Trial Advocacy Notes Summary
Trial Advocacy Notes Summary
V)
1. INTRODUCTION
It is about presenting a case before a dispute resolution forum. According Steven Lubet
(Modern Trial Advocacy) “trials are held in order to allow the parties to persuade the judge or
jury recounting their version of the historical facts.”)
What is the role of the lawyer – to persuade the fact finder to arrive at an opinion
favourable to their client, in accordance with a) substantive law b) relevant procedural law c)
ethics.
Discuss 5 basic UN basic principles on the Role of Lawyers - 1990
1. Access to lawyers and legal services
a. All persons are entitled to call upon the assistance of a lawyer of their choice
to protect and establish their rights.
b. Governments shall ensure that efficient procedures and responsive
mechanisms for effective and equal access to lawyers is provided for all
persons within their territory.
c. Governments shall ensure provision of legal aid
d. Governments and professional associations of lawyers shall promote
programmes to inform the public about their rights and duties under the law.
2. Safeguards in criminal justice matters
a. Governments to ensure persons are immediately informed about right to
lawyers
b. Governments should ensure even those who cannot afford a lawyer are
granted representation
c. Ensure access to a lawyer not later than 48 hours from detention
d. Detained people shall have time and facilities to consult with lawyers.
3. Qualifications and training
a. Lawyers are required to have appropriate training and be made aware of
ethical duties
b. There should be no discrimination against a person with respect to entry into
or continued practice.
4. Duties and responsibilities
a. Lawyers shall at all times maintain honour and dignity of their profession as
agents of the administration of justice.
b. Duties to their clients shall include advising clients on rights and obligations,
assisting clients in every appropriate way to protect interests and assisting
clients before courts/tribunals.
c. Lawyers shall always loyally respect interests of their clients
d. Lawyers in upholding clients interests should seek to uphold human rights
and fundamental freedoms.
5. Guarantees for the functioning of lawyers
a. Governments shall ensure lawyers can practice without fear, intimidation or
harassment, be able to travel freely and not suffer sanctions.
b. Security should be safeguarded
c. Lawyers shall not be identified with their clients or their clients causes
because of representing them.
d. Governments shall recognize and respect that all communications and
consultations between lawyers and their clients are confidential.
6. Freedom of expression and association
a. Right to take part in public discussion of matters concerning law
7. Professional association of lawyers
a. Free to form and join self-governing professional associations to represent
their interests, promote their continuing education and training and to protect
their professional integrity.
8. Disciplinary proceedings
a. Codes of conduct shall be established through appropriate organs and
legislation
b. Charges and complaints shall be processed expeditiously and fairly
c. All disciplinary proceedings shall be determined in accordance the code of
professional conduct.
a) Dress
Appropriate court dress for lawyers is dark coloured suits or dresses (black, dark grey or
blue – para 10 LSK dress code). Ties should be understated-loud ties and cartoon
characters on ties may be viewed as improper (para 13 LSK dress code). Be aware of the
smaller details, such as ensuring that shoes are clean and that shirt top collar buttons are
fastened. If a robe is required, ensure it is uncreased, of a suitable size and in good repair.
Male witnesses should dress in collar and tie, and female witnesses should dress smartly
and conservatively.
LSK standard of honesty and integrity standard 12 rule requires the Advocate is under a duty
to dress modestly and in a manner that lends itself to the dignity of the legal profession.
NB – Circular on judicial dress code and address
- Wigs were discarded
b) Punctuality
Always ensure that you are at the court at least 30 minutes before the court’s starting time.
Judges and the public expect lawyers to be punctual: repeated tardiness without adequate
explanations may be treated as contempt of court.
c) Introductions
Trial lawyers should always introduce themselves to the judge who will be presiding in their
cases. If in chambers, await invitation to sit down.
d) How to introduce yourself to a judge
The introduction must be brief and along the following lines:
Greeting, name, firm, whom you appear for, when the case is due, what the case is coming
up for.
“Good morning, Judge. I am Mary Juma, of the firm of Juma and Partners, and I am
appearing for the plaintiff in the case of John vs Anne trial which is due to start today.”
“Judge” is the mode of address to a High Court judge in chambers. In court, counsel should
refers to the judge as “My Lord”.
Finally, court etiquette requires you to be accompanied by your opponent when seeing the
presiding officer out of court, but this rule does not apply to pre-trial introductions.
If you have not previously met your opponent, or any of the court officials (like the
stenographer, interpreter, court orderly), you should formally introduce yourself to them as
well.
e) Modes of address
i. Magistrate’s Courts
In the Magistrate’s courts, presiding officers are addressed as “Your Honour” during court
proceedings and by their normal civil titles.
ii) High Court, Court of Appeal and Supreme Court
The presiding officer is addressed as “My Lord” in court, and as ‘judge’ out of court or in
chambers. Note, too, that the informal ‘you’ and ‘your’ is replaced by “Your Lordship”- for
example.
As the term ‘My Lord’ is addressed to the office of the High Court judge, it is preferable to
address both male and female High Court judges in this way. A female judge may prefer to
be addressed as ‘Her Ladyship’ or “My Lady”– establish her preference prior to the
commencement of the trial by checking with her registrar.
f) Behaviour in court
i. Entering and leaving the courtroom
When the judge enters the courtroom, the orderly will shout, “Rise in Court” at which all
those present in the courtroom must stand. When the judge reaches the bench, he or she
will stand, bow slightly and then sit down. This is the cue everyone in the courtroom to sit as
well. When the judge leaves the courtroom, the orderly again announces that everyone
should rise – remain standing until the judge is out of the courtroom.
