We all know that trials, like games, have their unique set of rules – who does what, when can this or that be done, what is permissible or impermissible, etc. We generally refer to them as the rules of procedure and evidence. In another context we might call them the rules of the road. In sports we just call them the rules. Try playing a game without them. Worse yet, try playing a game where the referee is also a player and when it comes to his or her behavior, the rules apply or are redefined based on whim and fancy. Just how fair would such a game be?
In the trial game, the parties have the right to ask questions, but so do judges. Depending on the procedure, the judges may have the right to take the lead, leaving the prosecution and the defence to mop up. When the parties have the right to take the lead, judges are expected to ask discrete questions, mostly for clarification, and not for the purpose of pursuing a preordained result (as prosecutors of all stripes and shades do).
In a judge-controlled procedure, where the judges have the dossier and are expected to look for the objective material truth, the judges take the lead. One queries whether in these proceedings the judges, in testing the evidence and veracity of the witnesses, are entitled to ask unfair, irrelevant, or just plain improper questions. For instance, should they be asking questions where the predicate of the question mischaracterizes the facts or assumes facts not in evidence? Should they be asking the witness to speculate? Should they be trying to trap the witness by forcing words into his or her mouth?
At the ad hoc hybrid tribunals where the proceedings are party-driven, one sees the full gambit, especially from judges who were installed without ever having any experience as judges, prosecutors, or defence lawyers. Some of the judges think because they have donned the scarlet robe they are entitled to ask any question, however poorly or inappropriately framed, simply because they are judges. Never mind the irrelevance or worthlessness of the answer.
If you are on the receiving end of such questions, and the defence usually is, you tend to wonder what to do. If you let the questions slide, they will only become worse. There is no telling how the answers will be considered, but if a judge is unaware or indifferent to the propriety of the question, it is safe to say that judge is likely to be equally clueless as regards the quality or weight of the answers. In fact, it can be assumed that judges who pose inane questions are likely to feel ownership over the answers since they are the legitimate offspring of their brilliant questioning.
My advice is to nip it in the bud. Stand up and object politely. If the judge does not get it (and there are some who will not), then embark on a legal exposé as to why the impugned question is inappropriate – even if posed by His Honor.((A colleague tells the story of a misdemeanor trial when he was but a novice. The judge innocently asked a question which would have yielded inadmissible evidence. The young lawyer objected. Startled, the judge asked the basis. After hearing the grounds, the judge then pondered a moment before sustaining the objection and, with a twinkle in his eye, admonishing himself to refrain from any further such inquiry. He then rendered an acquittal. A rare bird indeed.)) Judges are quick to claim that they will give the law if they are given the facts (“da mihi factum, dabo tibi ius”((Latin for “give me the law and I will give you the facts”. See Mattias Derlén, Multilingual Interpretation of European Union Law 314 (Kluwer Law International 2009). ))) but occasionally, they do need to be reminded (or schooled) on what the law is, inclusive of which are the rules of procedure and evidence, and other technical aspects of the trial proceedings. If it becomes necessary to conduct a mini lecture, do seek leave; ask and you might receive.((In Prlić et al., during the cross-examination of an expert witness, the judges interrupted and began asking questions on matters that would be covered but only after a proper foundation was laid. The situation became so acute that I reacted, suggesting that the judges schedule a special hearing to allow the defence and the prosecution to address the Chamber on how the proceedings are generally conducted, or in the alternative, the judges should consider removing themselves from the case or the tribunal if they were unable or unwilling to follow the proceedings as adopted and applied by other chambers at the ICTY. The Trial Chamber granted the special hearing and both the Defence and the Prosecution effectively lectured to the judges on how the examination of witnesses should be conducted. Prosecutor v. Prlić et al., IT-04-74-T, Transcript, 14 March 2007, pp. 15628-33; 22 March 2007, pp. 16139-48.))
Now to the tripwire for this post: a recent experience at the ECCC.
On 22 September 2016, International Co-Lawyer for Nuon Chea, Victor Koppe, reacted to a question posed by the French Trial Chamber Judge Jean-Marc Lavergne:
I know it is very hard for judge Lavergne to hide his bias; it’s not easy for him I know, but at least he can make an attempt.((KRT judge accused of ‘bias’ while probing witness, by Erin Handley, 23 September 2016, Phnom Penh Post.))
