Advocacy Lecture Series: Witness Handling in the Criminal Courts PART1 David Cusick, Lecturer, College of Law Good

evening ladies and gentlemen, hope you are all well, tonights lecture is another in the advocacy series, the title of tonights lecture is Witness Handling in the Criminal Courts and Id like you to all to welcome our guest speaker, Mr Ali Bajwa of Counsel. Ali Bajwa, Barrister, 25 Bedford Row Im coming at this from an almost exclusively criminal background and I hope that you expected this talk to be witness handling with a criminal bias or exclusively criminal perspective. Ive been at the Bar for about 17 years now, I think, and cross examined and examined in chief for fair number of witnesses in my time. And Im going to try and give you the benefit, if thats the right word, of some of my experience over that time and take you through some of the essentials of getting it right to the examination in-chief and crossexamination some of the main golden rules if I can call them that of examination in-chief and cross-examination. But the point that occurs to me is that I dont want to over simplify this for you, you know with examination inchief youre not meant to lead a witness and practice and experience will tell you where youre doing that right and where youre doing that wrong. And I know youll have been told and youll have practiced that in cross-examination you only lead a witness. Of course there are exceptions to that rule as there are exceptions to the rule that you only lead in, that you dont lead in chief when youre examining in chief. There are exceptions to the rules both ways
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but those are the basics which you will have in mind and when you practice and you will come to terms with but I also dont want to over complicate this and give you the benefit of some of the more advanced aspects of witness handling which may be a little more than you need to know at this stage. So Im going to try and pitch this somewhere in the middle as I said from a predominantly criminal perspective and hope that its of some use to you so youll understand why Im avoiding the basics and some of the advanced things but the essence of witness handling to my mind, keeping it simple. And thats true on the basic, on the intermediate and on the advanced level. And I dont know how many of you have been to court and seen advocates in the courts, sometimes silks, handling witnesses in the criminal courts and in civil courts as well. Youll notice how everything just

sounds so normal, the questions sound normal, theyre phrased in ordinary English, plain language, short sentences, short questions. And youll find that the evidence seems to come out in a normal conversational way from both witnesses who are being examined in chief and witnesses that have been cross examined. What I think might happen when you come to a college such as this to do your Bar vocational course is that I dont know how many of you this will be true for but I expect it to be fair of a good number of you. It was certainly true of me when I was sitting where you are now, feels like yesterday but you had the feeling that you had to do something extraordinary, something special, you had to be baristerial, you had to find a very clever angle when youre dealing with a witness and you had to find a killer question when you were cross examining a witness. And you had to keep a witness in the

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witness box for a good amount of time otherwise somehow you werent being baristerial enough. And hopefully time and experience, if it hasnt taught you that already, but it will do in the fullness of time shows that that isnt true that what you need is to keep things simple and to do whats necessary with a particular case and with a particular witness at any given time. And Ill give you some examples I hope in the course of my talk which might illustrate why that is the right way to do this is to step back, not to over complicate it, not to over think it but to step back and to say really what do I need to do with this particular witness, what do I need to ask this particular witness and whats the simplest way, the clearest way for me to get that evidence out. Witness handling is one of the more difficult aspects of advocacy. And thats because its the time in a court room when the advocate is to a certain extent dependant upon another person and that is a witness in the witness box. Because when an advocate is making legal submissions or making an opening and closing speech, then the advocate is essentially in control of his or her own destiny. But the minute that theres a witness in the witness box well things can go wrong and we all and you will have practised this and even in the trial exercises will have felt that heart in your mouth moment thinking if I ask the wrong question, Im going to get the wrong answer or oh dear god Ive just got the wrong answer and I dont know quite what to do now. And thats why witness handling is a difficult aspect of advocacy and thats probably why its focused on a great deal as part of your course and probably why Im here to try and advise you on the dos and donts of witness handling. But let me put your mind at rest immediately in the course of this talk

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and you should bear this in mind whenever you undertake a piece of witness handling. And that is that you will have prepared what you need to get from a witness both in examination in chief and cross-examination. If you have

thought it through properly, prepared well and that you follow the golden rules of examination in chief and cross-examination, that is the obvious, dont lead in chief, only lead in cross-examination. Some of the things Ill talk to you about tonight, then youve given yourself the best possible chance of getting high quality evidence-in-chief and the best chance when youre cross examining that the witness will give you helpful answers and as few unhelpful answers as possible. And that is all that you can do as an advocate when youre engaged in the task of witness handling. Because some witnesses are beyond help, they arecall them in chief and they will not stay on piste, theyll go their own way and you can do everything right and youve lost a witness. The witness will despite every encouragement from you will mumble, will not answer the question and youll do everything right for 10 or 15 minutes for that witnesses is a difficult one to get into a neat, clear, coherent examination-inchief. And the same in cross-examination, youll ask a beautiful question, precisely the right question which from a rational witness will get an extremely helpful answer to your client and no unhelpful answer at all. However youll get a witness whos so bloody minded that he will get into the witness box and deliver that killer answer that you know will completely obliterate your case. Youve done everything right and so whats important in witness handling is to have the confidence to say well look Im going to go about it the right way, Im going to plan it properly, Im going to present it properly and youve given yourself the best possible chance and if a witness is giving you unhelpful

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evidence either in chief or cross-examination well then so be it. Its not your fault and that may help you I think to relax a little and may help the heart sink a little lower in your throat when you get up to examine a witness because if you do it right, well then the outcome is to a certain extent out of your hands. Youll continue even if a witness is going off piste to get the witness back on piste and youll do all you can about that and when the witness to your enormous relief is out of the witness box youll do everything you can in your submissions or speech to repair the damage. And thats all you can do as an advocate. So the outcome to a certain extent of cases certainly of witness handling isnt in your hands, all you can do is give yourself the best possible chance that it will go right. And Ill give you an example right away when I called a witness in a road traffic accident and it was a passenger in a motor car who had seen the whole accident from start to finish and my client was driving the car, this was his partner in the passenger seat. And we needed this accident to have had happened almost the instant that my client pulled out of a junction, that a car came and hit him from the right, so he pulled out of a junction, the car on the main road came out, it came along the main road and crashed into the side of my car and I needed it to be a split second between the pulling out and the collision. So I called my client and he was fine and I called his partner who was going to confirm the same thing, this was an almost instantaneous accident the minute they pulled out. And she was in the witness box and I asked her how long elapsed in time between when they pulled out of the junction and the collision. The answer I got from the witness was, about a minute. Now I know what the witness meant, she was using minute in the

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way we sometimes we use the word a minute because we use that as shorthand for saying its a very very short time, hang on a minute doesnt mean 60 seconds, it can mean much much shorter than that. So I decided that was the best tact to take with this witness and said look as stonily as I could and as firmly as I could Miss X in a court you must be very precise when you we use the term minute. And a minute means 60 seconds, so can you reconsider your answer and tell me how long it took between the moment the car pulled out and the time of the accident and the answer I got from the witness is, alright a couple of minutes. I had that moment when I had to think, do I carry on or do I stop? I stopped and decided to reserve it for my submissions to the court and emphasise that she cant have meant now a 120 seconds, she must have meant minute as being synonymous with a second, I lost the case but that wasnt my fault.

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