Preparing for criminal trial advocacy

PREPARING FOR CRIMINAL TRIAL ADVOCACY 101

EDWARD JOLLY, BARRISTER, LEN KING CHAMBERS

This paper was originally prepared as “how to prepare” guide for the Advocacy Committee’s practical Advocacy Workshops that are run for practitioners in their first five years of practice. These CPD sessions are run by the Advocacy Committee throughout the year and are a great place to “try before you buy”.

The difference between a criminal advocate in Court and a criminal solicitor sitting in an office is the decisions you repeatedly make whilst on your feet at the Bar table and under pressure.

The CCA refer to this as “a forensic decision made by counsel at trial”.

This is a polite way of referring to how you deal with a witness who has not come up to proof (gone “off script”); evidence that you thought was admissible but was ruled inadmissible (and vice versa!); and, objecting to a question but not being able to articulate why you have objected to the question. It also encompasses those occasions where your opposing counsel is suffering from FITHS (syndrome proposed for inclusion in DSM VI). These are just few examples of what can happen during a criminal trial; there are many, many more…

The goal of the Advocacy Committee’s Advocacy Workshops is to engage and trigger a budding advocate’s ‘forensic decision making’ skills. The goal of this paper is to get you to sign up for an Advocacy Workshop. Failing that, it attempts to provide some guidance on how you might prepare for a criminal trial.

PREPARING FOR THE TRIAL

Prior preparation is the only way to deal with the forensic decisions that are guaranteed to arise in criminal trials. Once you are 100% prepared, do some additional preparation, and then a little bit more preparation. There is nothing else required. If someone tells you that there is an alternative approach, they are lying and/or they are grossly intoxicated.

Preparation for a criminal trial starts with the chronology. The process of completing the chronology forces you to order (sequence) and then retain events the subject of the charge(s). In doing so, it can reveal holes in the evidence and the case narrative. It also provides you with an overview of the case.

Consider the following: when a witness gives evidence with the correct sequence of events coupled with a consistent narrative (ie, the same details each time), it allows for the submission that the witness is reliable and credible, and thus truthful. The converse is the submission that when the evidence lacks reliability and credibility, a doubt may arise. You can only confidently identify the significance of the sequence and details of the actual events after having placed them in chronological order. This helps to identify irrelevant evidence that might have seemed important when simply reading the statements.

Once complete, the chronology should identify the elements of the offence that have sufficient evidence, or insufficient evidence, or that there is no evidence to meet an element. The chronology also allows you to categorise and qualify the evidence; is it direct or circumstantial? What is its probative value? For example, a good ratio result with DNA evidence would be highly probative, as opposed to a photo board identification that might have a low probative value. Is the evidence corroborated? Particularly in a complex or large trial, a chronology can rapidly identify if there is corroborative evidence.

In circumstantial cases, the chronology can also identify, for a prosecutor, any potential “explanations” consistent with innocence that will need to be excluded on the prosecution case. This is also helpful for defence counsel.

The chronology will also help you identify any evidence that might require, if prosecuting, the filing of a Discreditable Conduct Notice (section 34P Evidence Act); and for defence counsel, any evidence that needs to be challenged and potentially excluded via a pre-trial application under rule 49 (voir dire).

Once the chronology is complete, the next step in effective preparation is drafting your closing address. This helps you identify the relevant evidence and thus the critical evidence. Importantly, it allows you to speak with authority on what is the real issue for trial. Judges love it when this occurs!

EXAMINATION IN CHIEF (XN)

If you are nervous about conducting an effective examination in chief; fear not, you are in good company. An effective examination in chief is often more difficult than cross examination.

Chronology Example:

CHRONOLOGY – R V KNOBB

Witnesses in criminal trials regularly do not come up to proof, regardless of how many times they have been ‘proofed’. When this happens, even competent counsel can struggle if not properly prepared to lead a witness in chief.

Some advocates prepare their chief by listing the topics on which they are going to ask questions. Other advocates make annotations on the witness statement(s). I suggest that for criminal trials a good habit to begin with is to write your questions in chief in prose.

The purpose of writing out your questions in full is not so you can read them verbatim in Court when you are leading your witness in chief. When a person reads out loud, it shuts down their other senses, such as hearing and seeing what is going on around them and this is not good for your health in a court room.

Writing out your questions in full achieves a number of objectives in one action: • When combined with the already prepared chronology and draft closing address, critical evidence is well and truly embedded in your brain. • It gives a sense of direction, a sense of being prepared, and thus creates confi dence. • It forces you to look at the structure of the question. • You can easily see the sequence of your questions. • It makes it easier to ‘vocalise’ the question (how it will sound in Court). • You can readily identify questions that might provoke an objection; and, • You can identify questions that might trigger a mistrial (more common than you think!).

I make the same recommendation for cross examination questions and your opening and closing addresses as you start down the path of a criminal advocate. The primary reason is that writing out your questions and submissions is effective and effi cient preparation; the process “loads” your case fi rmly into your brain.

When you are on your feet leading your witness in chief, by having written out your questions in advance, you will fi nd that by actively listening to your witness, you will get a feel for how they are ‘tracking’ with their evidence. You will probably see that they provide answers that cover several of your questions. Or, they may not come up to proof with a question you ask, and this may make the next series of your prepared questions redundant.

