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.

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The Best Defence?

In June 1996, a man named Milton Brown picked up a woman at a nightclub and took her to his flat where he threatened her with a knife and forced her to have sex with him. Three months later he threatened to strangle another woman unless she had sex with him, and he made her give him oral sex repeatedly, at knife-point, for about 12 hours. At his trial he sacked his lawyers and cross-examined the women himself.

They went through what the trial judge described as an ‘ordeal’:

The whole experience must for those women have been horrifying and it is highly regrettable in my view, and a matter of understandable public concern, that the law as it stands permits a situation where an unrepresented defendant in a sexual assault case has a virtually unfettered right personally to question his victim in such needlessly extended and agonising detail for the obvious purpose of intimidation and humiliation.

He tried to overturn his convictions and reduce his 16-year sentence, but the Court of Appeal were having none of it ([1998] 2 Cr App R 364). They gave guidance to judges on how to control defendants who represented themselves, but within months the government enacted Section 34 of the Youth Justice & Criminal Evidence Act 1999, which simply banned defendants from doing their own cross-examinations in sex cases.

Other parts of the 1999 Act introduced ‘special measures’ to protect witnesses in criminal trials of all kinds, including the use of pre-recorded filmed interviews to stand for evidence in chief, video-links so that the witness did not have to share the courtroom with the defendant, and screens in the courtroom to prevent them seeing one another. These measures are now used routinely and seldom excite comment or objection by the defence. To some extent, they mitigate the undoubted distress that comes with giving evidence in Court.

Over the years, training for police officers who investigate sex offences, and for lawyers who prosecute them, has developed and improved. It may not always be effective: some people lack empathy, sometimes best practice is not followed. Lapses from it are to be deplored. For any truthful complainant in a sex case, it must be horrible to go through the legal process however hard it tries to be accommodating, and it must take courage to face an advocate who tells you that you have made it up, or that you gave your full consent to what happened.

Is there is a better way of trying sex offences? If there is, it has to retain the all-important presumption of innocence and the requirement that the Court must be sure of guilt before it can convict. It would be deplorable if an allegation of a sexual offence was given a special status, that meant it was assumed in advance to be the truth, or needed less good evidence as proof. In a criminal trial, the decision whether a contested allegation is true can only be made after the evidence has been tested, and tested thoroughly If you lose the presumption of innocence, or permit convictions on weak evidence, you return to witchcraft trials, or Stalin-type show trials. We don’t want that.

So evidence must be tested. If my client says to me that the allegation is made up, am I to say to him – sorry, I can’t challenge the witness because it may cause upset, even grievous upset? Suppose the allegation was made up – say by a complainant afraid of admitting infidelity to a partner, or of a strict parent who would punish them for a forbidden relationship. Unless the evidence is subjected to rigorous testing, how will the jury find out? Everyone deserves the best defence.

The Barristers’ Code of Conduct provides

303. A barrister:

(a) must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other…

(b) owes his primary duty as between the lay client and any other person to the lay client and must not permit any other person to limit his discretion as to how the interests of the lay client can best be served.

And

708(g)[a barrister] must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person.

If you possess even a small amount of skill and judgment, it’s not difficult to fulfil your duties under para. 303 without offending against 708(g). If you do, the Judge will stop you at once and you may have to answer a charge of serious professional misconduct and face possible disbarment. It’s often unnecessary to make the direct accusation to a witness that they are lying: ‘show don’t tell’ is usually a far better way to make the point – by bringing out inconsistencies, inaccuracies, contradictions where there should be none – the clues that show the account under scrutiny may not be all that it seems. But sometimes the direct approach is inescapable, and justified.

Prosecutors will on occasion chase defendants up hill and down dale in cross-examination; aggression, sarcasm, accusations of lying are normal, and usually unobjectionable, because the aim is to get to the truth. Or if the truth is irrecoverable, to show at least that what the Court is hearing is not the truth.

A woman takes her life after giving evidence in a grim trial of serious sexual offences; it is of course an appalling tragedy. We do not know what made her do it. If it leads to improvements in the treatment of complainants at all stages of the legal process, then some good may come from it. But lowering standards and restricting the defence in sex cases would be a disaster.