Everyone (lawyers, witnesses and members of the public) entering or leaving the courtroom
when it is in session should: when leaving, briefly pause at the exit door, turn towards the
judge bow slightly, and then exit; and when entering, enter the courtroom, pause, bow
slightly towards the judge, and then proceed to you place.
Should you wish to deliver a message to one of the trial lawyers while the court is in session,
enter the courtroom and quietly sit down next to the lawyer concerned. Then write out a
message, leaving the note with the person concerned, and quietly exit. Also limit such
interventions to matters that cannot wait until the next adjournment.
ii) Do not wander or walk about in court
The general rule is that a lawyer appearing in a trial should not move away from his position
without the permission of the court. Do not walk around when asking the witness questions
or making submissions. In a criminal case when the defense lawyer wishes to speak to his
client (the accused who is standing in the dock), the defense lawyer will have to request the
court’s permission: e.g.“My Lord, may I approach the accused for instructions on that point?”
Note that if a longer discussion is required, it is more appropriate to request the court for a
short adjournment.
iii) Always stand when addressing and when being addressed by the judge
When the judge speaks to you as a trial lawyer appearing in the matters before him, you
should immediately stand. When the judge is addressing your opponent, you must sit. For
example, if you are busy cross-examining an opposition witness, and your opponent stands
up to object, you must immediately sit. This indicates to the judge – whose attention has
been focused on you – that your opponent is standing, and the judge will then focus on your
opponent to hear the basis of his objection.
Only if the judge is addressing both you and your opponent simultaneously (for example,
discussing a possible postponement date), should you both be standing at the same time.
You are required to stand when indicating your acceptance of a court ruling: for example,
when the judge completes the delivery of the judgment, both you and your opponent should
stand up to indicate your acceptance of the decision by saying: “As the court pleases/most
obliged.”
iv) Get the judge’s permission before moving on to the next stage of the trial
After each stage of a trial, or after an intervention by the judge, first get his permission before
continuing.
For example: during plea proceedings in a criminal trial after the accused has pleaded not
guilty, you will inform the court what the basis of the accused’s defense is.
Magistrate (to accused): how do you plead?
Accused: not guilty, your worship
Defense counsel: Your Honour, I confirm that the accused’s plea is in accordance with my
instructions. May I proceed?
[Only continue once the magistrate assents.]
g) Witnesses
When being questioned during examination-in-chief or cross-examination, witnesses must
look at the lawyer putting the question, and then look at the judge when answering the
question. Should the witness not be trained to do so, the judge is likely to become irritated
by being treated like an interested observer to a conversation between the lawyer and the
witness.
Witnesses yet to be called must wait outside the courtroom (with the exception of certain
expert witness who may be required to hear that evidence for the purposes of their later
testimony).
h) Court terminology
Trial lawyers must become familiar with a number of important words and phrases used in
court proceedings:
i) “I submit …” During argument at the close of the trial, or argument on specific
issues that arise during the trial (for example, following an objection), trial lawyers make
submissions to the court on the correct approach, thus: “My Lord, I submit that the court
should find…” Do not use: “I think”, “I aver”; “I consider”; “I am of the opinion”; “I declare”.
ii) “As the court pleases” This is a stock response phrase indicating the acceptance
of decisions by the court, or is used where counsel wishes to indicate that he has completed
a submission. Do not use phrases like “as pleases the court”; “the court pleases”; OK. ‘My
Lord”; “Alright” or “I’m finished, ‘My Lord”.
Direct questions from the bench, should however, be answered with a simple “yes” or
“no”.e.g.
iii) “If the court will bear with me” This is a phrase used to request the court to be
patient for a little while as you find a misplaced note or authority.
iv) “With respect”/ “With great respect”/ “With the greatest respect”: A submission
preceded by the term “with respect” indicates in advance to the judge that you do not agree
with the view stated by him on the issue being discussed. Should the debate become more
heated, and your disagreement with the judge’s position stronger than, you may show your
intensified disagreement by prefacing your submission by saying “with great respect, Your
Lordship”. Should you reach a stage in your interaction with the court where you consider
the court’s position to be utterly without foundation, you may indicate your disagreement by
prefacing your response: “with the greatest respect…” Thus, the greater the professed
respect, the less the actual respect for the court’s point of view.
v) “I am indebted to the court”; This is the traditional method of saying ‘Thank you’ in
court proceedings, and still is in widespread use. E.g.
vi) “My instructions are…”: Often your client may insist you make an application to,
or request of the court that is ill-advised, or it may be that a version you are instructed to put
a witness is manifestly absurd. In most cases, you will have a duty to comply with your
client’s wishes. If you are challenged (usually in an incredulous tones by the judge, your
response that those were your instructions is sufficient to indicate that you are merely
carrying out you legal duty, and are not necessarily convinced about the legal or tactical
soundness of your submissions.)
vii) “I withdraw the question” or “correction”: Often counsel will put a question to a
witness (either in examination-in-chief or cross-examination), and then decide to change or
modify the question. The correct method to do so is:
viii) “My learned friend”. The correct method of referring to your opponent in all courts
is “my learned friend” It is also preferable to refer to your opponent by name: “Mr. John has
submitted that…..”
ix) References to judges not before court: Refer to other judges as in the formal
written references: ‘His Lordship’, Mr. Justice Paul, in his judgment…” When addressing the
court, avoid referring to other judges as “Your brother, Paul” – this reference is only used by
judges themselves when referring to other judges.
x) Postponements; adjournments; remands; standing-down:
The term postponement is used when a case or matter that has not yet commenced is
postponed to a later date.
