WITNESS EXAMINATION WORKSHOP 2019 - FOLEY'S LIST FIRST YEAR WITNESS EXAMINATION VICTORIAN BAR WITNESS EXAMINATION
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WITNESS EXAMINATION WORKSHOP 2019 FOLEY’S LIST FIRST YEAR WITNESS EXAMINATION VICTORIAN BAR WITNESS EXAMINATION
YOUR CO-OPTS!
u FIRST YEAR WITNESS EXAMINATION -
Artemis Sfendourakis & Amy O’Bryan
firstyearwitness@mulss.com
u OPEN WITNESS EXAMINATION –
Clódagh Hussein & Vanessa Wickes
witnessexamination@mulss.comPRE-COMPETITION PREPARATION
u Team Expectations
u Meeting Time + Place for Prep
u Whiteboard/window/wall/Google Doc
u Irving Younger: 10 Commandments of Cross
Examination
u https://www.youtube.com/watch?
v=dBP2if0l-a8NIGHT 1:
RELEASE THE PROBLEM
u Emailed – this year 48 hours prior to
competition time.
u Print it out (if you can)
u Read (QUIETLY, taking notes! Re-read,
again and again and again and…)NIGHT 1:
WORKING THE PROBLEM
1. What do we need to PROVE/ESTABLISH?
u Case Theory
u Reasonable Doubt
2. What do we need to argue in CLOSING?
u 2 or 3 Arguments
u Neatly prove the legal issues
3. Arguments supported by trial testimony evidence or sub-arguments
u Next slideCASE
THEORY
…Maybe
ARGUMENT 1 ARGUMENT 2 Argument
3
Evidence A Evidence B Evidence C Evidence D Evidence
ENIGHT 1:
WORKING THE PROBLEM
u Finish only when you have structure for CLOSING
u You’ll have convinced yourself of the theory
u “Argue!”
u Be pedantic/logical/thoroughDAY 1:
START WRITING
u Write Closing
uPriority
uFrom Whiteboard structure
u Write Opening
u Prepare Cross ExaminationDAY 1:
CLOSING STRUCTURE
u Introduction –
u (Road Map)
u Argument/Issue 1
u Evidence from the trial/sub-argument
u Argument/Issue 2
u Evidence from the trial/sub-argument
u Case Theory/SummationDAY 1:
START WRITING
u Write Closing
uPriority!
u Write Opening
uDefence v Prosecution Openings
u Prepare Cross ExaminationDAY 1:
OPENING STRUCTURE
(PROSECUTION)
u Introduction + legal Charge
u Commonly Accepted Facts
u Key Issues in Trial
u Prosecution Allegations (case theory) VERY BRIEF
u Not evidence/argument
u Also, introduce the witnesses
u Closing Sentence
u “…I am confident that the testimony in this trial will confirm
those allegations, and establish that the defendant is guilty
beyond any reasonable doubt”
u Give it some narrative flairDAY 1:
OPENING STRUCTURE (DEFENCE)
u Confirm agreed facts
u Define key ‘Issues’
u ie indicate what you will argue at the end
u ieanticipate what issues provide the most
reasonable doubt
u SIT DOWN!DAY 1:
OPENING & CLOSING
u DOT POINTS -- NOT SPEECH
u Easier to speak to Judge
u Easy to remember when structured and
logical
u Add emphasis!DAY 1:
START WRITING
u Write Closing
uPriority!
u Write Opening
u Defence v Prosecution?
u Prepare Cross ExaminationDAY 1:
START CROSS EXAM PREP
u What evidence do you need from opposition witness to support
your CLOSING ARGUMENTS?
u Cross exam Qs aimed at getting that info
u Only ask leading questions!
u NEVER ask one question too many!
u ‘Close the Gates’ + Establish your arguments for closing
u Be brief!
u Have a structure/signpost
u Have paragraph references from witness’ statement!
u Watch Irving Younger!CLOSING THE GATES
“Preliminary Matters”
u When you made this witness statement you were doing your best to tell the truth?
u You were also trying to tell the whole truth?
u You did your best to record every important thing that you saw or heard in relation to these
events?
u You didn't deliberately leave anything important out?
u I presume you’ve read through the statement recently and it’s still true and accurate?