Strong words, but what was the question that prompted this cutting entreat? Judge Lavergne had asked a leading question, but not just any kind of leading question – a loaded one that traps the weary and the confused, plants words in the witness’s mouth, attempts to summarize by mischaracterizing the witness’s evidence: the perilous so question. Some context before getting to the impugned question.
The witness had been led through a series of questions where he noted that while he had sufficient food, others were hungry, that he did not personally see anyone flee to Thailand to get away from the Pol Pot regime (Democratic Kampuchea), and that he was not aware of any enemies of the regime (meaning, presumably, that he was unaware of any internal purging). Now it is worth pointing out that the questions are posed in French and answered in Khmer, and also translated into English. Some things can be lost in translation, though Judge Lavergne generally speaks clearly and calmly. Judge Lavergne also has a habit of asking compound questions, which often elicit only one answer (I represented Ieng Sary before him in Case 002/01, so I am very well acquainted with his questioning style and technique).
In any event, having heard a number of answers to his questions, Judge Lavergne resorted to the so question. It tends to be a wrap-up, open-ended question when posed on cross-examination and a leading question when posed on direct examination.
We hear the so question every day when we watch interviews on television by journalists. It occurs when the journalist is trying to get the sound bite, to get the interviewee to admit to something, or to summarize the position of the interviewee. Listen carefully the next time you watch interviews by a clever journalist, and you will notice that occasionally the base or foundation (predicate) of the so questions mischaracterizes the previous information provided by the interviewee, which the journalist is using as the predicate of the loaded so question. The interviewee is usually called upon to say “yes” or “no” to loaded facts, some of which he or she may not agree with or are just a mischaracterization of what was previously said by the interviewee. And if not careful or attentive, the interviewee falls into a trapped suggested answer – generally the product of a leading question, which, when dissected, is nothing more than a declarative statement with an inflection or with a tag-on phrase to make it sound like a question (e.g., “… isn’t that so?”).
Lawyers also indulge in this sort of questioning. On cross-examination, it can be a deadly question for the sloppy lawyer who thinks the witness needs to stick to a “yes” or “no” answer. Since the so question amounts to a summary question, the witness who notices that the predicate is misleading is entitled to explain away and give an alternative summary of the evidence – generally one not favorable to the questioning lawyer.((I have taught trial skills to law students and lawyers for nearly three decades. Those students are taught that a question on direct starting with “so” is a red flag warning to one’s opponent that an impermissible leading question is about to be issued, while a so question on cross-examination demonstrates a lack of control which will draw myriad objections, and often an unwelcome answer from the witness.))
And, not to stray too far away from our subject, the so question is generally what is considered to be the one question too many in adversarial proceedings. It is the question that you never ask because it violates one of the 10 Commandments of cross-examination, as noted by the brilliant lawyer, judge, and professor, Irving Younger.((Irving Younger, The Art of Cross-Examination, 10 Commandments of Cross-Examination, 10. Save the Ultimate Point for Summation – by not asking one question too many (ABA Monograph Series No.1, ABA Section on litigation, 1976). See also Terence MacCarthy, Maccarthy on Cross-Examination 52 (ABA Publishing 2007), giving an example of “one question too many”; and what is considered the most comprehensive text on cross-examination, Larry S. Pozner and Roger Dodd, Cross-Examination Science and Techniques (LexisNexis 2004), paying tribute to Younger’s 10 Commandments, but noting that it contains “many admonitions that the cross-examiner would recognize . . . only after breaking the commandment.” § 1.07. Pozner and Dodd explain that telling someone not to ask the one question too many is akin to instructing a tennis player not to miss his or her first serve. They offer three “positive” rules, that enabling the cross-examiner to understand the rule before it is violated and the damage is done: 1) leading questions only; 2) one new fact per question; and 3) a logical progression to one specific goal. Id., § 8.10.)) The so question one poses rhetorically in summation and then proceeds to give the desired answer as to what the evidence shows. Safe, effective, smart.
