COMPARATIVE TRIAL ADVOCACY
Robert R. Strang

Trial technique is one of the more idiosyncratic aspects of the law,where wide variations in legal
rules, cultural norms, and historical traditions have led to divergent courtroom practices. There arefundamental differences in criminal procedures of many legal systems ― professional versus lay factfinders,oral versus written testimony,and judicial versus party questioning of witnesses. Practitioners
in different countries often appear to speak a different legal language. At first glance, comparative
trial advocacywould seem to offer little opportunityfor meaningful cross border sharing ofexperience,
except in narrow circumstances where countries come from a similar legal tradition.
Nevertheless, recent experience suggests there are some sufficiently universal or near universal
issues in advocacy such that trial skills can be shared across jurisdictions. Trial advocacy programs
conducted in various countries and across various legal traditions over the past ten years indicate that
there is a basis for productive comparative cooperation, even if such programs should be tailored toreflect local procedures and sensibilities.
There is also a convergence in the methods of teaching trial advocacy. The learn-by-doing,
repetition-based experiential model for trial advocacy skills transfer is seeing wider adoption. This
technique,pioneered by the U.S.National Institute for Trial Advocacy (NITA),relies less on lectures
bydistinguished legal academics,and instead focuses more on small group exercises where participants
test their own skills before receiving both skilled practitioner and peer critique to sharpen core trial
skill competencies, followed by a moot court experience.
This Article will focus on two trial skills for prosecutors that can be fruitful areas for sharing ofbest practices:examination of government witnesses (direct examination)and examination of defense
witnesses including the defendant (cross examination). These topics are often individually the subjectof multiple chapters in books on trial technique, or even the subject of an entire book by itself.
Therefore, this Article will necessarily only discuss some of the broader tactics and considerations.
Persuasive direct examinations begin with witness preparation. In some jurisdictions,prosecutors
do not meet with witnesses in advance of trial out of concern that they could be accused of impropercoaching. In reality, preparation insures that witnesses provide coherent, streamlined testimony
focused on the key issues of trial. The benefits of good witness preparation outweigh the potential
downside of giving a defense lawyer the opportunity to make the argument that there was collusion.
Proper witness preparation requires having both the prosecutor and the investigator present during
meetings with the witness. This ensures that the prosecutor has the benefit of the investigatorʼ
sknowledge of the case and ensures that if there is any allegation of fabrication or prosecutorial
misconduct, the prosecutor has a witness (the investigator) to rebut that claim without having tobecome a witness in their own proceeding. Having the investigator participate in the trial preparation
also helps build a strong team model of police/prosecutor cooperation that should begin at the outsetof the investigation and continue through the trial itself where the investigator can sit with theprosecutor during the testimony.

Resident Legal Advisor to the Philippines,U.S.Department of Justiceʼs Office of Overseas Prosecutorial Development,
Assistance and Training (OPDAT). The Author has organized or participated in trial advocacy programs in Hungary,
Russia, Indonesia, Pakistan, and the Philippines, involving participants from twelve countries.

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Through witness preparation,the witness understands the process of being a witness,what will be
involved in direct and cross examination, and how to be comfortable in the courtroom setting. The
prosecutor better understands the strengths and limitations of the witness,how to phrase questions so
the witness understands what is being asked, and often discover additional relevant information, notnecessarily reflected in the investigatorʼ
s interview notes, that the witness has to offer. Standard
procedures include simulated questioning,review of prior statements,and use of exhibits. A properly
prepared witness will know what to wear in court,where to sit,what to do if there are objections,what
to do if they do not remember, how to respect both parties in the proceeding, and how to conduct
themselves generally in the courtroom. Some general instructions all government witnesses should
receive from the prosecutor could include:
TELL THE TRUTH ALWAYS.
Speak in your own words as you answer the questions.
Look directly at the person asking you questions―prosecutor, defense attorney, and/or the
court.
Take time and think before answering questions. Donʼt feel rushed.
Use the same effort in answering questions from the court and all lawyers.
Be positive in answers.
If you donʼt know an answer, say you donʼt know.
Ask for the question to be repeated or clarified if you are not sure you understand it.
Be comfortable with your limitations-every witness knows only parts of the case.
TELL THE TRUTH ALWAYS.
Prosecutors need to keep in mind two significant psychological observations: listenersʼattention
spans are approximately 20-30 minutes,listeners understand better when provided with both visual andoral information together, and listeners recall the information they hear first and last (“primacy andrecency”)more accurately than information conveyed in the middle. The witness will be judged not
only on the substance of their testimony, but also on their background and their demeanor. To keep
the listenersʼattention, unnecessary detail should not be included. The trier of fact will be making
judgments throughout the trial and filtering the evidence to fit those judgments. Therefore losing theirattention with unnecessary details or repetitive witnesses will undermine the case from the outset
regardless of how strong later witness testimony proves to be.
An effective direct examination itself can be divided into several stages: personal background;scene setting;transition to get the trier of factʼs attention;action description;exhibits to highlight andrepeat;acknowledgment of any bias or weakness;and a strong ending. During direct examination,theprosecutor wants to make the witness the star, yet still control them. Questions should use simple
words that convey an image, generally beginning with who, what, where, when, how, and please
explain. Use of transitional sentences between new areas of testimony is key to keep the listenerʼsattention. Prosecutors must avoid interjecting their own views and also avoid personal bad or
distracting habits. It is critical to listen to the witnessʼanswers ― the prosecutor may have heard theanswers a dozen times during witness preparation, but under the stress of trial it may come out
differently. It can be helpful to repeat a witnessʼown words to a previous answer in a follow up
question,although this should be done only on important answers and in moderation to avoid invoking
the judgeʼ
s ire. Pace is also extremely important ― it is necessary to slow down for key areas by using
a series of narrow questions and verbal and nonverbal cues. A prosecutor must maintain interest in
their own witness no matter how familiar the prosecutor is with their testimony or risk inadvertently
signaling to the trier of fact that the witness can be safely ignored or is unimportant.

