27/05/2019
A COMPILATION OF THE ASK MENTORSHIP WHATSAPP Akpu Peter Ndubuisi 500L Ebonyi State University Law Faculty(EBSU)
TOPIC: THE CRAFT OF CROSS EXAMINATION
GUEST SPEAKER: MR FOLARIN ALUKO ESQ
DATE: 26TH DAY OF MAY 2019
A BRIEF PROFILE OF OUR GUEST SPEAKER
MR. FOLARIN ALUKO is a Solicitor and Advocate of the Supreme Court of Nigeria. He is an alumnus of King’s College Lagos and the University of Lagos.
Folarin has considerable experience in Civil Litigation, Legal Drafting, Corporate and Commercial Law, Information Technology Law and Intellectual Property Law.
Mr. Aluko is a Partner in the law firm of Trumann Rockwood Solicitors. He is the current Chairman of the Nigerian Bar Association, Abuja Branch. He is also a Director of the Intellectual Property Institute Nigeria, and the Chairman Board of Trustees of the Intellectual Property Lawyers Association. He is a member of other professional Bodies including:
• Institute of Debt Recovery Professionals Nigeria
• Nigerian Institute of Management (Chartered)
• Ethics and Corporate Compliance Institute (Nigeria)
• Chartered Institute of Arbitrators (UK)
In addition to his legal training, Folarin additional certifications in Computer Engineering, Electronic Evidence Management, Data Forensics, IT and Digital Communications.
He Starts: Good evening everyone and thank you very much for having me.
Folarin Aluko: I must say that I was quite impressed when I learned about this group. Knowledge sharing is essential to growth and while I'm here to share, Im also open to learn.
Folarin Aluko: A lot has been said about the art of cross examination and I really do not intend to reinvent the wheel. I am pleased to share some practical thoughts and insights on the craft/art of cross examination in and out of court.
Folarin Aluko: WHAT IS EXAMINATION
Introduction
Generally speaking Examination is the means by which oral evidence is taken in our judicial system. The legal basis is found in Section 214 of the Evidence Act which tells us the different types of examination:
a. Examination-in-Chief
b. Cross-Examination
c. Re- Examination
Examination in chief and re-examination are the examination of a witness by the party who called the witness. Cross-examination is the examination by any other party to the action.
To put this process in context, historically, the right to cross examine is borne out the fundamental right to confront and challenge adverse testimony. It flows from our concept of natural justice- a fair trial requires me to face my accusers and challenge them squarely.
Folarin Aluko: A trial is like a web of stories. The Plaintiff tells her side, the Defendant tells his side and the court determines who to believe and then tells us the true story. Not all stories are believable- we all have that friend who tells us fantastic stories of great and magnificent exploits. Some stories add up and some don't. This is why each story must be tested by the fire of adverse scrutiny.
Cross examination is that part of the trial where the other party's lawyer(s) puts questions (in examination format) to challenge or clarify the story told by a witness.
Crossex serves many purposes- to test the veracity of the witness, to shake his/her credibility, to determine his position in life and so on.
Folarin Aluko: When preparing for cross, I try to be guided by the following considerations:
1. What parts of my story can this witness corroborate?
2. What parts of his story weaken mine?
3. What aspects of his story are incredible?
4. Where are the fallacies if any, in his story?
5. What is his motivation for coming to court?
Folarin Aluko: It is essential for a trial lawyer to have a firm grasp of logic and how to identify logical fallacies. Critical thinking is the foundation for good cross examination. Knowing logical fallacies also allows you to use them and counter them when used against you.
For example, You may choose to attack a premise of the witnesses' story
For example,
32. Q: You told this Court that when you moved into the property it was uncompleted
A: Yes
33. Q: I put it to you Sir that it is also a lie
A: It can’t be a lie
34. Q: So, you are telling this court under oath that the defendant used an uncompleted building to secure its registration with INEC?
A: No I did not say that
Folarin Aluko: During Exam in Chief, the court hears the voice of the witness without the aid or assistance of Counsel. This is the rule against leading questions. A leading question simply suggest the answer to the witness. It goes without saying that the Evidence Act frowns upon the use of leading questions during Examination in chief and reex.
During cross, the lawyer is expected to put words in the mouth of the witness. Cross examination does not have to be verbal kungfu between the lawyer and a witness. You can elicit the information you need without necessarily being hostile, although sometimes a slightly hostile attitude may enhance your questions, especially when dealing with a difficult witness.
Here are a few tips and ideas for an effective cross.
Folarin Aluko: 1. Preparation and Due Diligence
This point cannot be overemphasized especially in the high court where pleadings are exchanged ahead. I always make it a point of duty to research each witness. This means going through their social media accounts, linkedin, work information, social proclivities and preferences. For example, in a trial I conducted recently, a witness was called to make some claims about my client's attitude at work. The witness was an employee of a company where my client had worked as MD. Browsing through the witnesses facebook account, I found a link to his old boys association website where we found records that showed that he was in SS1 when my Client resigned from the company.
In another matter, a witness claimed he was company secretary of the Plaintiff company, a PLC. NSE records filed by the company showed that he was secretary to a subsidiary and not the Plaintiff company. We quickly applied for a CTC(Certified True Copy of the CAC 2.1 Form showing particulars of the company secretary to discredit his testimony.
