Apr 9, 2015


Credits - thestar.com
The most striking feature of the criminal trial is its oral nature, and its central phenomenon is the process of oral examination of witnesses. The greater part of the law of evidence, the rules of relevance and admissibility, dictate the manner and extent of the witnesses’ testimony. But these are general rule of evidence. Whilst it is its orality which is the striking feature of the criminal trial, it is the process of question and answer which is the distinctive feature of that oral procedure. The witness who is testifying is not allowed to make a speech. What he says is said in response to questions put to him in the course of examination, cross-examination and re-examination.

The process of question and answer prevents the witness from going off on a frolic of his own. Counsel’s questions should have regard to the rules of relevance and admissibility and should ensure that the testimony of the witness is directed to the case for the prosecution or defence. The disadvantage of the process is that the witness may be denied opportunity to tell the full story as he sees is. During cross-examination it is possible for counsel to question the witness selectively and to cease a line of questioning when he has elicited information for hs own purpose, denying the witness the opportunity to elaborate or qualify what he has said. Where the witness has been selectively examined, whether during his examination-in-chief or under cross-examination, it is for the opposing counsel to correct the balance during examination or re-examination.

The relevance, directness and cogency of the evidence of a witness is dependent not only on the story which he has to tell, or the facility with which he can tell it, but on the skill of counsel examining or cross-examining him. One advantage of the system is that it helps to reduce the disparity in the persuasive forces of a highly articulate and confident witness vis-à-vis one who is nervous and inexperienced, but in doing so it gives an advantage to experienced and clever counsel. Through his questioning he is able to structure the evidence of the witness. His aim is to give coherence and, hopefully, brevity without sacrificing content or persuasive power.
Advocates have a remarkable privilege. They are allowed to ask highly personal questions of people in a public area and people must answer them. Few others have this privilege, apart from judges. There is a danger advocates can march into peoples’ lives, turn them completely upside down, and waltz out for a glass of wine. The public sometimes perceives this as what advocates do. For the advocate, it is just another day’s work. But for the witness, who often has not been questioned in court before, the experience may have been devastating, never to be forgotten.
Do not become blasé. Some advocates can play the disdain card well. But they are very experienced. If you play it badly, you will usually lose the case.  So in the early years, don’t do it!

They are not objects. They are not for picking over disdainfully like some laboratory specimen. There are some truly awful advocates who treat witnesses appallingly. Never, ever be like that

Even to the witness who is the greatest enemy of your case and especially to that person. Anger, disdain, answering back, are always always dangerous. Disdain makes you look arrogant and so you lose respect. Anger makes you look as if you are losing. Answering back makes it seems you are too involved in your case. Try to envisage you are above the fray, while keeping a measure of common sense.

If they are your witnesses, PUT THEM AT EASE.
Settle them slowly. Ask easy questions to begin
Ensure questions are simply phrased. One question at a time.
Look at the witness, eye contact again, smile even. Invite them to keep their voice up.
Invite them to address the tribunal, especially on really important points.

Question. Answer. Question. Answer
Encourage the feel of dialogue
Get a rhythm going. But pace the speed of the dialogue to meet the judge’s pen.
Keep things slow and even and pleasant, and the witness will feel more comfortable.

Remember that every witness has a personality. Try to tease that personality out, or they may appear wooden and lifeless and will be less likely to be relied upon by the tribunal.

And finally, for all the brooding atmosphere of a court, for all the formality and strangeness of it, your witnesses have a story to tell. They may feel in front of lawyers it is a story which must be told in some formal manner with big words. Stop them; instead, get them to tell their story easily, in their own words without worrying about impressing all the supposedly clever lawyers.

Olajumoke Bababtunde

Olajumoke is a Senior Criminal Prosecutor based in the United Kingdom. She has extensive experience in all areas of criminal law and specialises in Rapes, Child Abuse, Serious Sexual Offenses, Drugs and Human Trafficking Offences. Olajumoke also has a wealth of experience in cases involving covert surveillance, telephone and cell site evidence.