If there's an advocacy topic you want to see discussed, or about which you wish to contribute, contact one of the blog administrators - see the list on the right side of this page. Lonely thinking changes nothing, sharing your thoughts may start a trend.

Monday, January 3, 2011

Co-opting their witnesses to your case: another example where your argument is your cross-examination.

The previous article exploring the link between your case argument and your cross-examination took as the working example a criminal assault case with the defence arguing ‘self-defence’.

This article applies the approach set out in that previous article to another example. The reason is to reinforce the key concepts of: co-opting their witness to your side as much as possible; being pleasant as long as possible; being actively responsive to their answer/s (whether the answer is expected or unexpected); and, adopting a presentation style that draws the audience to what you are saying and how you are saying it. See the previous article (available here) for a fuller statement of relevant concepts.


The accused is charged with ‘criminal breach of trust’, the elements of that offence being that:
a. the accused was in position that required him to invest funds belonging to others in a specified way; and,
b. any departure from those specifications required the prior consent of the beneficiaries; and,
c. contrary to those specifications, and without consent, the accused handled the funds in other ways.

The brief facts are that the accused was a member of an investment committee that was responsible for investing the surplus funds of a number of bank employee organisations each of which nominated a member of the committee. That committee set up a sub-committee of three persons (the accused being one) whose responsibility was to trade these funds in various ‘low risk’ investments.

Over several years the sub-committee made written reports to the full committee in which the purported investments were set out and a trading profit was always noted.

An audit uncovered that there had been a number of unauthorised speculative investments and that a good proportion of the funds had been lost.

Of the three members of the sub-committee one had played no part in the investments or the preparation of the reporting statements, a second had died before the matter was discovered, and the accused admitted to making the bad investments but claimed that the dead man had assured him that a majority of the investment committee had approved these more risky investments. Both the dead man and the accused had many years of experience in the banking industry and were ‘senior’ staff in their respective work places.

You are to imagine that you are the prosecutor. You have established from the remaining members of the investment committee – several having died – that none of them discussed any variation of the investment rules with the dead man or the accused. However, the defence has ‘suggested’ during successive cross-examinations that these survivors cannot speak for those who have died. Further, that these survivors have no reason to acknowledge such conversations because to do so would shift at least some of the blame from the accused to them.

The accused has given evidence consistent with the above brief facts. Cross- examined, inter alia, about the false and misleading financial statements he claimed that the dead man told him to do it that way because that’s what the investment committee members wanted.

The defence now calls a strong character witness who speaks to the general good character of the accused. This witness, a senior executive who is highly regarded, has known the accused throughout their working lives in the banking industry.

Your task is to cross-examine this witness.

How to Prepare and Perform

Please note that the scripted questions used in these illustrations are used only to illustrate an approach to questioning. The use of ‘pre written’ questions in real cross is NOT recommended because it dangerously assumes that witnesses are compliant.

A cross-examiner who is imbued with the single-minded notion that cross is about ‘attacking the witness’ will tackle this witness with such questions as:

Q: You’ve been a friend of X (the accused) for many years?
Q: So you don’t want to see him in trouble?
Q: You want to help him don’t you? [This is just a variation of the over used cross of an accused’s mother, a cross that wants to suggest that any good mum simply can’t see badness in her wayward offspring]

Followed by a run such as the following:
Q: You’re a senior executive?
Q: You got there on merit?
Q: So you know what’s expected on financial reports?
Q: And you know that the financial reports prepared by your friend, the accused, don’t comply with those expectations?
Q: Yet you still come here, take an oath, and tell us that the accused is a good chap?

Which is intended to be, and is, a belittling of the witness. The cross-examiner feels smugly successful and sits down having, however, failed to consider this simple question, “How does all that advance my obligation to prove my case beyond a reasonable doubt?”

A cross-examiner who is focussed upon, “How can this witness help our case?” will see a great opportunity in the long term friendship between the witness and the accused.

