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Monday, June 17, 2013

What will they become?

As an advocacy teacher do you sometimes wonder, “Is this worth it?” Faced with a student for whom ‘in your face’ is a life motif have you ever wondered, “What will they become?”

One of my recent students, out and about to fulfil my court watching assignment recently encountered an answer to both those questions. Read on.

‘I have focussed my assessment’, wrote my student, ‘on the cross-examination of a witness by defence counsel [DC]

Question technique

Mr DC’s cross of the prosecution witness started in a confusing and boring manner. Mr DC asked, in turn, if each statement the witness made at the police station and the pre-trial hearing transcript were true and correct. The statements and transcript were inconsistent; however, Mr DC did not highlight this to the jury in a logical way. His impeachment skills were below par.

Mr DC asked many questions about what happened when the witness left a pub. The witness answered clearly but Mr DC poorly ‘tortured the fact’. He asked similar questions as if he were trying to cement in the jurors’ minds the witness’ answer. However, this let the witness continue speaking. Mr DC then had to spend time asking more similar questions to return to the original answer he had received. It was frustrating, confusing and time-wasting.
But he improved.

Use of CCTV

After questioning the witness about what occurred prior to entering the victim’s home, CCTV footage of the front of the victim’s apartment building was played. Mr DC played the footage (lasting approximately 20 seconds) in two to three second blocks. He would stop at each point and ask questions such as, ‘Is that you entering the door?’ This was an effective technique as the witness could answer discrete questions at the point it occurred in the footage. The CCTV footage was then played in full, allowing the jury to piece together the story.
This ‘continuous play’ destroyed the witness’ credibility. The inconsistencies in the witness’ story became apparent. The witness tried to explain the inconsistencies and Mr DC let him dig a deeper hole for himself.
He should have left it there.

Mr DC was his own worst enemy. He managed to destroy the credibility of the witness but, unfortunately, also destroyed the jury’s opinion of Mr DC.
It was clear to everyone in the courtroom that Mr DC thought very highly of himself. This was an advantage in some respects because he was confident and clear when asking questions. He was able to effortlessly use the witness’ previous answer as ‘fuel’ for the next question. He was able, often, to control the witness’ answers when he wanted and let the witness dig a grave for himself at other times.
However, his arrogance was also a disadvantage.

It is usual practice for an advocate to stop speaking once a judge starts. Mr DC did not do this. He solved the problem of the judge interrupting him by speaking louder until the judge stopped.

Mr DC did not make a good impression on his broader audience. The witness was not answering the question asked of him and the judge and Mr DC had both been patient with him, reminding him to ‘just answer the question’. However, at one point, out of nowhere, Mr DC exploded and yelled at the witness, ‘I didn’t ask you that!’

Mr DC also lost his temper with his client. Mr DC was getting to the climax of his questions, to the point where the CCTV footage was showing something different to the witness’ story. The defendant whispered from the dock, ‘there’s two bottles’. Mr DC told him to ‘shut up’. Instead of concentrating on the CCTV footage the jurors were concentrating on Mr DC’s argument with his client. 

At the break, it became apparent why Mr DC had told his client off for speaking. After the jury and judge were out of the room he yelled at his client, ‘If you steal my fucking line again, I’m going to quit! Don’t you ever steal my fucking line!’ 

‘Overall’, opined my student, ‘ Mr DC thinks he has the skills of a great lawyer, but what he has is the ego of a bad one.’
Hugh Selby, June 2013

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