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Thursday, August 27, 2009

THE ART OF CROSS EXAMINATION (HOSTILE WITNESS)




Salam,

Cross examination is a battle between a defense counsel and a witness. It may look easy and a lot of people (including lawyers) view cross-examination as simple as putting some suggestion after the word 'put'. But trust me my friends, looks can be deceiving. Its easier said than done. Even for DPPs, the most interesting stage in a trial is during the defense stage where we can see DPPs wearing a defense counsel's hat (or songkok) in cross examining the accused (apart from the fact that their superiors won't whack them as the case already called for defense).

It can be a smooth sailing process and a very satisfying one (yes when the witness shredded apart by us) provided that we manage to put forward the defense version through that particular witness. Similarly if we are able to make the witness look hopeless and agreeing to all of our suggestions. But, what if the case involves hostile witnesses? Witnesses who come to court with poker face or Shariff Dol's face well-prepared to disagree with everything that the counsel might throw at him. Witnesses that are so adamant not to being cucuk hidung so that they can brag it later with their colleagues that the famous lawyer was unable to tear him apart. Witnesses who view lawyers with prejudice as loyar buroks who only care for money, money and money.

Even a famous lawyer like Gobind Singh who is well-known for his confrontational, no nonsense style in cross-examining witnesses; does encounter some problems dealing with these kind of species. I noticed today in the 16th day of Teoh Beng Hock's inquest, Mr Gobind got stuck when he was at loggerheads with this particular officer from SPRM. This witness answers swiftly to questions, firmly and unrattled by the barrage of questions and more importantly kept his cool although being slapped with accusation of being a liar in court.

Here's some practical tips to be triumphant against these species of witnesses. Firstly, never treat two witnesses as the same. They might be from a similar balai or department but definitely come to court with different attitude, perception and level of preparation. Some might succumb easily to you even in the first few questions but some may be istiqamah till the end of their sweat to uphold their version. Thus, flexibility is the key word here. Never use the same jurus or style to all witnesses. Pick and choose which is suitable for specific witness. Improvise the pace of questioning, your tone and even your attitude towards the witness.

Secondly, apart from 3 basic rules in advocacy (know the judge, know the law and know the facts); there's no harm in adding a 4th one i.e know your witness. This will be very handy when dealing with professional witnesses such as chemists, doctors, forensics scientists etc. Remember that although they are top scorers in university days; in the court it is our show, our gelanggang and we should be dictating them and not otherwise. A bit of extra homework and research on the particular field of expertise in indeed necessary (we are lawyers only we are not doctors or chemists). If possible, treat them in a professional way (berjurus way) as normally these are unbiased or neutral witnesses that we can convert into our camp.

Thirdly, as its also a battle of wits, to lose your temper against these witnesses is a big no. They are the one who should be cursing us for making them look stupid and as if they know nothing about things they have just told in the examination in chief. But, if the counsel whose the one getting high blood pressure and became angry (beware nanti kena jual), it means half of your task to shake the witness has collapsed and it may be damaging to our client's fate. I always use sentences like "saya tak mahu bergaduh dengan kamu" or "tak perlu main silap mata di sini" or "Yang Arif minta rekodkan demenour saksi yang evasive dalam menjawab soalan". By doing this, you divert your anger towards the judge so that the judge can warn the witness to stop being funny and just stick to his duty that is to answer questions.

Finally, sometimes a little bit of reverse psychology will do the trick. Some witnesses come prepared to be hurled with abuse by the counsel. Nevertheless, when it turn out to be a pleasant session as the counsel keep praising him (bodeking), highlighting his good work or zooming on his credentials, he will definitely be caught by surprise. Among the jurus that is suitable here is for instance jurus belaian jiwa, jurus the pacifier and jurus romancing the witness. The modus operandi is irrelevant here as long as the ultimate aim is achieved that is by soliciting favourable evidence for our clients through these witnesses.

In a nutshell, there's no hard and fast rule in dealing with hostile witnesses. Nevertheless its not rocket science here and what you need is just a mixture of preparation, skill, patience and wit to overcome this obstacle. Wassalam.

2 comments:

  1. dearest imam

    Mr GSD got stuck?? ha ha ha kelakar pun ada. but anyway, its a very interesting this cross exam thingy. a question imam, have you ever experience ur wittness "convert" to the other side? or be shreded after he cakap besar before the proceeding?

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  2. Salam Doremon,

    GSD is still human (so far), mistakes happen and shortcomings not unexpected. When I was a DPP, I encountered a few instances mentioned above. But normally we would've known it before hand. For me I was not persecuting and if it happens that e case is thrown out coz of this hostile witness, let it be. Ive also managed to get an acquittal in 39B case with e help of such witness (OKT's mother)...btw since you're now officially pengkomen paling berjurus #1, why dont you register as follower (ahli berjurus)..after all you were the no 1 ahlil kitab before!

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