A consideration of one of the most commonly used cross-examination method in the law courts of Malaysia.
There is a report on page 23 of the New Straits Times of 22 December 2009 about the ongoing trial of two former Pakatan Rakyat state executive councilors, Mohd Jamaluddin Radzi and Mohd Osman Mohd Jailul. On the witness stand was Cik Norliza Musa who was there to explain the entrapment meeting between the accused, her and the star witness, Mohd Imran Abdullah, who posed as her boyfriend. Surjan Singh acted for the accused. He asked Norliza for details of the bribery. After she answered, Surjan was reported to have ‘read out the testimony by Imran where the latter said no other transaction was discussed…’ and no doubt with flourish said, ‘I have proven that Imran is a liar and I can prove that you lied. Tell this court now, who is lying, you or Imran?‘
The report continues that ‘[l]ooking pale, Norliza said she was telling the truth.’ I like that bit. Looking pale. I wonder whether the judge caught that and recorded in her notes of evidence something like, ‘Saksi nampak pucat selepas ditanya soalan agak hebat daripada peguamcara pembelaan. Mungkin…‘ (which more or less translates to ‘the witness grew pale after being asked a rather awesome question by the defence’s counsel. Maybe…?)
If you are an avid or even a cursory follower of court trials in our local newspapers, you would inevitably have seen a variation of this type of questioning. The most famous being the, ‘I put it to you that you are lying, or a liar!‘ declared emphatically.
I have heard some of our more senior lawyers confidently advising younger ones that that was the way to cross examine. I have come to realize that to do this is so very wrong and betrays a lack of learning in the art of cross-examination.
I, regrettably, learned this method earlier in my practice because of monkey see, monkey do. From my short time at the Bar, I realize that more so at the Malaysian Bar, one must complement if not corroborate with further reading and contemplation what one learns from mere observation. And just as you shouldn’t believe everything you read in the papers, you shouldn’t believe everything you see in the courts. Indeed, some of them even call for, as Coleridge famously explained where fiction was concerned, ‘a willing suspension of disbelief’.
But back to that method. Even as I practiced it, I felt uncomfortable with it. It never really did anything except provide for a sense of drama to whomever was sitting in the gallery (and there would usually be none, for my cases anyway). So why do I say it betrays a lack of learning?
To understand this, we must first understand the purpose of a trial and what it comprises of. A trial is where the court makes a finding of fact about what happened between the parties after considering the documents tendered as evidence and the testimony of the witnesses. That is all that the trial is about – the ascertainment of the facts.
There are basically two stages to a trial. The first is the trial stage with the examination of witnesses by either side. The second is the submissions stage. This is when your arguments based on the facts proven in court are presented. In legal practice, to argue one’s case is to make a submission. Cross-examination, the likes of which I have shown in the example above, takes place in the trial stage.
David Ross QC in his excellent book titled Advocacy (2nd Edition, Cambridge University Press, 180 pages) at page 32 writes the following:
[3155] There are some forms of leading questions that you should never use:
I put it to you (that you crossed the road).I suggest to you (that you crossed the road).
[3160] Although these forms of leading questions have passed through generations of advocates, you should never use them. Never. One judge described such questions as ‘ineffectual’. There are three reasons why these forms of questions are wrong. First, they are not in everyday speech. Second, they are not questions, even if you add at the end: “What do you say to that?” They are only an invitation to argument. Thrid, you deprive yourself of a question best designed to fit the case and the witness. A formula question is never as good as one that is carefully designed to fit the evidence. It lacks style.
[3170] Lord Hewart CJ railed against these forms of questions so many years ago.
One of ten hears questions put to witnesses by counsel which are really in the nature of an invitation to argument. One hears, for instance, such questions as this: “I suggest to you that …” or “Is your evidence to be taken as suggesting that …” If the witness were a prudent person he would say … “What you suggest is not business of mine. I am not here to make suggestions at all. What are the conclusions to be drawn from my answers is not for me…” What is warranted from the witness is answers to questions of fact. one even hears questions such as: “Do you ask the jury to believe …” [my emphasis].
His Lordship then disparaged that last form.
At page 59, David very kindly explains again why lawyers shouldn’t do this:
… Do not ask the witness to agree with the conclusion. The question is superfluous. Worse, the witness may disagree with you and give perfectly cogent reasons. So watch and listen, and resist the temptation to deliver the coup de grace. The inference or conclusion will be all the more powerful if the fact-finder is led inescapably to it without your baldly stating it.
So clearly, we have it on high authority that this method is just plain wrong and a waste of time. Let me explain further. Firstly, most witnesses no matter how wrong they have been shown to be will ever admit to being a liar.
Secondly, there is no need to show that a witness is lying at the trial stage. Whether they are lying or not is of significance only in the submissions stage. Only rarely does one get an outright admission from a witness that they lied in their testimony. Most of the time, you have to argue before the court to demonstrate they were lying by referring to their testimony as against the other documentary evidence or their own earlier statements. You ‘prove’ that someone is lying by argument, rarely by outright tearful whimpering admission.
Thirdly, since it has no legal purpose whatsoever and only has great dramatic effect, that is why unlearned and dramatic lawyers tend to use it. There is only a downside to using it as David Ross explained earlier i.e. the witness may have a superb reply to your ineffective cross.
So there you have it. This method of ‘I put it to you that you are… lying!’ is wrong, a waste of time and unless it is admitted by the witness may fall foul of Rule 13 of the Legal Profession Rules (Practice and Etiquette) 1978 which reads as follows:
13. Advocate and solicitor to guard against insulting or annoying questions.
An advocate and solicitor shall guard against being made the channel for questions which are only intended to insult or annoy, and to exercise his own judgment as to the substance and form of the question put.
I certainly hope that the public are no longer fooled by such empty dramatic gestures and that lawyers on our part, stop playing the fool.
Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it for him. He has little taste in writing about himself in third person. He feels weird doing it. But the part he finds most tedious is having to pad up the lack of his accomplishments, or share some interesting facts about his rather uneventful life, as if there were some who found that oh-so-interesting; as if he were some famous person, like Michael Jackson. When he writes these biographies, the thought, 'Wei, Jangan Perasaan- ah!' lights up in his head. So he usually just lists what he got involved with, positions he held and blah, blah. But this time. Right here. Right this very moment. Uhuh. This one. This one right here. He's finally telling it like it is.
Posted on 2 January 2010. You can follow any responses to this entry through the RSS 2.0.
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