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Physical exhibits are an important way to both corroborate a witnessʼtestimony and give them an
opportunity to repeat key portions of the testimony. A witness should have multiple opportunities tomake their point. For example,first,they can describe how a gun was pointed,second,they can thenidentify it in a search scene phone, and then third, they can show how the gun was pointed using the
gun itself.Using the same exhibits with different witnesses demonstrates to the court how the witnesses
reinforce each other. Demonstrative exhibits, such as summary charts, timeline charts, diagrams ormodels, may not actually be evidence, but they can also substantially aid the fact finder. Complex
information or information from different witnesses who may have testified days or weeks apart canbe combined in a single demonstrative exhibit. Witnesses will be more confident with demonstrative
aids to assist them, particularly if they have practiced with the demonstrative aids during witness
preparation. In cases where there is little physical testimony, demonstrative exhibits can give somemuch needed visuals to sharpen the case and bring the facts to life.
While all prosecutors have experience with direct examination of their witnesses,it is still possible
to apply new techniques to streamline the governmentʼ
s proof to make it both more efficient and more
effective.
By contrast, the cross examination of defense witnesses, particularly the defendant, provides asignificant challenge to prosecutors worldwide. Defendants who breakdown on the stand and admit
their own guilt make for good movies but that rarely happen in real courtrooms. The defendant is notbound by the truth;they will testify in any manner they reasonably hope will allow them to convince
the fact finder of their innocence. In addition, prosecutors generally do not receive a great deal of
specific information regarding the defendantsʼtestimony in advance ― the prosecutor may possess
some reports of post arrest statements by the defendant that can be used for cross examination, but
generally prosecutors do not receive significant helpful pretrial discovery regarding a defendantʼstestimony and are left guessing what that testimony may be based on the defense attorneyʼs oral or
written submissions to the court. In addition, most criminal trials have a predominance of witnesses
for the prosecutions, rather than witnesses for the defendant, so prosecutors generally have lesspractical experience in cross examining defense witnesses than their defense counterparts. Therefore,
following the direct testimonyofthe defendant or a defense witness,the prosecutor mayhave little time
to develop an effective cross examination on the spot.
An effective method to address these structural disadvantages to the prosecutor is to use aconcession-based cross examination approach. In a concession-based approach, the prosecutor prepares in advance a series of questions to use during cross examination that the witness will have toconcede or the witness will look like a liar or a fool to the fact finder. In other words,the prosecutor
can push through the theory of his case and support the testimony of prior government witnesses
through careful questioning of the defendant or defense witness before the witness becomes more
hostile.
M aintaining control of the defense witness through asking narrow, fact-based questions that thewitness must agree with is one key to successful concession-based questioning. This is not the time toseek opinions from the defense witness,or to ask the defendant or defense witness how or why they did
something or give them an opportunity to explain by asking a question that is too open ended. The
prosecutor should be seeking concessions on facts, not on conclusions ― the defendant will rarely
concede a conclusion and attempting to seek it may simply result in an unproductive argument overwhat conclusions to draw. This in turn will muddy the careful factual concessions that the prosecutor
hopefully has achieved.
Concession based questioning does not have to focus only on the testimony provided by the
defendant during the direct examination. This is not an opportunity to allow the defendant to simply
repeat their direct testimony,which would onlystrengthen its impact through repetition and further the
defenseʼs theory of the case. The cross examination also does not have to cover all areas that werecovered by the defendant on direct examination. Instead, the prosecutor should use this time morestrategically and focus on the areas the prosecutor wants to highlight,such as the defendantʼs need formoney, the items found in their home, the incriminating statement made at arrest. In fact, theprosecutor does not have to pursue topics in chronological order ― it can be disorienting to the40

