Solicitors' Higher Rights of Audience Qualification Advocacy Skills and Courtroom Technique Syllabus

If your own witness gives evidence inconsistent with their statement but is not hostile, what may you do?

You may not cross-examine or impeach them; you can only ask further non-leading questions to give them the chance to clarify or correct, and may call other evidence to prove the true facts. You cannot attack your own witness's credit unless they are declared hostile.

State the twin objectives of cross-examination.

(1) To elicit favourable evidence from the opponent's witness that supports your case (constructive cross-examination); and (2) to weaken or destroy the credibility, reliability or weight of evidence damaging to your case (destructive cross-examination).

Why are closed, leading questions the staple of cross-examination?

Because they let the advocate control the witness, limit answers to "yes" or "no", prevent the witness from explaining or repeating damaging evidence, and allow counsel to build a controlled, propositional case one fact at a time.

What is the rule in Browne v Dunn (the rule on "putting your case")?

If you intend to invite the tribunal to disbelieve a witness or to make a contrary finding, you must put that contradictory case to the witness in cross-examination, giving them a fair opportunity to respond. Failure to put the case may mean you are not permitted to argue the point or that the witness's account stands unchallenged.

What is the practical consequence of failing to "put your case" to a witness?

The tribunal may treat the unchallenged evidence as accepted, the opponent may object that the point was not put, and the advocate may be precluded from making the contrary submission or may have to recall the witness. It also damages the advocate's credibility for unfairness.

Give three core techniques for maintaining control of a difficult witness in cross-examination.

(1) Ask short, single-fact, leading questions; (2) insist on an answer to the question asked and politely but firmly repeat it if evaded; and (3) avoid the open "why" question and never ask one question too many, stopping once the favourable answer is obtained.

What is the maxim "never ask a question to which you do not know the answer", and what is its limit?

In cross-examination you should generally only ask questions whose answers you can predict from the papers or that you can control, to avoid eliciting damaging material. The limit: it is a guideline, not absolute; sometimes a "safe" question is one where any answer helps, and rigid adherence can prevent legitimate probing.

What is meant by "one question too many" in cross-examination?

Asking the final, explanatory question (often "why?" or "how do you explain that?") after you have already obtained the favourable factual admissions, which gives the witness the chance to repair the damage. The advice is to stop at the helpful answer and reserve the conclusion for closing speech.

List three statutory or common-law restrictions on the content of cross-examination.

(1) Questions must be relevant and not merely vexatious, oppressive or scandalous; (2) restrictions on cross-examining complainants about sexual history in sexual offence cases (Youth Justice and Criminal Evidence Act 1999 s.41); and (3) the prohibition on an accused personally cross-examining certain witnesses (e.g. complainants/child witnesses, YJCEA 1999 ss.34-35).

What is the rule on the finality of answers to collateral questions?

Answers given by a witness on collateral matters (those going only to credit, not to a fact in issue) are final: the cross-examiner must accept the answer and may not call evidence to contradict it, save for recognised exceptions (e.g. previous convictions, bias, reputation for untruthfulness, medical evidence of unreliability).

Name the recognised exceptions to the finality-of-collateral-answers rule.

(1) Previous inconsistent statements; (2) bias or partiality of the witness; (3) previous convictions relevant to credit; (4) evidence of the witness's general reputation for untruthfulness; and (5) medical/psychiatric evidence affecting reliability.

When putting a previous inconsistent statement to a witness, what procedural steps apply (Criminal Procedure Act 1865 ss.4-5)?

The witness must be reminded of the circumstances of the earlier statement and asked whether they made it; if they deny or do not admit it, the statement may then be proved. For statements in writing, the relevant parts may be put to the witness and, before contradiction, their attention must be drawn to those parts.

State the permitted scope of re-examination.

Re-examination is confined to matters arising out of cross-examination. Its purpose is to clarify, explain or qualify answers given in cross-examination (e.g. to repair damage or put answers in context), not to introduce wholly new evidence. Leading questions are not allowed.

May new matters be raised in re-examination, and what is the exception?

Generally no. New matters may only be introduced with the leave of the court. Without leave, re-examination must be limited to issues that emerged during cross-examination.

Why are leading questions not permitted in re-examination?

Because re-examination is examination of your own witness; as in examination-in-chief, the evidence must come from the witness rather than being suggested by counsel, so the answers retain credibility and weight.

What are the essential components of an effective opening speech?

An introduction of the parties and the nature of the case; a clear statement of the issues the tribunal must decide; a concise, persuasive outline of the facts (the theory/theme); a summary of the evidence to be called; and a statement of the outcome sought. It orients the tribunal without arguing the evidence in detail.