The importance of trial preparation cannot be overemphasized.
In a case involving a car that I handled at the magistrate court some time ago, I took out time to study the car model, make, year of manufacture, etc. These facts came in handy during cross. I wont bore you with the details. Sometimes you may need to consider hiring a private investigator...
Folarin Aluko: 2. Construct your questions deliberately
During Cross you control the witness by framing your questions properly and precisely. Irving Younger calls this asking one fact-per-question. Cross-examination questions should be simple and not complex:
An example of a complex question and a typical answer:
Q: Did you just arrive or are you leaving?
A: Yes
The proper framing should be
Q: Did you just arrive?
A: No
Q: Are you leaving?
A: Yes
On this point we should address the issue of using leading questions. Frame your questions in a way that require the witness to either agree or disagree with you. Some lawyers advise their witnesses to be vociferous during cross. This is bad advice. A witness who doesnt stick to yes or no will talk himself into trouble sooner or later.
For example, I recently cross examined a lawyer who refused to answer my questions in the affirmative or negative, he would always launch into an elaborate explanation. I caught my break when he mentioned that he had been seeing someone everyday for the past 2 years- when another witness had given evidence that this person was not in the country for a year.
We like to preface our questions with:
"You would agree with me that..." or
"is it correct that..."
"I put it to you that ..."
32. Q: You told this Court that when you moved into the property it was uncompleted
A: Yes
33. Q: I put it to you Sir that it is also a lie
A: It can’t be a lie
34. Q: So, you are telling this court under oath that the defendant used an uncompleted building to secure its registration with INEC?
A: No I did not say that
35: I put it to you that the house was fully built when you took possession
A: (quietly) Yes
Q: Please repeat your answer loudly for the court to hear
Folarin Aluko: It is always good practice to prepare your questions beforehand, especially when processes have been front-loaded.
Folarin Aluko: NB: The numbered questions are from a transcript of an actual case I handled personally.
Folarin Aluko: 3. Listen and Observe Carefully
It is easy to get carried away during cross. There are so many things going on at the same time and we may want to rush through our list of questions but it is important to listen carefully to what the witness is saying and doing.
On the importance of observation, a few years ago, I cross examined a witness and noticed that the he would glance down before answering questions. Upon a closer examination, it was discovered that he was uploading or downloading from notes he had written on sheets of paper and on his hands. When the judge asked him to stretch his hands, he made a fist and tried to clean his hands- too late.
On the importance of listening, I remember cross examining a Bailiff who had served a notice to quit on my client. I drew his attention to the signature on the Notice and asked whose signature it was. The Bailiff answered "it is the Registrar's signature". Apparently, the Registrar had issued the two statutory notices to my client. The case was struck out.
Folarin Aluko: 4. Sequence
Your questions should be logically organized. If you are attacking an issue, eg service of notices in a recovery of premises case, arrange all your questions on that issue together. It helps the judge put things in perspective.
Folarin Aluko: Finally, there's so much to say but I don't want to overstay my welcome. You dont have to crossexamine every witness. Your decision of whether to crossexamine a witness should emanate from your theory of the case and your assessment of the impact of that witnesses' testimony on the balance of probabilities.
Folarin Aluko: I hope these tips will come in handy. Thank you for having me, it has been an interesting evening. I'll hand over to Kene now.
QUESTION & ANSWER SESSION
Question 1: By Barr. Agwu Kennechukwu
Ken Agwu: I personally will start by asking. Sir, can you shed more light on the concept of "Putting it to the witness" I see most wrong uses of it.
ANSWER
Folarin Aluko: That statement is actually very archaic english. It was used to draw the attention of a witness to a part of his testimony believed to be deliberately untrue. You 'put that proposition or conclusion to' the witness
QUESTION 2:
Ruby: I have a question sir, who is a hostile witness?
Folarin Aluko: A hostile witness is a witness who gives testimony against the interest of the party who called him can be declared to be hostile and subjected to cross-examination.
QUESTION 3, BY: CHIKERE CHIDERA 500L Ebonyi State University Law Faculty
C E Chikere: When you put a statement to a witness during cross examination and the witness negates, for instance, I've been in a proceeding where a law during cross examination said " I put it to you that you're lying" and the witness replied " I remove it from myself "
My question is, what is the implication of putting a statement to a witness? And what happens when he rejects the imputation?
Folarin Aluko:Lol. 'I remove it from myself' or 'I reject it in Jesus' name'. The statement is from olden times. If the witness refutes the imputation, the lawyer can draw the court's attention to the issue at closing and use as the basis to discredit the testimony. Naturally, the point in question has to relate to a substantive issue before the court.
It could also be the basis for a perjury charge against the witness.
MORE CLARIFICATIONS TO HIS C.E CHIKERE'S QUESTION.
C E Chikere: Ok Sir, that means making an imputation to a witness without more I.e drawing the attention of the court at the conclusion cannot amount to discrediting a witness testimony.
Folarin Aluko: You're drawing the court's attention to the discrepancy between the evidence and the statement made by the witness. If you put something to a witness, there's a presumption that you have evidence that the witness is lying. For example, if the evidence is documentary, depending on the circumstances of the case, you can tender it through that witness.
(c) Akpu Peter Ndubuisi 26/5/2019.
TO GOD BE THE GLORY