Opening topic: Let’s start with your friendship with X (the accused).
Q: You met when both of you were at new employee training?
Q: And that was how many years ago?
Q: Both of you have spent your working lives in the banking industry?
Q: And you’ve done very well?
Q: I see, looking at your impressive resume, that you spent a period in charge of bank staff training?
Q: And X worked with you there for a time?
Q: And both of you left to take up promotions?
Q: Are there any photos or mementos of the two of you? [cross-examiner doesn’t know the answer but it’s risk free. If the witness says, ‘No’, the cross-examiner moves on. If the witness says, ‘Yes’, then proceed as follows]
Q: It’s nice to remember good times isn’t it?
Q: And, as you’ve told us, there is a lot of good in X?
Q: Which you’re happy to share with us today?

Topic transfer: Let’s talk more about training.
Q: Tell us, in simple terms, the objectives of that ‘new employee training’ [Open question, deliberately so, with the intent of having the witness think as a trainer and executive about banking and banking standards rather than friendship.]
Q: You mentioned ‘accuracy’ in that last answer. Please give us a few examples of where that accuracy is important in banking [Open question, again, and for the same reason as before.]
Q: You referred to records accuracy a moment ago. What are the consequences, as pointed out to new employees, of inaccurate records?
Q: You agree then that ‘trust’ requires accurate records?
Q: We can take it then, that accurate records and trust are interlinked concepts in the banking world?
Q: And staff, all trained staff, are expected to understand that link?
Q: And act on it at all times?

Topic transfer: Let’s spend a little time now on banking agreements.
Q: When a customer applies for a new account there are forms to be completed? [Judges and jurors are bank customers]
Q: Accuracy is expected?
Q: When a customer applies for a credit card or a loan of any sort there are forms to be filled out?
Q: Lots of detail?
Q: And the customer must take care to be full and frank?
Q: So bank staff are accustomed to detailed agreements?
Q: And the expectation of being full and frank?
Q: Would you agree that it’s second nature to check the documentation?
Q: For completeness?
Q: For accuracy?
Q: There are no exceptions are there?
Q: From time to time agreements are changed?
Q: Such changes always being noted in writing?
Q: So that there is a clear record for those who come after?
Q: In the interests of accuracy?
Q: And of trust?

Topic Transfer: Let’s now talk about matters among experienced banking people.
Q: You’ve seen the investment instructions to the subcommittee?
Q: Those instructions cannot be read to encompass X’s investment actions between this and that dates?
Q: As a banker, an experienced banker, you would be looking for a written change of instructions wouldn’t you?
Q: You’ve not been shown any such change of instructions?
Q: You’d want such a written change to the agreement to protect all parties wouldn’t you?
Q: You’d want such written instructions to preserve that accuracy that was stressed at new employee training?
Q: You’d want such written instructions to show the trust you told us about?
Q: That’s the kind of accuracy and trust you wanted to stress when you were in charge of training?
Q: When X was working with you?
Q: When X was training others in the importance of that accuracy and trust?
Q: That accuracy, that trust, those are fundamentals for bankers?
Q: Not forgettable?
Q: Not avoidable?
Q: Not optional?

As an interesting variation suppose that the witness is one of those dominant individuals who will not be thwarted when there is something they want to say. Non-responsively to one of cross questions the answer comes:

A: Let me tell you that if X says that Y (the deceased co- member) told X to do it in a particular way then that is what happened. No doubt about it.

The cross-examiner who is uncertain or too confident will immediately re-assert control with a comment such as,
C: Just answer the questions that I ask please.

And, in so doing, fail to appreciate the ‘living’ nature of cross. Rather better to roll with the witness as follows (and repeatedly take controlled risk):
Q: So then, did you have other experience of Y telling someone to do something in a particular way?
A: Yes
Q: Was that someone you or another person?
A: Me
Q: And was Y telling you to do something that was, in terms of your banking practice, OK or not OK?
A: Not OK.
Q: So did you do it? [ Comment: ah, a magic moment. Let’s enjoy the alternatives]

Alternative #1
A: No
Q: And that was because of your training?
Q: The same training that X got?
Q: The same training that you and X gave to others?

Alternative #2
A: Yes
Q: So X’s action is just history repeating itself?
Q: And you come here to tell this court that two wrongs make a ‘write’?

Hugh Selby ©
January 2011.

No comments:

Post a Comment