Law leading questions9/11/2023 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.īerman says that while asking leading questions is against the rules, it doesn’t always stop lawyers from asking them. 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.Įven if a lawyer employs great communication skills in questioning the witness, this amounts to little if the judge or jurors aren’t listening.Ī 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.īerman suggests a legal professional can introduce a question with phrases like, “Tell her Honour”, or “Tell the jurors”. Just like the eye contact issue, this is usually due to a legal professional trying to avoid silence between answers and questions. The final barrier is the failure of lawyers to listen to a witness’ 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. And this issue is caused as lawyers are trying to avoid silences at the end of answers. He posits that without eye contact a witness can feel unsure of their delivery. Berman observes that lawyers often stare at their notes when a witness is speaking. The second is not looking at the person spoken to. 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”. So, rather than following the strict chronological order of a proof of evidence, an advocate should develop a strategy prior to appearing in court.įourth Commandment: Effective CommunicationĪccording to Berman, there are three main communication barriers affecting the ability of lawyers to conduct evidence-in-chief in a persuasive manner. 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. Third Commandment: Pre-Plan Organisation and StructureĪ proof of evidence is a document usually produced with the aid of a solicitor that summarises the witness’ version of events in writing.īerman 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 questioning lawyer started with focus on the actual crime, rather than developing the background relationship story beforehand.īerman stresses that “a good start”, such as this, should be pre-planned. 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”.īerman 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. In establishing a persuasive evidence-in-chief, a lawyer needs to grab the court’s attention from the onset by making it interesting. The rest of the commandments, Berman explains, are all about how to perform this persuasive evidence-in-chief. And if evidence-in-chief has established a “favourable preliminary view”, it’s then much harder to undermine this in cross-examination. Here are the ten golden rules the former judge recommends:īerman stresses that persuasion is key to establishing evidence-in-chief, as most jurors have formed an opinion by the end of the defence opening. 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.īerman 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”. And they can’t rely on a witness’ opinion. Questions must be relevant to proceedings They must not involve hearsay. Leading questions are prohibited, instead open-ended questions should be asked. There are limitations to the type of questions a lawyer can ask during evidence-in-chief. 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. Evidence-in-chief involves a witness being questioned in court by the party that called them to appear.
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