Statements or Questions

English Barrister Simon Myerson commented on my recent post about Racehorse Haynes’s cross-examination of the government’s snitch witness in a murder case.

Simon has a very interesting blog: Pupillage And How To Get It. I’m not entirely clear on the concept of pupillage; it appears that it’s something like an apprenticeship — in order to become a barrister you must first get an undergraduate degree (and a one-year Graduate Diploma in Law if the undergraduate degree was not in law), then take a one-year Bar Vocational Course (BVC), then have pupillage in law chambers for two six-month terms. (Contrast this with the American system of dumping lawyers with no practical training or experience on an unsuspecting public after three years of academic law training.)

Not everything is different in the commonwealth, though — here’s Simon’s description of a “bog standard” criminal practice (from his post, What Type of Law Should I do?):

This is one of the places where law interacts with the average person. You can exercise your commitment to help the downtrodden – and prosecute (most burglaries are committed within 1/2 mile of the burglar’s home). Or you can cheerfully run the same defence that worked for your client’s uncle the last time – usually with the same alibi witnesses. You will find out more about sex with children, animals and the dead than you ever wanted to know. You will learn the best way to steal a car, fire a house, deceive an elderly person and kick someone on the ground. If you learn lots about all these things, someone may ask you to become a Judge.

Advantages. All your friends will know what you do because they will have watched Rumpole. Clients are normally grateful – win, lose or draw. Life is varied. This is what ‘Barristering’ is all about. National Press might know your name. Other lawyers might actually be interested in what you do. You also get to do the jury speech – and the jury might actually understand your case. Criminal Bar tends to be friendly and supportive. If so inclined, this is an area where you can parade your conscience by only defending (except for Rapists obviously) which can help you get work from like minded solicitors. Your solicitor is normally absent and sends a clerk who will be nice about you if you buy them lunch. Given the complexity of sentencing you can regularly double your money in the Court of Appeal.

Disadvantages. Although things may be a little better for the junior bar, paywise your plumber is still laughing at you. Other Barristers think that what you do isn’t really law. You have to spend time in prison, which is enough to depress anyone. Occasionally you have to defend someone innocent and will lose sleep. If your career doesn’t take off the CPS will seem an attractive option. There are actually only 5 mitigations and only 4 defences so it can be grindingly dull to be doing the same thing 10 years on. When you lose the plot you will be lucky if the solicitor’s clerk knows what day it is. The Government passes about 3 badly drafted major acts per Parliament – all of which are knee jerk responses to what the Daily Mail says – and you have to learn about them.

Simon also has a list of other British lawyers’ blogs; I’ve added them to my feed reader, and will report on what I find.

Anyway, on to the intended point of this post . . .

In his comment, Simon noted that two of the “questions” Richard asked were “statements.” I’m not sure of the importance of this distinction; Richard’s “statements” clearly required (and elicited) answers; one of them was even voiced with a rising intonation (indicated in my transcription with a question mark). I wonder whether there’s any significant difference between a sentence that elicits an answer because it is phrased as a question, a sentence that elicits an answer because it is intoned as a question, and a sentence that elicits an answer because the circumstances demand an answer.

This seems like a good time to introduce another track from Terry MacCarthy’s cross-examination CDs. Here’s Terry talking about the use of statements in cross-examination:

(Download a form to order the seven-CD set.)

0 responses to “Statements or Questions”

  1. Hey Mark – many thanks! And you are dead right about pupillage. It is not terribly PC to call it an apprenticship (for reasons I don’t wholly understand) but that is what it is.

    I agree that statements have a real use in cross-examination. I was simply pointing out that, until you can really trust your instincts I would stick to asking questions to which I know the answer and making statements that can’t be challenged. Of course, once your instincts are trustworthy go out and take a punt now and then – it is one of the things that distinguishes the deiocre advocate from the good one.

    I have cross-referred your site. I think that cross-examination is a cross-jurisdictional issue. Plus which, you lot have done far more research on it than we have.

    All the best.

  2. You may have to be Terry MacCarthy to get away with starting off with a “statement question”, but I wonder if it would work to start off with an “isn’t that true?” tagline for the first couple questions and then move into “statement mode.” I’ve tested this and it seems that the once the prosecutor is caught up in the cross, they’re less likely to object as it’s obvious that a question is being asked.

  3. Simon, thanks.

    David, try this: put a two-second delay between your question (“You’re the complainant’s brother”) and your tagline (“right?”). If the witness doesn’t answer the question in the two-second period, you can make it abundantly clear to him that it’s a question.

    Bear in mind that the witness has been on the stand answering questions for some time before you get to him. It doesn’t take much to train him to treat your statements as questions.

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