Back to Judge Lavergne’s question.
Judge Lavergne, having posed several questions to the witness, went in for his grand finale or rather his coup de grâce question:
So as a matter of fact, everything was perfect during the period of Democratic Kampuchea, you didn’t experience any problems, there were no enemies [and] people ate to their fill?
The predicate to the question does not reflect the witness’s testimony. The witness did not claim to be stating the facts, but merely what he saw and experienced. He never said that everything was perfect. He never said that there were no enemies. And he never said that “people ate to their fill.” None of these “facts” were part of the witness’s evidence. The witness noted that there were some problems, though he was unaware that some of the problems, such as that enemies of the state, existed. He also noted that some did not have enough to eat. A far cry from saying as a matter of fact that there were no problems and all were able to eat to their fill.
Whether Judge Lavergne’s intentions were to provoke the witness (a technique to which prosecutors and defence counsel avail themselves), or whether he was being snide out of frustration about the answers he was getting from his questions, or whether he was trying to get the witness to give a monosyllabic answer to tick off an evidence box for predetermined reasons, is anyone’s guess. What is obvious, however, is that the question, as posed, was unfair and inappropriate. More troubling – and this is something that seems to have been lost on Judge Lavergne – his question did in fact give rise to the (no doubt unintended) perception that there was an ulterior motive in posing the impugned so question: bias. Such questions when posed systematically over the course of a trial also tend to give the impression that the judge is a fifth columnist,((American author James Ellroy offers a cogent definition of Fifth Column in his latest crime fiction novel Perfidia: “Fifth Column: noun, and a popular colloquialism of 1941 America. The term derived from the recent Spanish Civil War. Four columns of soldiers were sent into battle. The Fifth Column stayed at home and performed industrial sabotage, the dissemination of propaganda, and numerous other forms of less detectable subversion. Fifth Columnists sought to remain anonymous; their ambiguous and/or fully unidentified status made them as dangerous or more dangerous that the dour columns engaged in day-to-day war.” James Ellroy, Perfidia, Epigraph (Windmill Books 2014). )) or as I like to call them, the fifth prosecutor.
Some may be quick to point out that after Mr. Koppe’s intervention, Judge Lavergne rephrased his question, to supposedly clear the matter and show that he in no way was attempting to suggest anything through the impugned so question. But, as every slow-to-object or fail-to-anticipate lawyer knows: you can’t unring the bell. Expectedly, the witness did not fail to abide; he provided the expected answer. Judge Lavergne was vindicated. Well, not so fast. Don’t uncork the champagne just yet. Witnesses tend to get confused, flustered, and frightened when questioned by judges. After Mr. Koppe’s remarks and all that followed, it is doubtful whether the witness would have said anything other than what was necessary to get out of the witness box as soon as possible. Could I prove that in a court of law? No. But my experience tells me that witnesses, who find themselves in the middle of what they may perceive as a heated exchange between the lawyers and the judge, are more apt to take the course of least resistance so they can get out of the witness box. And going along with the elevated, red robed authority figure, was certainly safe and the path of least resistance. Highly unlikely that in this situation the witness would contradict whatever Judge Lavergne had suggested.
Considering Mr. Koppe’s reaction, it would appear, at least to his eyes and ears (and he is the one soldiering through the trial), that this method of questioning is so systematic that, as Oliver Wendell Holmes, Sr. remarked, “Even a dog knows the difference between being kicked and being stumbled over.” If indeed so, this is unfortunate.
Judges are entitled to ask questions, especially in case-managed systems like that of the ECCC. However, they too must abide by the procedural rules and best practices. Asking leading questions (which, incidentally, are broadly prohibited at the ECCC), especially such as the impugned so question we have seen are not appropriate. Lacing a suggestive question with facts not in evidence or mischaracterizing the witness’s testimony does little to aid the quest for the truth. Sarcasm has its place in adversarial proceedings, but not from the mouths of judges, who must remain above the fray, comporting themselves with the utmost care, objectivity, and patience.
I leave it to others to score Judge Lavergne, or better yet, to judge him on his questioning techniques, tactics, and motives. Perceptions matter.
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