if you have discussed it ahead of time. There is a very real risk of getting an answer you do not want.

4. Phrase the main questions you ask each witness in a way that will advance the defense theory of the case.

5. If there is evidence that hurts your accused, bring it out before the prosecutor's questioning. Examples:

  • Tell us why you did not talk with the police before coming here.
  • Tell us why you're saying this today, but said something different earlier.
  • Tell the judge, please, why you didn't go to the police and explain this alibi the day your husband was arrested.

Examination in chief and cross-examination

Questions to Consider

Regardless of whether the legal aid lawyer is preparing for examination in chief or cross-examination, he should prepare his inquiry by answering the following questions:

1. What is the overall theory of the case?

2. How does this witness fit into the overall theory of the case?

3. How can you fit this witness's story into the story that has already been told and the story that will be told after this witness testifies?

4. How will the witness's testimony help you to develop your client's story? To counter the prosecutor's story?

5. What evidence do you need to introduce or rely on during examination in chief? During cross-examination?

6. What evidence will the prosecutor rely on during examination in chief? During cross-examination? What questions can you ask or what evidence can you use to counter the prosecutor's evidence?

Purpose of Examination in Chief and Cross-Examination

Section 137 of The Indian Evidence Act, 1872 defines that the examination - in -chief is the Examination of the witness by the party who calls him to give his testimony before the Court. The Cross Examination of the witness is the examination of the witness by the adverse party. In case it is desired by the party calling his witness subsequent to cross examination, that witness may be called for Re- Examination. Although the legal aid lawyer should ask the six questions listed above when preparing for either examination in chief or cross-examination, he should be aware that examinations in chief and cross-examination have very different purposes and techniques.

Examination in chief

The examination of witness by the party who calls him shall be called his Examination - in - chief[1]. which requires the witness to tell a story. The goal of examination in chief is for the legal aid lawyer to elicit the witness's story in the witness's own words in a manner that will advance the overall theory of the case.

Cross-Examination

The examination of a witness by the adverse party shall be called his cross - examination[2] which is a selective, targeted attack on the prosecutor's theory of the case. It is not simply rehashing the testimony that was developed during the direct examination of the witness. The legal aid lawyer seeks to develop points that will show that the witness's testimony is inconsistent with other testimony or evidence; that the witness is biased against the accused; that the witness has a motive to testify against the accused; that the witness (if he is a co-accused) had the opportunity to commit the crime; that the witness lacks knowledge of the facts and the evidence in the case; and that the witness was unable to see, hear, perceive, and observe the major events in the case.

Types of Questions to Ask

Open-ended questions: Since the purpose of examination in chief is to have the witness tell a story in narrative form, the legal aid lawyer should ask questions beginning with words that are intended to elicit information from the witness, such as who, what, where, when, why, how, describe, explain.

Asking these types of questions requires a witness to do more than simply answer yes or no. Examples:

  • When you arrived at the bar, what did you see?
  • Can you tell us how the fight began?
  • Who did you see at the bar? What were they doing? What happened next?

Closed-ended questions: Closed-ended questions require the witness to answer yes, no or as briefly as possible; therefore, the legal aid lawyer should avoid asking these types of questions during examination in chief and should ask closed-ended questions during cross-examination. Examples:

  • Was the bar crowded the night that the fight occurred?
  • Who threw the first punch: the victim or the accused?
  • Were you still there when the fight ended?

Words never to ise during cross-examination

Legal aid lawyers should NEVER ask who, what, where, when, why, how, describe and explain during cross-examination. These are words requiring explanation that you do not want to elicit during cross-examination. The goal of cross-examination is to target the prosecutor's case and to advance the accused's theory of the case without giving the witness an opportunity to explain their answers. You want the witness to agree with your version of events, not to develop their own.


How to prepare your client and other witnesses

1. Communicate your theory of the case to the client or other witness. Explain how their testimony advances the theory of the case and refutes the prosecutor's version of events.

2. Prepare your client and other witnesses for both examination in chief and cross-examination.

3. Prepare your questions for both examination in chief and cross- examination. Remember to begin with broader, more general questions at first and more specific, detailed questions as the examination proceeds. Be sure to save your strongest/best points for the end of your examination. Do not ask a question for which you do not know the answer.

4. Role-play with your client or other witness. Prepare them for the prosecutor's tone, questions the prosecutor will ask, and evidence the prosecutor will use.

5. Advise your client or other witness to listen carefully to the question that is being asked, regardless of whether you or the prosecutor is doing the questioning. Make sure the client or other witness understands that they need to concentrate on answering the question that is actually asked and that they should not provide information that they have not been asked to give.

6. If the client or other witness truthfully does not know the answer to a question, he should say, "I don't know" instead of guessing or speculating.

7. Reassure the client or other witness that they will have the opportunity to clarify any matters that need clarification during re-examination in chief.

Conclusion

Developing effective examination in chief and cross-examination skills takes persistence, patience and most of all, practice, practice, practice! By developing a comprehensive theory of the case and structuring your examination in chief and cross-examination questions in a manner that advances your theory, you will be able to persuasively argue your client's case to the court.


See India Criminal Defense Manual

References

  1. Section 137 of The Indian Evidence Act, 1872
  2. Section 137 of The Indian Evidence Act, 1872