Example Cross-Examination Q’s
u You claim that when you met Ms Watson she said “you better pass me”, correct? (para 5)
u You thought that was aggressive, didn’t you? (para 5)
u And you say she smelled of cigarettes? (para 6)
u But you didn’t ask her about why she smelled of cigarettes, did you?
u And you concluded she was “probably a smoker”, correct? (para 6)
u Shortly after this introduction you began the induction, correct?NIGHT 2:
REVIEW PROGRESS
u Meet again with your partner
u Review Opening and Closing
u Get feedback
u Review and finish Cross Examination Questions
u Have partner push back
u Practice controlNIGHT 2:
EXAMINATION IN CHIEF
u Seems easy until it takes hours (sometimes)!
u HARD to convert written statement into questions…
u No leading Qs
u No ‘so… what happened next?’ Qs
u Story and conversation
u Have a structure/signpost
u Write out Qs and As
u Each partner ‘learn’ your scriptu What were you doing at 11am on that Wednesday?
u Serving an elderly male customer
u Could you describe that customer’s transaction for the Court?
u Wanted foreign currency for a trip; taking quite a bit of time; making me wait
u How long did that transaction take?
u Can’t remember exactly, but it was taking ‘some time’
u What did you do while you were waiting?
u I looked to see who were the next customers
u And can you describe what you saw?
u Wasn’t paying that much attention but I noticed the next man in line looked vaguely familiar.
u Can you describe for the Court what he looked like?
u mid 30s… quite handsome… clean shaven… tanned… smart, dark clothing… well groomed
u What happened with the elderly man’s transaction?
u Concluded — stepped to the side from the counter — putting cash in drawDAY 2:
FINAL PREP
u Familiarise!
u Anticipate
opposition
uObjections?
uPossible Cross-Exam questions?NIGHT 3:
THE TRIAL
u Business Attire
u Cost…
u Organise materials
u Water
u Performance
u To the judge! (they’re either nervous or generous)
u Listen when not speaking
u To object
u To exploit something advantageousOBJECTIONS 1. Leading Qs 2. Opinion 3. Hearsay 4. Relevance 5. Prejudicial
1. LEADING QUESTIONS
u Qs that suggest or imply an answer
u Qs that refer to/rely on evidence not yet introduced in
trial
u BUT:
u Examination in Chief v. Cross Examination
u Reasonableness… “did the light turn green?”
u Don’t let your opponent ask a succession of leading
Qs2. OPINION
u Witness cannot testify to inferences made from their
direct observations
u “He was drunk” v. “He was behaving like X, Y & Z”
u Up to Court to draw inferences
u BUT:
u Lay Opinions
u Specialised Knowledge3. HEARSAY
u “X told me that she saw A kill B”
u What does that establish?
u BUT:
u E.g. Julian Burnside4. RELEVANCE
u Evidence relevant if it could rationally affect Court’s
assessment of the likelihood of a fact
u Can be very useful
u BUT:
u Be reasonable…5. PREJUDICE
u Probative Value < Prejudicial Effect
u Evidence more likely to taint the Court’s
rational assessment of the fact’s validity,
than aid that assessment
u Can be very usefulOBJECTIONS 1. Leading Qs 2. Opinion 3. Hearsay 4. Relevance 5. Prejudicial u These take experience in Court to use properly u Be wary of seeming argumentative and opportunistic u Impressions matter
NIGHT 3:
THE PUB
u Go get a drink
u Loser pays
u Can get intense, so decompressFINAL TIPS
1. Preparation
u “War is won before the battle is fought”
u Outwork your opponent and usually you’ll win
2. ‘Argue’ with your partner
3. (Extensive) dot point Opening and Closing
4. Thoroughly READ the Judge’s SCORESHEET & COMP
GUIDEBOOK
5. REMEMBER: Competition NOT a Trial
6. Use the Exam in Chief and Cross Exam to get what you need
for your arguments in ClosingYou can also read