Once a matter has commenced, you have proceedings and proceedings are always
adjourned. (Adjournments can be any length of time, from a few minutes to weeks or even
months. During court hours, the morning tea-break is referred to as the ‘short’ adjournment,
whilst the lunch-break is referred to as the “long adjournment”).
A remand refers to the postponement to another date while the accused is in custody on a
criminal charge, as in; “Your Lordship, I ask that the accused be remanded in custody to the
3rd of June for trial.”
Only a witness can stand down (that is, literally step down from the witness box). Matters or
proceedings cannot stand-down –they can only be postponed or adjourned.
xi) Perception of bias
‘Justice must not only be done, but also be seen to done.’
This adaption of the quoted dictum from the old English case of R v Sussex Justices holds
true for all aspects of the trial. For example, the client you are defending on a criminal
charge may not understand your undue familiarity with the prosecutor (who may be an ex-
colleague and good friend). Maintain a professional reserve in your dealings with your court
opponents, lest your client interpret your later behavior during the trial (like a concession
properly made) as having been influenced by your friendship with the opponent. For the
same reason , if the judge in your matter is a friend or close acquaintance, do not refer to
him by his first name in the presence of your opponent , nor should you discuss social
matters when seeing in chambers in the company of your opponent.
xii) Humour in court
Trial lawyers should, as a rule, avoid attempts at humour during the trial. This is especially
true for criminal trials, where attempts at humour may be construed as trivializing a serious
matter.
5. CONFLICTS OF INTEREST
Lord Hewart – Justice should not only be done, but should manifestly and undoubtedly be
seen to be done – Lord Hewart in R v Sussex.
Legal basis – Article 75 (1) Constitution, Section 55 Advocates Act Rules 9 and 6 of the
LSK code of standards of professional practice and ethical conduct.
An advocate should refrain from acting where
- Where he is representing two clients with opposing interest e.g. car crash.
- Advocates own interest conflicts e.g. selling or buying from a client or non-financial
where an advocate is devout catholic and has a pro-choice client.
- Successive and vicarious representation – used to rep the husband now rep the wife
apply the substantial relationship test i.e. is it likely that the advocate has obtained
information from acting for a former client that is highly likely to be detrimental to the
former client if used in his new case. King Woolen Mills Ltd (formerly known as
Manchester Outfitters Suiting Division Ltd & another v M/s Kaplan & Stratton
Advocates. The advocates had acted for both the lenders (respondents) and for the
borrowers (appellants) in a loan agreement. When a dispute arose, the appellants
brought an application to restrain Kaplan Stratton from acting for any companies
associated with the lenders. The court allowed the application and the learned judge
stated that “I have no doubt in my mind that the respondents will consciously or
unconsciously…use the confidential information acquired from the appellant…The
result will be that the appellants will suffer great injustice and prejudice during the trial
of the main suit.” Vicarious representation means that all members of a firm are
treated as though they have represented a client. The rationale behind this is that
advocates are more likely to discuss amongst themselves the matters that they are
handling.
- Advocate cannot act as a witness.
Exceptions
- Informed consent of the client
- Information barriers
- Substantial common interest
If an advocate breaches his duty to avoid conflict there are penalties that may be levied
against him by the LSK the Advocates Complaints Commission s53 AA and the CJ.
Conflict between the duty to the court and the duty to the client – the duty to the court takes
precedence. The advancing of client’s interest must be consistent with the advancing of the
advocate’s role as an officer of the court.
Confession of guilt to the advocate – LSK Professional conduct and etiquette rule 20(b)
states that the object of privilege is so that the client can confide fully and without reservation
to the advocate. In criminal trials it is not about innocence, but if offence has been proven by
the prosecution. Art 50(2)(l) protects against self-incrimination
The mere confession of guilt does not preclude one from representation. The advocate is
under a duty to do all he can for the client without deliberately misleading the court.
The advocate may object to the competence of the court, the form of indictment, the
sufficiency/admissibility of evidence. He may NOT suggest that someone else committed the
offence or call evidence he knows is false. Cannot make a case inconsistent with the
confession.
Non-clear confession – inconsistent statements by a client to advocate before and during
proceedings. Pointers to guilt but which are not a clear confession.
The Cab Rank rule
An advocate is obliged to accept a brief unless he has good reason for refusing to do so.
The rationale behind this is that every person is entitled to legal representation in a court of
law. Advocates are public servants and may be called upon just as a doctor may be called
upon to operate. It is derived from the concept of taxis waiting in a taxi rank for potential
clients. Basically, a cabbie cannot turn away a fare-paying passenger (subject to limited
exceptions).
Application in Kenya – applicable through the following laws
- Right to justice for all under article 48
- Right to legal rep for arrested persons by an advocate of their choice – Art 50
- Rule 6 code provides that the cab rank rule may be waived if there is a conflict.
