Sad to say, this is becoming a neglected art. The ability to lead witnesses through their evidence by showing them their statement at the beginning may suggest that a lazy advocate need to little more than put words into witnesses’ mouths. Nothing is further from the truth. From the beginning, you should learn the art of asking the right question to persuade a witness to give his or her account in their own words. That means you must prepare every single witness that you call in Court.
Incidentally I include in that preparation the statements that you are going to read as agreed. When reading to a jury, spot the difficult words in advance: check the pronunciation: speak up and do not rush. Nothing is more annoying than the casual turgid reading at speed of agreed statements to a jury. It is evidence and you want them to understand its significance by reading well and clearly. Set out consciously to hold their attention from beginning to end.
Back to Examination in chief. You will be permitted to lead a few introductory questions to set the scene. With children, develop the art of easing them gently into the distressing evidence that they are going to have to give, but do not talk down to them. However, once you come to the meat of the statement, do not ever – and I mean ever – allow yourself to put the substance of the accusation into the witness’s mouth by leading it. Not only will it attract an explosion from your opponent, but you will anger the Judge. All of us realise that that sort of evidence is far less valuable than evidence that has come from the witness, however distressed that witness may be.
Now I certainly agree there will be times when that is extremely difficult to do. All of us have had a witness who is so utterly distressed by their surroundings and by what has happened to them or what they have seen – that they simply cannot begin to get the words out clearly. You must be sensitive and be seen to be sensitive. Ask for a break if you think that will help.
Never bully a witness and certainly not your own. And take them as close as you can to the key issue which they alone must tell: for example, lack of consent in a rape case. Then they must say what happened with as much detail as they can bring themselves to give: you must not lead it.
I want to tell you about a great advocate in the West Country who had a brilliant technique in chief. He knew the proof inside out. He barely looked at the witness statement. He engaged the witness with his eyes and he eased out their account. It was a triumph of personality over technique. I do not pretend that you should start in that way, but if you can achieve a rapport with your witnesses, you are a long way to becoming a good advocate.
Bear in mind however that, although the jury expects you to be sympathetic and polite to your witnesses, it will become uncomfortable if you are seen to help them too much. Plainly that can only benefit the cross examiner, who follows you. I try to become almost invisible once the witness is beginning to tell their story.
So examination in chief is an exercise in suppressing your enthusiasm and intervening as little as possible. If you do it well, you will win your cases, time and again.
And here I want to betray a prejudice. Nothing annoys me more than advocates who lead in re-examination. It is a form of unlicensed cheating. The cross-examiner has made ground and the only way you seek to controvert it is by putting words into the witness’s mouth. DONT DO IT. It is second-class advocacy and the fact that you see it happening all the time is no reason for you to do it.
But there is one qualification. Plainly you can lead in some circumstances to clarify an answer that a witness has already given in cross-examination. Of course you can’t introduce new material without leave of the court.
The rule is often said to be – don’t re-examine unless it is absolutely necessary. But I have seen very skilful re-examinations which are absolutely devastating. So that it is a skill well worth acquiring.
I can’t leave the subject without warning you about that nightmare moment when your client has appeared to admit the offence in cross-examination and you have to frame questions which are not leading ones in Re-examination, to try to rescue the position.
Everybody will be watching to see that you don’t cheat by gross leading. The only advice is that it may be your client did not intend to go as far in cross-examination as he did, so that taking him back over the territory may, to some extent, allow him to go back to his original position. But if the admission in cross-examination had been unequivocal, it is far better to ask the Judge for a few minutes and then tender your client strong advice…
Nigel Pascoe QC