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.