When you cannot decline brief
- Thinks the client has limited chances of success – you cannot assume the role of a
judge, it undermines the constitutional presumption of innocence
- Does not think much of the client as a person
- Thinks the facts of the case are unsavoury.
When you can decline brief
- If the client cannot afford the fee
- If the advocate has been consulted by the other side
- If the advocate has confidential information on the other side
- If he does not have the necessary skill or experience to conduct the case
competently
- If he has too much work and will not be able to handle the brief well.
- If an advocate is already acting unless the advocate gives his consent, has refused
to act further or the client has withdrawn instructions from the other advocate.
- The client wants to pursue the case just so as to injure the other party
- The client is not giving clear instructions.
Advantages – access to justice for all, provides justification for defending people the public
do not like, even those accused of the most heinous crimes will be represented.
Disadvantages – no mechanism in place to ensure compliance, and advocate who feels
forced to represent is unlikely to do their best.
Recusal of judicial officers
There is a requirement of recusal based on any appearance of bias. Rationale – right to fair
trial 50(1) and confidence in the judiciary.
Test Kamplesh Pattni v Republic – objective test based on the reasonable apprehension of
bias by a fair-minded and independent individual with knowledge of all the facts.
Advocate needs to consider utmost tact – remember judicial officers are human and do not
like to be told in open court. They still need to maintain objectivity in considering application
for recusal. Inform the judicial officer in advance out of courtesy in chambers.
Grounds for recusal
Rule 5 of the JSCCE sets out the circumstances under which a judicial officer must recuse
themselves. These situations arise when there is reasonable apprehension that there is a
question regarding his impartiality. Impartiality is of concern where the judicial officer:
a. Has a personal bias or prejudice concerning a party or his advocate;
b. Has served as an advocate in the matter in controversy;
c. His family or a close relation has a financial or any other interest in the proceeding;
d. His spouse, or a person related to either of them or a friend is a party to the
proceeding;
e. Has personal knowledge of disputed evidentiary facts concerning the proceedings; or
f. Is a party to the proceedings.
9. EXAMINATION IN CHIEF
Examination in chief is covered by Part IV of the Evidence Act (sections 148-160)
Statutory basis – Order 18 Rule 3 evidence to be taken orally in court.
Section 300 CPC – prosecution open the case against the accused and call witnesses and
adduce evidence in support.
Examination-in-chief is the process of calling witnesses to support the elements of your
case. This can be done through the witnesses’ own testimony, or through items of evidence
(objects or documents). Witnesses rely on memory. First tell the whole story-then return to
emphasize.
The essence of the examination-in-chief is to lead the witness from given point in time,
taking him through the sequence of events step-by-step to a later point in time. Let the
witness present his version (‘tell his story’) in chronological sequence without any diversion
or detailed explanations- once the judge has heard the outline of the story, you can return to
the specific events. Ensure that the evidence present in court should be legally sufficient to
meet the burden of proof.
Purpose – introduce undisputed facts, enhance likelihood of disputed facts, lay foundation
for introducing exhibits, reflect on witnesses credibility.
Make sure to use language the witness understands, keep eye contact, project your voice,
keep a good pace and posture.
In pre-trial preparation you will have prepared a witness sheet for each of the witnesses you
intend on calling. You may prepare questions based on this and ensure each important point
on the statement is asked.
The essential purpose of leading the witness in-chief is to ensure that the witness deals with
the issue or elements identified in your trial plan (may be the elements of a crime/defence).
His manner of testifying must be persuasive. The key is to remember that your witness’s
testimony paints pictures in the mind of the judge – if that picture is a dull summary in black-
and-white, it will be much less persuasive than a vivid, dramatic rendition in technicolor.
Always go chronologically and know your objects with each witness. A witness who is at
ease, to whom you gave smiled and gently settled with clear opening questions is more
likely to say what you require.
- Leading the witness
The core skill in leading a witness from a given starting point to a pre-
determined end-point is the simple sentence. “What happened next?”
Remember the acronym ‘D.T.P.A?’ (DATE-TIME-PLACE?-ACTION?) as a
device for starting your examination-in-chief of a witness.
Counsel: Mr. Jones, on Sunday 1 April 1992 (date), at 2 o’clock in the
afternoon (time), where were you (place) and what were you doing (action)?
Jones: I was walking in Sleep street going towards Down Street in Umlazi.
Counsel: What happened next?
Jones: [Continue until basic story is completed – then return to deal with
certain aspects in details]
Deal specifically with any weaknesses in the witness’s version (defuse
landmines)
Finally, at the conclusion of the witness’s evidence, indicate to the court that
you have finished. Never conclude your evidence with an open-ended
invitation to the witness to add to his testimony, such as: “Is there anything
else you would wish to tell the court?” This is a recipe for disaster, as you
never know the witness will come up with.
Leading questions are not permitted in examination-in-chief.
Non-leading questions begin with – who, what, why, when, where, how, please describe?
These are examples of open questions. [TIP: 4 WIVES/1 HUSBAND]
Closed questions are either word choice questions – “was the man tall or short or average
height?” or yes/no questions – “was the man tall?”. Only ask closed questions after laying
your foundations. Also, be careful not to suggest the correct answer with your voice. Note to
provide a genuine choice and not disguise a leading question “was it so dark you could not
have seen anything, or were you able to see well enough to see the burglars face?”
