Cross-examining a witness is a skill which is neither easy nor too difficult to embrace. To be a good criminal defence lawyer you have to learn the “curves” the hard way. You may spend some time observing or assisting senior counsel but at the end of the day, you have to experience it yourself and try your best to brush up your cross-examination skills if you are given the opportunity to do so.
As a comparison, civil lawyers’ work might be 90% preparation and documentation, while another 10% in court. For us, it is the contrary – 10% preparation and the remaining 90% in court. This makes criminal litigation enjoyable and alluring as it involves the element of spontaneity, wit and to a certain extent, drama.
To begin with, I divide a criminal defence lawyer’s style in conducting cross-examination into 2 broad schools of thought:
the “gentleman’s style”. The lawyer will try to be friendly with the witness, pacifying or praising him/her until finally he/she will agree to everything that is suggested to him/her.
the “nail on the coffin style”. The lawyer will grill the witness confrontationally, and will try to corner the witness without even giving a chance to the DPP to re-exam the witness.
More often than not, both styles are fused depending on the level of co-operation by the witness, and how he/she answers the questions.
Having attended the BERSIH assembly trial for the past two days with fellow counsel, I noticed that there are a few things which we have encountered which might have been done in a better way. My view here is in no way to teach anyone or to criticise fellow counsel who have been doing a great job, not to mention making personal sacrifices. It is more to share my own experience as well as my personal view on certain issues.
Firstly, there may be some confusion to the terms “put” (katakan) and “suggest” (cadangkan). Some lawyers might think that both terms have the same meaning and some even use both terms in one single question. Counsel should only “put” a question when counsel is absolutely sure that counsel is able to support the question with evidence at the defence stage in the event defence is called. Normally, it is used to put forth the defence version of events at the prosecution stage of the case. The term “suggest” is normally used in respect of facts or contention that the defence is unable to bring forth by evidence, or where guesswork on the facts is done.
Secondly, on the issue of raising objections. At the outset, I totally disagree that a lawyer should raise objections for the sake of objecting. In other words, to “stir the waters”. An objection must be accompanied by sound reasons and underlying principles of law that counsel strongly believes is in his/her favor. It shows that counsel is prepared, articulate and sound in law. Sometimes, it may not be worth it to object as the exhibit, for instance, which the prosecution intends to tender is in the accused’s favour. Further, if counsel is up against a senior DPP like Anselm Charles Fernandis, counsel must be extra careful in taking objections for the simple reason that he might easily reply and show that counsel knows nothing on the objection.
Thirdly, the same goes for cross-examination. Counsel should not be asking questions for the sake of asking questions. A case is not won by how many questions are asked or how long cousnel’s cross-examination took. It depends on the quality of counsel’s questions. Counsel should always ask “loaded questions”. A loaded questions is one where the witness is caught by answering in the affirmative or otherwise – he/she will look stupid if he/she agrees or he/she will be considered a lousy officer if he/she disagrees.
Fourthly, a criminal trial for me is like “war”. It is essential to have a plan and to strategise. You cannot just bulldoze or use “Prebet Adam’s style” here. A criminal defence lawyer must master 3 things before he/she engages in war:
Know your facts from client and also from the prosecution.
Know the charge and its ingredients.
Study the law that is of relevance to the case.
Fifthly, the issue whether to ask or not to ask a question. I agree that a good lawyer must possess sufficient experience, skill and intelligence. But it does not mean that a newcomer cannot perform as well. The trick is to think for a moment before you ask a question. The most vital question to ponder is: what is the reason for this question? Will the answer be favourable to the accused? Or will the answer damage the defence in the event the witness disagrees with defence contention? These are the questions which need to answered first.
That is why we are puzzled why certain lawyers do not ask too many questions, for instance, Karpal Singh and Gurbachan Singh. It is because they ask only pertinent questions and leave the rest for submission. After all we do not want to give too much away to the DPP to rectify the evidence in re-examination. The trial might be less dramatic but hey, isn’t our goal to win the case?
With these five observations, I rest my case and hope to receive feedback from you. Wassalam.
Ariff’s observations is based on his own experience, and association with senior DPPs and defence lawyers throughout his career as DPP prosecuting alleged criminals. He saw the light and joined the Bar. Rightly so.