The critical point is that it is much better to have planned the questions in advance as omitting some of them, when you are on your feet, will cause less stress than trying to articulate a question that goes beyond your scribbles on the witness statement or wasn’t covered in the list of topics you jotted down when reading the Brief.

Once you have notched a few trials on your belt, your written questions in prose will become a general guide that will allow you to readily adapt to any response by a witness. Your written questions do not preclude you from asking questions that will naturally arise from the witness’ response. A good examination in chief should be like an iconic television interview; a conversation skilfully conducted by the interviewer where the person interviewed is providing all of the information (think ‘Graham Norton!’).

Having written out your questions; if you see the word “and” in what you have written, then it is likely to be a compound question (thus requiring more than one answer) and the question should be split into two or more questions.

If you see a full stop or a question mark followed by sentence, then it is again likely to be a compound question.

You don’t need to explain or give a prequel for your questions in chief; just ask the question. It is okay to use headings when you write out your questions and it is okay to use those headings when you are asking questions: “can I take to you back to New Year’s Eve in 2015; were you at home that day?”

In chief, you should be looking to use questions that follow the ‘who, what, when, where, and why’ process. Foolproof! When you are on your feet and fl ummoxed, just say to yourself, ‘who, what, when, where, and why’ and you will be able to reset and continue!

Avoid, wherever possible, the question “and what happened next?”; it’s lazy and might adduce evidence that you are not expecting.

Avoid questions that are too general or vague. For evidence in chief, your questions should be chronological in order, so do not jump around the timeline as this will confuse your witness. With cross examination, you do the complete opposite!

Do not be afraid of leading questions on non-contentious issues. If leading was strictly prohibited in criminal trials they would take three times as long to complete!

CROSS EXAMINATION (XXN)

In preparing for cross examination, the fi rst step is to think of Mount Everest.

The colloquial response of every mountain climber to the question of “why did

you climb [insert name of iconic mountain]?”; is, of course, “because it was there”. The same can be said of cross examination.

Many (all) new criminal advocates are beguiled by the ‘Cruise/Nicholson Syndrome’ (Google “you can’t handle the truth!”) and thus believe that one must cross examine every witness until they break down in the box and confess all, which never happens in ‘real life’.

How many Hollywood series/movies contain devasting scenes of examination in chief?

Your starting point is posing the question to yourself as to whether you in fact need to cross examine a witness.

As with chief, my recommendation is to write the questions out in prose.

All you need are my three golden rules in order to determine if you need to ask questions in cross examination! Your goal in cross examination is to show that a witness or piece of evidence lacks consistency, and/or reliability, and/ or credibility. These three factors, when combined, are the hallmarks of truth.

The Three Golden Rules

1. Substantive Inconsistency • Will my cross examination establish a substantive inconsistency between: ∘ The prosecution witness’s oral evidence and their statement to police? ∘ The witness’s oral evidence and other evidence? 2. Substantive Issue of Credit • Will my cross examination identify a substantive issue of credit regarding the witness? ∘ A question of motive? ∘ Does the witness have an agenda?

∘ Should I use the witness’ antecedents? 3. Compliance with the rule in Browne v

Dunn (1893) 6 R. 67, H.L • Sometimes, all you have are your instructions!

The practical necessity is obvious, as Justice Wells noted in Reid v Kerr (1974) 9 SASR 367 at 373-4:

... a judge (or a jury) is entitled to have presented to him (or them) issues of facts that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne v Dunn has not been observed, have not been brought into direct opposition, and serenely pass one another like two trains in the night.

You will see that the operative word in the fi rst two rules are “substantive”! Just because a witness gives oral evidence about there being four panes of glass and their written statement refers to two panes; it does not mean that you will need to cross examine on this potential inconsistency. Apply the ‘Golden Rules’; is it a substantive inconsistency? If the answer is “no”, then don’t cross examine on that point.

Cross examination that solely focuses on the substantive issues is very powerful and does not go unnoticed by the trier of fact!

TAKING AND DEALING WITH OBJECTIONS

A trial that is replete with counsel objecting, is a trial where the jury or trier of fact is constantly distracted. A distracted jury/judicial offi cer is never desirable, regardless of who you represent.

The purpose of the voir dire is to ‘object’ in advance, to the admissibility of evidence. Thus, well prepared advocates should not have to object to too many substantive questions of admissibility during the trial.

Most objections during trial focus on the question asked (as opposed to the answer). The common objection is usually one of relevance. The second most common objection is that of hearsay. They usually both focus on a loose or clumsy question that is in danger of adducing irrelevant evidence or hearsay evidence. The third common objection usually relates to the form of the question; it might be lacking in precision, or inadvertently misstate the evidence, or it might just be a clumsy question.

For new advocates, I recommend revisiting the Evidence Act 1929, sections 22 through to 25, and 27 to 29 inclusive. It can’t hurt.

CONCLUSION

If, at the end of the day, you are still dazed and confused about criminal advocacy, recall to memory the timehonoured aphorism that criminal barristers swoon at the sound of their own voice. Then pick up the phone and start calling your friendly neighbourhood criminal barrister…

The author has endeavoured to be a windswept and interesting criminal barrister for the last 22 years, largely as a means of concealing the fact that he is mostly dazed and confused. For their entertainment, his colleagues at Len King Chambers allow him to continue to try to practice as a criminal barrister. With the emphasis on ‘practice’… B