Be careful not to overuse “what happened next?” instead piggyback by using part of the last
answer in the next question.
Look at the judge’s pen – make sure your questions are at the pace of the judges writing.
You may come up with signals with the witness to indicate when the witness should
complete a statement and then stop or to continue with his answer.
Both the lawyer and the witness must project their voices and speak in a clear, audible
manner. Also speak slowly and pause between submissions –the court also needs time to
consider the submissions made. Note that if your witness is inaudible this will be noted in
the official record (proceedings), any physical demonstrations in court shall be described
accurately by the advocate, for the record.
- Order of calling witnesses
Your trial strategy (overall plan) will determine the order in which you call your
witnesses. In some cases, you may want to call your best witness first, because the
other witnesses merely corroborate his version; in others you may call your best
witness last in order to leave a strong, positive impression in the mind of the court.
In criminal cases, the accused must be called first, or else a negative inference may
be drawn by the court.
- Hostile witnesses
It may happen that a witness you have consulted with for trial suddenly tries to
undermine your client’s case once he or she is testifying in the witness box. Should
this happen, the trial lawyer has to decide to what extent the witness’ evidence will
hurt his client’s case if it is left uncontested. The options are:
To merely stop evading the witness once the antipathy towards your case
becomes apparent; or
To prove the witness’s inconsistent prior statement against him; or
To apply for the witness to be declared a hostile witness and if the application
is successful, to cross-examine the witness.
- Objections
The general rule is only to formally object if it is really necessary. If your opponent
asks leading questions during his exam in chief you should warn him a few times by
a whisper before standing up to object.
If you must object just stand up the court will direct its attention at you and your
opponent will sit down. You may then state the basis of your objection. There is no
need to yell objection!
- Mannerisms
Whilst leading your witness, try to eliminate mannerisms that may irritate or distract
the court, such as:
Clicking you pen;
Smacking your lips;
Jingling your keys;
Putting a hand in your pocket while leading the witness: or
Repeating your witness’s answer immediately after it is given.
10 commandments of examination in chief
1. A bold start is important
2. Be prepared
3. Know your audience
4. Thou shall not go on a fishing expedition
5. Do not ask leading questions
6. Thou shalt use piggy-back questions – using the answer used in the previous
question to ask the next question. It helps create a chronological order.
7. Thou shalt not ask stupid questions.
8. Thou shalt not argue, just ask the question. Do not attempt to force a favorable
answer.
9. Fake sincerity
10. The final question should be the most important
Section 149 of the Evidence Act which states that a leading question is any question
suggesting the answer which the person putting it wishes or expects to receive or assumes
the existence of disputed facts as to which the witness is yet to testify. Section 150 of the
EA states that a leading question must not, if objected to by the adverse party, be asked in
an examination in chief or in a re-examination except with permission of the court. The court
will permit a leading question on matters which are introductory or undisputed or which have
in its opinion been already sufficiently proved or have been consented to by both parties to
save time. However, leading questions may be asked in a cross examination per section 151
EA.
The general rule at common law is that a witness cannot be asked in chief whether he had
formerly made a statement consistent with his present testimony. This is referred to as the
rule against self-corroboration. Two exceptions to the rule are where the complaint should
have been made voluntarily and where the complaint is made at the first opportunity after the
offence.
10. CROSS EXAMINATION
Statutory basis
Civil Procedure Rules – Order 18 Rule 6
The Constitution of Kenya dedicates entire 3 articles to the rights granted to an accused.
Article 50 (2) (k) of the Constitution states that, “every accused person has the right to a fair
trial which includes the right to adduce and challenge evidence.” This just basically gives an
accused person the right to give evidence that supports his case but most importantly it
gives him the right to cross examine any witness called by the prosecution so as to
challenge either its truth or its admissibility.
Section 148 a witness to character may be cross examined. Section 151 allows the use of
leading questions in Cross Examination. S153 may be cross examined on previous
statements reduced intro writing. S154 may be asked questions to test accuracy, veracity or
credibility.
The Criminal Procedure Code is the statute that guides the conduct of criminal trials in all
courts in Kenya. Section 302 of the Criminal Procedure Code states that, “a witness called
for the prosecution shall be subject to cross examination by the accused person or his
advocate, and to re-examination by the advocate for the prosecution”. Section 307 talks
about the right of an accused to be examined.
Purpose – enhance your case, detract the opponent’s case, discredit evidence given in
chief, discredit witness as a person, reflect on credibility of another witness.
There are at least two different types of cross examination.
1. Supportive (Concession Based) Cross – Examination: This type of cross is
employed when you want to ask questions and get answers that support and
advance your case. In a supportive cross, you won’t use your questions to attack,
pillage and plunder the witness. Instead, you use cross examination to obtain
favourable information, for example admissions, fill-in-the-gaps in the story or facts
from the witness. If you can develop favourable evidence from the opposition’s
witness, you can then argue, “their own witness said (insert the testimony favourable
to your position).” It adds credibility to your evidence from an opposition witness;
2. Discrediting Cross – Examination: this occurs when you attempt to discredit the
believability of a witness’ factual testimony by showing that it doesn’t jibe (not
matching) with common sense and/or with what others say.
