Difference between revisions of "China Criminal Defense Manual - Questioning the Witness"
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**Tell us why you're saying this today, but said something different earlier. | **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. | **Tell the judge, please, why you didn't go to the police and explain this alibi the day your husband was arrested. | ||
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==DIRECT AND CROSS-EXAMINATION== | ==DIRECT AND CROSS-EXAMINATION== | ||
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Cross-examination, on the other hand, 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 criminal defender 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 defendant; that the witness has a motive to testify against the defendant; that the witness (if he is a co-defendant) 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. | Cross-examination, on the other hand, 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 criminal defender 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 defendant; that the witness has a motive to testify against the defendant; that the witness (if he is a co-defendant) 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. | ||
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| + | ===Types of Questions to Ask during Direct and Cross-Examination=== | ||
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| + | Open-ended questions: Since the purpose of direct examination is to have the witness tell a story in narrative form, the criminal defender 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: | ||
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| + | *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? | ||
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| + | Closed-ended questions: Closed-ended questions require the witness to answer yes, no or as briefly as possible; therefore, the criminal defender should avoid asking these types of questions on direct examination and should ask closed-ended questions during cross-examination. Examples: | ||
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| + | *Was the bar crowded the night that the fight occurred? | ||
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| + | *Were you still there when the fight ended? | ||
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| + | ===Words Never to Use during Cross-Examination=== | ||
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| + | Criminal defenders 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 defendant'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. | ||
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| + | What if the judge does not allow you to cross-examine the witness? | ||
| + | If the judge does not allow you to cross-examine the witness, you can refer to the CPL's provisions for cross-examinations. Politely remind the court that Article 58 in Explanations on some Issues in Administering Criminal Procedure Law of the People's Republic of China specifically states that only through the defense lawyer's cross-examination can any evidence be considered as a basis for deciding a case, and not otherwise. | ||