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defendant if the prosecutor moves around in topics and the defendant does not know what will be next,
although the prosecutor must not also make it too disorienting for the fact finder. As with direct
examination,“primacy and recency”still matter,so the prosecutor should consider beginning the crossexamination in an area where they feel comfortable that they will score concessions.
One of the benefits of starting the cross examination with the concession-based approach (comparedto the frontal-assault approach where the prosecutor seeks to force the defendant to improbably admit
their guilt)is it allows the prosecutor to stay in control and develop a rhythm with the defendant inwhich the defendant is having to admit a series of small facts that strengthen the prosecutorʼ
s case.
The concession-based approach does not require of displays indignation or outrage. Quite the opposite,
it allows the prosecutor to appear to the fact finder as the systematic and reasonable person trying to
get to the truth rather than create an image of the prosecutor as an intimidating or emotional bully
trying to force a defendant to admit conclusions.
A straightforward example of a concession-based cross examination of the defendant would be
where the defenseʼs theory is self-defense. A series of fact-based concession questions,if supported byother facts in this case, could proceed as follows:
You drove to victimʼ
s apartment
You were there at 9:00 p.m.
You were with the victim
You owed the victim money
You had an argument with the victim
You had a knife
This knife (showing the exhibit)
You stabbed victim in the chest
You left victim in his apartment
The victim was bleeding
The victim was moaning
You didnʼ
t call 911
You didnʼ
t contact neighbors
You went to your car
You put the keys in the ignition
You put into gearYou drove away
You didnʼ
t stop along the way
You threw the knife away
You drove to your apartment

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You entered it
You closed and locked door
You didnʼ
t call the police
You didnʼ
t call the ambulance
You went to bed
At this point, the prosecutor could stop this line of questioning. It is critical to resist the urge to
ask the hostile witness to draw your conclusion ― “
So, you fled to avoid getting caught?” This
question would only lead to the defendant coming up with their own explanation and would undermine
the facts the prosecutor developed through careful concession-based questioning.
Once logical areas of concession-based cross examination are exhausted,it may be time to turn toa more confrontational approach but still focusing on using preplanned lines of impeaching thedefendant or the defense witness. Such impeachment can come in many forms ― by prior inconsistentstatement,by prior omission,by other bad acts,by bias and interest,by motive,by ability,by lack ofperception or by memory. Concession-based cross examination can even effectively be used in these
impeachment categories of cross examination in appropriate cases.
For example, a defense alibi witness provides a statement in court that is inconsistent with astatement that the witness provided earlier to the investigator. There is an effective three-step process
to show the original statement was more truthful, and demonstrate that the new story has been
fabricated to save the defendantʼ
s skin.
The first step is to confirm the new statement, locking the alibi witness into this new version.
You testified a moment ago on direct examination that you were with the defendant during the nightof the burglary, correct?
The second step is to credit the prior statement to demonstrate the witnessʼfirst version of the facts
was more likely true by asking the defense witness a series of short questions. Such question could
be as follows:
Back on July 1, you were interviewed by the police correct?
And that was at your home?
And they asked you a series of questions?
And you provided them with answers?
You understood that you were talking to the police?
This was a criminal matter, it was important to be truthful to the police, you would agree?
When they asked you that question, the burglary in question had taken place only a few days
earlier?
Then comes the final step, to confront the witness with the prior inconsistent statement (whichshould be ready and marked). The confrontation should be done with the precise words used by thewitness on the prior occasion as much as possible.
You were asked by the police where you were on the night of the burglary,and you replied that “I
was in my house with my girlfriend the whole time,”isnʼ
t that correct?

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Having confronted the witness with the prior inconsistent statement,it is generally then a bad idea
to ask why their story has changed or to explain the contradiction. To do so,would blunt the impactof the approach;let the defense attorney try to address the contradiction,you now move on to anothercontradiction and another contradiction,ifpossible. Perhaps ifthere are no other significant contradictions,time to move on to the bias of the alibi witness,for example,that they are good friends with thedefendant:
Known each other for ten years
Play basketball together every week
Live close to each otherWent to school together
Visited defendant in jailWould you agree heʼs one of your best friends
You try to be a good friend to him
You donʼt want any harm to come to him
You donʼt want to see him go to prison
M ore effective to build up facts then to start with the opinion question (“youʼ
re good friends withthe defendant, correct?”)that will lead to a long and not very helpful response by the witness.
Given that defense witnesses are likely to be hostile, the prosecutor has to be prepared for nonresponsive answers. It is advisable to have an escalating strategyto address it. First,repeat the question,
word for word if possible. If the witness still does not respond to the question, ask if witness
understands the question. Then,ask the witness if something is preventing him or her from answering
the question. If there is still no answer, consider asking the court to order the witness to answer thequestion. If the defense witness is still non-responsive,the prosecutor can ignore the witness and,whenstops talking, say, “Oh, are you finished? Now please answer my question.”
As with every witness, preparation is essential. If a fellow prosecutor can play the role of the
defendant and act in a uncooperative and hostile manner,the prosecutor can practice asking questions
and determine what concessions they can reasonable obtain, what strategies actually work, anddetermine how and when to end the cross examination on a strong note.
Both direct and cross examination require planning and practice. Prosecutors stand to gain when
they consider trial techniques developed and tested in other jurisdictions and properly adapt them tothe context of their own courtroom. While rules are different,the common goal of effective advocacy
is true everywhere ― to add value to the case by being persuasive.

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