(a) Discuss the rules that an advocate must adhere to in order to minimize the
problems and perils of cross-examination and execute it effectively.
The objective of cross-examination is to ensure that your client’s version of events is
preferred to the version of the witness you are cross-examining. If you are acting for the
accused in a criminal case, your aim is to ensure that at the conclusion of your cross-
examination of the state witness, your client’s version remains reasonably possibly true. In
civil cases, your client’s version must be the more probable version at the conclusion of the
cross-examination.
- One tactic to create doubt in the mind of the court is to obtain concessions from the
state witness.
Defence counsel: Sgt Jones, I’m sure you will agree me it is not easy to identify a
person by moonlight?
Sgt Jones: It’s not easy.
Defence counsel: And you only saw the person who jumped over the wall for a fleeting
moment?
Sgt Jones: I suppose so.
(b) Give an outline of the critical rules or warnings regarding what an advocate
must not do in re-examination.
- Make statements supporting your client’s version, do not ask open ended questions
Prosecutor. When the deceased stood in front of you, you could see he was drunk –
correct?
The advantage of putting statements instead of asking questions is that you restrict
witnesses to merely confirming or denying assertions put to them. This way, you
keep control of the witnesses, and give them very little scope to give detailed
responses.
Although the statement plus ‘tail’ is your main cross-examination device, open-ended
questions may still be used during cross-examination for tactical purposes. However,
only use an open-ended question if you are sure that the witness’s answer cannot
hurt your case.
ii. Frame your question to elicit only one item of information at a time
Counsel: Is it not correct that you stood at the door for five minutes before
entering and stabbing the complainant?
Witness: Yes
(Does this mean the witness has agreed with all the four allegations contained in
the question?)
iii. Do not formulate sloppy or imprecise questions – you must ensure that the
question posed only permits the answer or range of answers you intend.
iv. Maintain your demeanour – keep a poker face. Show no outward signs that the
answer has hurt you
v. Do not be enticed into arguing with the witness – focus on your cross-
examination objectives.
vi. Watch the judge’s pen – pace your questions in cross-examination to keep up
with the judges writing speed (unless your cross requires a quick follow up
question).
vii. Never ask why – this is an open-ended question and may be damaging.
viii. Put forward your client’s version and see if the witness contradicts, modifies or
otherwise impacts your client’s version. Put your client’s version after first
highlighting your client’s version as being more probable than the version of the
witness being cross-examined
ix. Refrain from asking one question too many – when you strike oil, stop digging.
Defence counsel: Who do you say bit off the plaintiff’s tongue?
Eye-witness: The defendant did
Defence counsel: Did you actually see the defendant bite off the plaintiffs
tongue?
Eye-witness: No, Sir, I did not.
(At this point, defence counsel should have ended his cross-examination and
have sat down, but he did not).
xi. Indicate relevance where the court tries to get you to abandon your line of
questioning.
xii. Do not interrupt the witness – let the court intervene to reprimand the witness.
You do not want to seem like you are badgering the witness or that you are afraid
of the full answer.
Cross-examination rules
1. Get in, get what you want and leave – do not ask excessive questions
2. When you get the answer you are looking for, stop asking questions – do not allow
witnesses to backtrack
3. Never ask a question to which you do not already know the answer to. Cross is not a
fishing expedition – the purpose is to draw attention to your case and make the judge
see it from your perspective
4. Ask leading questions – allows you to control the witness/narrative.
5. Never ask the witness to explain/why – they will come up with something that may not
be helpful to your case.
6. Do not ask conclusionary questions
7. Never ask the witness for help – “surely you cannot be certain of the identification, I
mean it was really dark, that’s fair isn’t it?” – look unfazed by devastating answers.
8. Ask one question at a time – it avoids confusion and lengthy explanations.
9. When putting your case, tell the witness he disagrees with it.
10. Confrontations may be necessary – bounce off what the witness says for rhythm.
Cross-examination ethics
o Attacking the character of a witness – it is permitted to a certain level to aid in
a fair trial.
o Confusing or misleading cross-examination – you are entitled to object if the
cross of your witness is either deliberately or unintentionally confusing or
misleading e.g. the cross-examiner assuming a fact which is not yet in
evidence.
o Abusive cross-examination – the court has a duty to protect witnesses from
abusive cross-examination. Apart from it being unethical, it also carries the
danger of the loss of the sympathy for your case.
o Contradictions and normal discrepancies – some discrepancies are normal it
is unethical to draw adverse inferences as a result.
11. RE-EXAMINATION
After a witness has been cross- examined, the trial lawyer who led the witness in-chief has
the right to re-examine the witness (there is no obligation to re-examine). Sometimes re-
examination can highlight to the court the areas you think are the weakest in your witness
and by not doing it you may make it look as if you feel your witness has done well even
where he hasn’t.
The purpose of re-examination is to give the lawyer who called the witness an
opportunity to lead the witness again in order to:
Clarify evidence that has been left in a confused state after cross-examination or;
Place in context evidence that may have left the court with a mis-leading impression.
One circumstance for re-examination is where the cross has opened up a new area for
exploration which you would not have been allowed to explore in an examination in chief.
A three-stage approach to re-examination would be salvage, clarification, massacre –
if your opponent in cross opened the door, take advantage here!
