Put Your Case!

As an advocate, the last thing you want to hear your opponent – or worse still the judge – saying to you or your client is ‘that was not put’.

It’s a cardinal rule of advocacy that you must ‘put’ your case to the other side’s witness, tell them at least in outline what it is, to give them the opportunity to reply or comment on it. For example, in an assault case, the defence might be: I hit the complainant in self-defence because he was coming at me with a knife. If the advocate fails to ‘put’ that in cross-examination, and the defendant asserts it when he gives evidence, the jury will not be able to measure up what he says against what the witness would have said if he had been asked about it. The defendant will be asked why it was not put, and there are only two answers – either he has made it up and the advocate did not know about it when cross-examining, or the advocate failed to put it and so is incompetent or a chancer. If one has simply overlooked something important, the best and only thing to do is to admit it at once, and if necessary ask for witness to be recalled so that it can be put; when the dreaded words ‘that was not put’ are uttered and the advocate says nothing, the spotlight is on the defendant to explain it.

It applies the other way round: a defendant must be given the opportunity to respond to specific allegations that prosecution witnesses make against him, but this will normally have been done before it gets to cross-examination.

It’s a rule of basic fairness that witnesses, whoever they are, should have that opportunity. If the jury or judge hasn’t assessed how the witness responds to the opposing case being put, it becomes much harder to decide whether the allegation is true and the evidence for it reliable.

In a case of historic sex abuse, for example, where no significant evidence except the word of the defendant and the complainant survives after many years of silence, the defence is likely to be a simple denial, accompanied with the allegation that the complainant has invented the allegation for reasons of their own. The defendant’s case in 2013 may be that he accepts he was in a relationship with the complainant’s mother in 1983, but that he never touched the complainant, and she must be making it up. There’s nothing else to go, so the way in which the witness deals with the defence case, as put to her, is an important part of the evidence for the court to consider. As I suggested in an earlier post, the maxim ‘show don’t tell’ is a good one to follow in cross-examination, but if the defence is that the allegation is a fabrication, the witness must have the opportunity to deal with it squarely. A sincere and outraged denial can speak volumes about the witness’s credibility.

Now there’s no single right way to cross-examine; the advocate’s skill and judgment will guide them on how best to proceed with each witness. A too robust approach with an obviously vulnerable and fragile witness will look like what it is to the jury – bullying –  and will probably be stopped by the judge. It will rebound badly on the defence advocate and the defendant.  Nevertheless, the duty remains to put the defence case.

When the system works properly, each person plays their own role according to the rules. The defence advocate’s duty is to their client. However personally distasteful or unpleasant it may be, they have to be fearless on their client’s behalf. That does not mean that common decency and good manners go out of the window, but you can’t pull your punches either. You have to put your case.

About Francis FitzGibbon QC

I am a QC and member of Doughty Street Chambers, London (www.doughtystreet.co.uk). I practise criminal law. Please do not look for legal advice in this blog as you won't find any. The views expressed here are my own.
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2 Responses to Put Your Case!

  1. Richard Moorhead says:

    I enjoyed both your posts Francis. I am not sure anyone beyond the fringes is seriously suggesting that cases should not be put; though I understand the desire not to give ammunition to the hang em and flog em parade when it comes to the weakening of defendant rights.

    The issue has to be how it is put. And what is really learned once it is put. It would be interesting to know whether the model of polite but robust approach with judge intervening (“probably”) that you advocate is the approach taken as often as it should be. You say, “A sincere and outraged denial can speak volumes about the witness’s credibility.” Well, maybe it can – but does it? I am not as convinced as you are that oratorically convincing denials are – in and of themselves – evidence of the veracity of a witness. I thought instantly of Jonathan Aitken’s ‘sword of truth’ when he announced his intention to sue the Guardian. My recollection is he was undone by a hotel receipt not the strength or otherwise of witness conviction. Again, that is not to say that a witness should be denied the chance to rebut an accusation made against them, – of course they should; but it seems to me a great deal of emphasis is placed on folkish concepts of how we “know” when someone is telling the truth or lying.

    To give you an example, I was struck by this passage from the British Psychology Society report I linked to in my blog (http:\\lawyerwatch.wordpress.com):

    “The vividness of mental imagery is poorly related to memory accuracy (3.vii.23). Some studies have reported a negative vividness–accuracy relationship, with vivid imagers more likely to confuse false with genuine recollection because they are more able to imagine the misleading information as if it had actually occurred (3.vii. 11, 29 & 30). Imagining something happening can lead to distortions in memory, with an individual confusing an imagined event for something that actually happened (3.vii.13 & 14).”

    I suspect sincerity and outrage may be analogous to vividness. I suspect advocates too rely on vividness in painting a picture of witnesses. To suggest a witness is a fantasist is more vivid than to simply suggest they are mistaken; or they are lying. I do not criticise the QC in the Andrade case for that because I have not seen the transcript and, in any event, the clients instructions and rest of the case may (or may not) have given the fantasist suggestion some substance. But if, as the Times report suggested, the judge did indicate misgivings during the trial, it seems to me the case is one in which questions should be asked without anyone jumping to conclusions about the answers. I understand that a solicitor present for most of the cross-examination says this did not happen (on what she saw). Of course, the judge issued a robust defence of the barrister once the death of Ms Andrade was announced. That is consistent with the barrister having done nothing wrong in his eyes, but also with the judge seeing that any concerns he might have had about the cross-examination being (understandably) outweighed by the opprobrium that would be heaped upon the barrister if criticisms were allowed to stand uncorrected. On the evidence that has emerged so far, I prefer the judges view given at the end of the trial; but I do not know.

  2. Pingback: Putting your case: a follow up | Lawyer Watch

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