By Paul Gregoire and Ugur Nedim
Evidence-in-chief involves a witness being questioned in court by the party that called them to appear. Also referred to as examination-in-chief, this initial questioning establishes the foundation of either a defence or prosecution case, and it occurs prior to cross-examination.
There are limitations to the type of questions a lawyer can ask during evidence-in-chief. Leading questions are prohibited, instead open-ended questions should be asked. Questions must be relevant to proceedings They must not involve hearsay. And they can’t rely on a witness’ opinion.
When then NSW deputy senior public defender Peter Berman SC published his 2002 paper The Ten Commandments of Evidence-In-Chief, he was following the lead of US lawyer Irving Younger, whose 1975 talk The Ten Commandments of Cross-Examination had been widely influential.
Berman was appointed NSW District Court Judge just days after publishing his commandment paper, in which he stressed that the set of rules were needed, as giving evidence-in-chief was becoming less common with the rise of affidavits, so lawyers could no longer rely on their “match fitness”.
Here are the ten golden rules the former judge recommends:
First Commandment: Persuasion
Berman stresses that persuasion is key to establishing evidence-in-chief, as most jurors have formed an opinion by the end of the defence opening. And if evidence-in-chief has established a “favourable preliminary view”, it’s then much harder to undermine this in cross-examination.
The rest of the commandments, Berman explains, are all about how to perform this persuasive evidence-in-chief.
Second Commandment: A Good Start
In establishing a persuasive evidence-in-chief, a lawyer needs to grab the court’s attention from the onset by making it interesting. Setting the scene and delivering facts in chronological order can result in those the evidence is presented to not being “terribly interested in what is to come”.
Berman gives the example of a successful starting point in a case involving a woman’s house having allegedly been burnt down by her ex-husband. The questioning lawyer started with focus on the actual crime, rather than developing the background relationship story beforehand.
Berman stresses that “a good start”, such as this, should be pre-planned.
Third Commandment: Pre-Plan Organisation and Structure
A proof of evidence is a document usually produced with the aid of a solicitor that summarises the witness’ version of events in writing.
Berman states that too often when he hears a lawyer performing evidence-in-chief, they’re simply formulating questions as they read off the proof like it’s a script.
The former judge points out that when a proof of evidence is produced it’s not with the delivery of evidence-in-chief in mind. So, rather than following the strict chronological order of a proof of evidence, an advocate should develop a strategy prior to appearing in court.
Fourth Commandment: Effective Communication
According to Berman, there are three main communication barriers affecting the ability of lawyers to conduct evidence-in-chief in a persuasive manner.
The first barrier is language. He says that rather than using the most easily understood language in questioning witnesses, lawyers often prefer to use words that “a significant proportion of the population is unable to interpret”.
The second is not looking at the person spoken to. Berman observes that lawyers often stare at their notes when a witness is speaking. He posits that without eye contact a witness can feel unsure of their delivery. And this issue is caused as lawyers are trying to avoid silences at the end of answers.
However, any silence produced by a lawyer having to pause and refer to their notes for the next question after the delivery of a witness’ answer is preferable, Berman maintains, as it leaves time for the processing of what the person in the stand has actually said.
The final barrier is the failure of lawyers to listen to a witness’ answers. Just like the eye contact issue, this is usually due to a legal professional trying to avoid silence between answers and questions.
This lack of listening can lead to a disconnect between the lawyer and the witness when spoken evidence differs to what has been expected from the proof of evidence.
Fifth Commandment: Engage the Court
Even if a lawyer employs great communication skills in questioning the witness, this amounts to little if the judge or jurors aren’t listening.
A simple technique can be applied by a lawyer if they find their audience has switched off, which is addressing them at the beginning of a question.
Berman suggests a legal professional can introduce a question with phrases like, “Tell her Honour”, or “Tell the jurors”. This will engage the attention of those addressed and it will also prompt the witness to deliver their evidence directly towards those they’ve been asked to present it to.
Sixth Commandment: No Leading Questions
Berman says that while asking leading questions is against the rules, it doesn’t always stop lawyers from asking them. And the overriding reason that solicitors and barristers should refrain from the use of this form of questioning is that it’s unpersuasive.
The author cites the example of: “Do you tell her Honour that you are a changed man, that you are very, very sorry, and that you will never do anything like this again?” He then advises that no judge is going to be persuaded by a witness simply answering this line of questioning in the affirmative.
Seventh Commandment: Use Exhibits
The job of being a passive listener all day isn’t easy, Berman states. So, in introducing exhibits in any form – “plans, photographs, objects” – the judge and the jurors are then able to engage with evidence in a fresh manner.
Indeed, an object can also enhance the way in which the witness engages with those in the courtroom. And it also serves to have them repeat some of their evidence, as, Berman notes, the repetition of a story is more likely to convince a listener that it is true.
Eighth Commandment: Ask Piggyback Questions
Piggyback questions are ones that incorporate some of the previous answer into its asking. There are two reasons for this. The first is that it improves the flow of information. And the second is that it can serve to repeat important parts of the evidence, thus making it seem more convincing.
Ninth Commandment: Fake Sincerity
By the time a solicitor or barrister questions a witness before the court, they know well what is to be discussed. This can be to the point that their voice sounds dull whilst asking the questions. So, Berman simply advises “faking it”.
“We have to make it look as though we do not know what the witness is going to say,” he writes. “The witness will be encouraged by this show of enthusiasm, and anyone listening to the evidence-in-chief will get the impression that what the witness has to say is worth listening to.”
Tenth Commandment: Don’t Use “Lawyerspeak”
Berman doesn’t really have a final golden rule. So, just to round the commandments off to an even number, he reiterates that lawyers should not stand before a witness and use words that aren’t commonly used by the public in day-to-day life.