Defence Counsel: Did you actually see the defendant bite off the plaintiff’s tongue?
Eye Witness: No, sir, I did not.
Defence Counsel: Thank you. I have no further questions for you.
Re-exam: You told the court the defendant bit off Ps tongue, how do you know
this?
Witness: I know this because I saw the defendant spit the tongue out.
Re-examination procedure – while your witness being cross-examined, make notes about
items of evidence that are left confused or incomplete during cross-examination. In re-exam
it is accepted that you may bring the witness being re-examined to the relevant point in
evidence by repetition or leading question.
Things to remember when re-examining
Re-examination is confined to issues that were covered in cross-examination.
Should you wish to ask new questions beyond this, you have to seek court’s leave.
Choose your words carefully so that the witness knows exactly what the re-
examination intends to focus.
Do not ask questions in re-examination unless you are sure the witness knows the
answer.
Do not ask leading questions during re-examination.
12. CLOSING ARGUMENT
Statutory basis
- Civil – Order 18 Rule 2 and 3 – the party beginning shall have the right to address
the court at the conclusion.
- Criminal – s306/s311 CPC if accused does not intend to give evidence then
prosecution may sum up.
S307 the accused may sum up his case after examining witnesses.
Why?
- To consolidate all the evidence that has been adduced
- To link together the components of the trial
- To argue out the case from the client’s perspective
- To make the prayer of what you are seeking.
- It must complement and encompass the evidence in the case.
How?
- Theory – logical movement from fact to conclusion based on admissions by opposite
side, undisputed facts, common sense, credibility of witness and is legally sufficient.
- Theme – important to have it present in closing argument.
- Story – still important as a sum up. It establishes client as the centre of the story,
engages fact finder as the hero to rectify the disruption and save the client from
further injustice.
Elements of the closing argument
1. Conclusion – flows from the evidence
2. Inference – a deduction drawn from a known fact
3. Detail and circumstantial evidence – that was earlier gathered in examination in chief
and in cross-examination.
4. Analogy – draw from everyday human behaviour.
5. Allusion – a literary reference to add persuasive force
6. Stories – to humanize the client
7. Credibility and motive -comment on and compare the motive and credibility of
witnesses, what came from impeachment? Directly compare testimony that came
from witnesses.
8. Weight and evidence – why one version is preferable to another, why some facts
should be accepted others rejected, why one piece of evidence is stronger than the
other.
9. Demeanour – Delay or refusal to answer question, sudden loss of temper by
witnesses and anything else you observed.
10. Refutation – refute opposing positions by pointing out errors, inconsistencies,
implausibility’s and contradictions.
11. Application of the law – apply law to the facts.
12. Moral appeal – explain how and why your client’s position makes sense. Shared
values, civic virtues and common motivations.
Topical organisation
1. Issues – factual and legal
2. Elements
3. What is the turning point of the case
4. Issue, Rule, Application, Conclusion.
Palmer and McQuoid’s method
1. Issues – what is the issue, legal test applicable
2. Agreed facts – pretrial, admissions at trial
3. Summary of evidence – witnesses, contested evidence
4. Evaluate summarised evidence
5. Factual conclusion
6. Applying law to the conclusion on facts, overall burden of proof.
P- Point of view R- reason E- evidence S-summary
Ethics in closing argument
- Avoid asserting personal belief
- Misstating the evidence
- Misstating the law
- Misusing the evidence
- Appealing to the fact finders personal interest
- Appealing to emotion based on stereotypes, physical appearance
OPINION EVIDENCE
S48 Evidence Act – opinions made admissible if made by persons specially skilled in that
field, such persons are called experts
S49 facts bearing upon opinions of experts are admissible
- General rule is that evidence is largely inadmissible unless an appropriately qualified
expert can give his opinion on a matter requiring expertise. A non-expert may give
opinion on a matter not calling for expertise as a way of conveying facts perceived.
- Rationale – prevents witnesses from usurping the role of the tribunal of fact which
might otherwise be tempted to accept the opinion as truth rather than draw its own
inferences from facts of the case.
- Expert opinion is admitted because the drawing of certain inferences calls for an
expertise which the tribunal of fact does not possess. It is only admissible on matters
that are not within the experience and knowledge of the tribunal R v Turner. E.g.
psychiatric conditions R v Walker
- Where two or more experts conflict, the judge will look at the sources of knowledge
from which the experts have drawn, in order to decide between the conflicting
testimony.
- There are three requirements that must be met for an expert witness testimony
to be relied upon
i. Expertise – properly qualified in the subject matter, has good practical
experience e.g. someone who has experience and knowledge on drug abuse
through drug projects. Competency must be shown before his testimony is
properly admissible Gatheru s/o Njagwara v R.
ii. Independence – the key is to maintain an impartial opinion even though
you’re called at the behest of one of the parties. If there is a conflict that is
material i.e. you are good friends, the expert should be disqualified.
iii. Reliability - has the technique been tried and tested, has it been the subject
of peer review and publication, its error rate and whether it is generally
accepted, is there sufficient data?
- Duty of assisting the court in resolving facts in issue and arriving at a just conclusion
take precedence over any duties owed to the client.
- Kitismile Mugisha v Uganda – expert opinion is only opinion, it cannot take the place
of substantive evidence.