What is the cardinal rule about the content of a prosecution/claimant opening speech regarding the evidence?

The advocate should outline what the evidence is expected to show but must not argue it, comment on or assert facts as proved before they are in evidence, nor refer to inadmissible material. The opening states the case; persuasion on the evidence is reserved for closing.

In a criminal Crown Court trial, who has the right to make an opening speech and a closing speech?

The prosecution opens the case. The defence may make a closing speech; the prosecution has a closing speech as well (CJA 2003 / Criminal Procedure Rules). Where the defendant is unrepresented or calls no evidence other than themselves, the order and entitlement to speeches are governed by the rules, but the defence generally has the last word to the jury.

What is the standard structure and aim of a closing speech?

To draw together the evidence actually given and argue why, applying the burden and standard of proof, the tribunal should find in your favour. Structure: restate the theme; remind the tribunal of the issues; marshal the favourable evidence element by element; confront and explain away adverse evidence; and end with the verdict/finding sought.

How does a closing speech differ fundamentally from an opening speech?

An opening previews and orients without argument, dealing in what the evidence "will show"; a closing is overtly persuasive and argumentative, dealing in what the evidence "has shown", drawing inferences, attacking credibility, applying the law to proven facts and urging a specific outcome.

What is a submission of "no case to answer" in a criminal trial, and at what stage is it made?

A defence submission, made at the close of the prosecution case, that the evidence is insufficient for a properly directed tribunal to convict, so the case should not proceed. If successful, the judge directs an acquittal (or, in the magistrates' court, dismisses the charge).

State the test in R v Galbraith for a submission of no case to answer.

There is no case to answer where (1) there is no evidence that the defendant committed the offence; or (2) the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it. Where the evidence's strength depends on the witnesses' reliability and a reasonable jury could convict, the case must be left to the jury.

What is the equivalent of a no-case submission in civil litigation, and what is the risk for the defendant?

A submission of no case to answer at the close of the claimant's evidence. The court will usually put the defendant to an election: if the defendant submits no case, they may be required to elect not to call evidence, because the judge must consider whether the claimant has established a case on the balance of probabilities, not merely a prima facie case.

What are the building blocks of a well-constructed legal submission?

(1) State the proposition of law clearly; (2) support it with the highest relevant authority (statute then binding case law); (3) apply the law to the established facts; (4) deal with contrary authority and distinguish it; and (5) state the relief or ruling sought. Structure it as issue, rule, application, conclusion.

What is the "IRAC" structure for legal argument?

Issue, Rule, Application, Conclusion: identify the legal issue; state the governing rule/authority; apply the rule to the facts of the case; and conclude on how the issue should be resolved. It produces a logical, easily followed submission.

What is the proper practice for citation of authority before a court?

Cite only authorities necessary to the argument, prefer the most authoritative report, give the neutral citation and law report reference, identify the precise passage (paragraph/page) relied on, state the proposition it supports, and provide the court and opponent with copies in advance per the practice directions on citation.

Under the Practice Direction on citation, what must an advocate state when citing a case, and what should be avoided?

The advocate must state the proposition of law the authority demonstrates and the parts of the judgment that support it, and must not cite authorities that merely illustrate a proposition without adding to it. Citation of multiple authorities for the same uncontroversial point should be avoided; unreported cases require justification.

Distinguish ratio decidendi from obiter dicta when citing authority.

The ratio decidendi is the legal reasoning necessary to the decision and is binding under stare decisis; obiter dicta are observations not essential to the decision and are only persuasive. An advocate must be candid about which part of a judgment is relied on, as obiter carries less weight.

How should an advocate respond to judicial intervention or questioning from the bench?

Stop speaking and listen, answer the question directly and candidly, address the judge's concern before returning to the planned argument, concede points that cannot be sustained, and never appear evasive or argue over the judge. Treat interventions as a guide to what is troubling the court.

What is the advocate's duty regarding misstatement of law and material facts to the court?

An advocate must not knowingly or recklessly mislead the court. This includes a duty to draw the court's attention to relevant adverse legal authority and to procedural irregularities, not to advance a contention known to be false, and to correct any misleading statement as soon as practicable. The duty to the court overrides the duty to the client.

What is "ethical persuasion", and what is the duty to disclose adverse authority?

Ethical persuasion is influencing the tribunal through accurate, fair and properly supported argument rather than misstatement, suppression or distortion. An advocate must cite binding authority directly against their client's contention even if the opponent has missed it, distinguishing or arguing around it openly, because the overriding duty is to the proper administration of justice.