- The weight to be attached to expert evidence is a matter entirely for the tribunal of
fact
Non-experts
- May give opinion evidence on matters in relation to which it is difficult or virtually
impossible to separate his inferences from the facts on which those inferences are
based e.g. ID of persons, weather, age, speed of a car.
- S50 EA a non-expert can testify to the handwriting of a person if they are acquainted
with the said persons writing.
Ultimate issues rule – prevents both the expert and non-expert witness from expressing an
opinion on the very point that the trier of fact has to decide, namely the ultimate issue.
DOCUMENTARY EVIDENCE
Admissible evidence is referred to as the evidence a court will receive for the purpose of
determining the existence or non-existence of facts in issue. For evidence to be admissible it
must: be relevant, have sufficient weight, have a probative value that outweighs any
prejudicial effect, not adversely affect the fairness of proceedings and not be excluded by
any rules of evidence.
The document itself may be the issue (a will, a contract or a deed) or it may contain
information which a party wishes to put before the court as evidence e.g. correspondence,
expert’s report etc.
A document is subjected to the normal criteria on admissibility i.e. relevance, probative value
and avoidance of prejudice as well as proof of contents and proof of due execution.
S3 IGPA defines document to include any publication and any matter written, expressed or
described upon any substance by means of letters, figures or marks. Today, the word
document means anything in which information of any kind of description is recorded this
includes maps, plans, graphs etc.
Jane Betty v R – the court recognized the use of electronic recording media in the Kenyan
context.
S65(5) EA includes micro-film of a document or the reproduction of images, a copy of a
document or image document derived from the original, a computer print out.
Documents produced by mechanical devices such as cameras, speed guns, video tapes etc
do not purport to be statements by a person but a machine recording the state of affairs –
there admissible.
All documents can either be classified as public documents or private documents.
Public docs s79 all docs forming the acts or records of the acts of a sovereign authority,
official bodies and tribunals, public officers, legislative, judicial or executive whether of Kenya
or of any other country. And public records kept in Kenya of private documents.
Public documents should be certified s80
Two important matters arise with respect to documentary evidence:
i. Proof of contents – at common law, a document was only evidence of its contents
if it was the original document, although in certain circumstances copies or oral
testimony of the contents was permitted. S80 and 81 lay the foundation for
admissibility of certified copies of public documents.
ii. Proof of due execution – proof that the document was written or signed by the
person by whom it purports to have been written or signed.
S64 identifies that proof of documents may be done either by primary or secondary
evidence. Public documents can be proved by secondary evidence s68(1).
For private documents to be admitted it must be proved to be genuine there is also a
requirement that the private document be duly executed (and duly attested where required).
Proof of hand writing can be done through testimonial evidence i.e. testimony of a person
who saw the doc being executed s73. Opinion evidence of a person who is acquainted to the
writing s50.
Comparison of a document usually calls for expert evidence. S71 and 72 state where a doc
requires attestation e.g. a will, it is essential to call one of the attesting witnesses (other
evidence will only be admissible if the attesting witnesses are dead, insane or beyond the
jurisdiction of the court.
Where a party seeks to rely on the contents of a document as direct evidence, he must
adduce primary evidence of the contents. The original document can be in different forms:
signed copies/duplicates, enrolled documents (docs filed in court or other public offices),
admission of contents (where a party admits the contents of a private document)
When can you adduce secondary evidence?
S66 secondary evidence includes certified copies, copies made from the original, copies
made from or compared with the original, counterparts as against parties who did not
execute them, oral accounts of the contents of a document given by some person who has
himself seen it.
- S68(1)(a)(i)(ii)(iii) where a party is served with a notice and fails to deliver the
documents then secondary evidence can be produced.
- S68(c) when the original has been destroyed, lost or when the party producing
having taken all reasonable steps cannot produce it.
- S68(d) when the original is of such a nature as not to be easily movable.
(tombstones, walls, foreign court has custody of the document or required to be
affixed to the wall)
- S68(e) when the original is a public document (can be proved by means of
secondary evidence)
- S68(f) when the original is a document of which a certified copy is permitted by this
Act
- S68(g) when the original consists of numerous accounts or other documents which
cannot conveniently be examined in court.
Extrinsic evidence – general rule it is inadmissible s98 i.e. oral evidence would
contradict, vary, add to or subtract from the terms of the contract. Exceptions s98(i) fraud,
intimidation, illegality, mistake etc can be proved by oral evidence. S98(ii) where the oral
terms are not inconsistent with the terms contained in the document. S98(iii) oral agreement
constituting a condition precedent. S98(iv) subsequent oral agreement to modify or rescind
the terms of the document as long as the doc does not have to be registered. S98 (v) usage
and/or custom exception. S98(vi) facts showing the relation of a document to existing facts.
Admissibility of video evidence s106B – court must be satisfied that
i. the electronic record was produced, fed into or derived from the computer in the
ordinary course of business by a person having lawful control over the computer.
ii. The computer was operating properly or if there was any way in which it was not
operating properly then such malfunction was not of such a nature as to affect the
electronic record or the accuracy of its contents.
iii. Conditions are satisfied by the production of a certificate signed by a person
occupying a responsible position in relation to the operation of the relevant device
or the manager of the relevant activities, identifying the electronic record and the
manner in which it was produced and/or giving the particulars of any device
involved in the production for the purpose of showing that the record was
produced by a computer.