The narrative questioning and cross-examination techniques are among the most widely used of the methods of asking questions. These techniques are used to understand what is being recounted more clearly and to carry out an in-depth inquiry. This article will mainly explain cross-examination techniques.
The Narrative Questioning Technique
The narrative questioning technique is a method of asking questions used to get the other party to speak in greater detail. This technique is used especially in witness statements. The narrative questioning technique is used not to obtain the answers to predetermined questions, but to understand in detail what the witness recounts.
The narrative questioning technique generally begins with open-ended questions. Open-ended questions are questions that allow the witness to give a detailed account. These questions are used to understand the witness’s account more clearly and to obtain more detail. For example, questions such as “How did it happen?” or “When did it happen?” are a good starting point for using the narrative questioning technique.
In our Code of Criminal Procedure (CMK), the provision on putting questions to the witness is Article 59, the provision on putting questions directly (without the intervention of the judge) is Article 201, the provision on putting questions about a co-accused, witnesses, experts and a document that has been read out is Article 215, and putting questions in connection with the discussion of evidence is in Article 216. Under CMK 210/1, the witness must be heard at the hearing, and this step cannot be skipped by reading out the record of an earlier hearing. At the hearing, the witness answers the narrative questions put by the judge (CMK 59/1) and is listened to without being interrupted. Narrative questions are important to enable the witness to recount the truth accurately.
The Cross-Examination Technique
The cross-examination technique is a questioning technique used to identify inconsistencies or ambiguities in a witness’s statement. This technique is used to determine the truth or falsity of statements given previously.
How Is the Cross-Examination Technique Used?
The cross-examination technique is used to determine the consistency or inconsistency of the answers to predetermined questions. This technique is used especially to bring out contradictions in the other party’s statement. The cross-examination technique is used to carry out a more in-depth inquiry into a particular matter and to bring out the truth more clearly.
For example, if ambiguities or inconsistencies are noticed in a witness’s statement during an inquiry, the cross-examination technique may be used. For example, where it is said that the witness could not remember a particular date in a statement given earlier, the witness may be asked, using the cross-examination technique, whether or not he remembers that date.
The questions asked in cross-examination can generally be divided into certain categories. These categories are as follows:
QUESTIONS RELATING TO THE PERSON’S 5 SENSES AND POWER OF RECALL
A person’s perceptive ability is his capacity to process and interpret the information he receives from the outside world. Perceptive-ability questions used in cross-examination are aimed at understanding how the person perceived events, how he reacted to events and how his memory works.
For example, the question “What was the colour of the car at the time of the accident?” may be used to reveal how attentively the person followed the event and how strong his memory is. While the person’s clearly remembering the colour of the car at the moment of the accident indicates that his perceptive ability is strong, his not remembering it may show that his perceptive ability may be weaker.
Similarly, the question “In which direction were you going?” is also aimed at understanding how the person perceived the event. While the person’s answering correctly shows that he followed the event and listened carefully, his answering incorrectly may show that his perceptive ability may be weak. The purpose of such questions is that they be used to understand how the person reacts to events, how strong his powers of observation are and how well his memory works.
QUESTIONS RELATING TO IMPARTIALITY
Questions that may be asked about the person’s impartiality aim to assess whether or not the person approaches the event or the case impartially. Some examples:
– In favour of or against which party are you testifying in this case?
– Do you have a special relationship with anyone who is a party to the case?
– Who invited you or chose you as a witness?
– Does the outcome of this case have a significant effect on you?
– Is any of the parties to the case your employer or your client?
– Is any of the parties a family friend or a relative of yours?
– Do you feel prejudiced against this case or that you have chosen your side?
– Is any of the parties’ lawyers your lawyer or someone you know?
One of the purposes of these questions is to look for any sign regarding the person’s impartiality or independence. Therefore, the answers may give clues as to whether the person has any prejudice or conflict of interest in relation to the hearing or the case.
VERIFICATION QUESTIONS
Verification questions are questions asked to check the accuracy of the statement or information given by the witness. Questions of this kind are generally formulated as open-ended questions and aim to bring out information that supports or refutes the witness’s account.
Examples:
– Were you at the place where the incident occurred? In which direction were you looking when you observed the incident?
– Do you remember what activities were taking place at the time this incident occurred?
– Could you tell us about the clothes the suspect was wearing, as you allege? What can you say about the colour and style of the clothes?
– What do you remember about the number plate of the suspect’s vehicle? Do you have any recollection of the colour or the letters of the plate?
These questions may be used to check the consistency of the witness’s account, to focus on details and to enable the witness to remember the details of how the incident took place.
DETAIL QUESTIONS
Detail questions are questions asked to verify information concerning the details of the event recounted by the witness or to bring out misunderstandings. For example, in a road traffic accident case the witness may have claimed that the speed of the vehicle at the moment of the accident was very high. In this case, detail questions may be used to obtain precise information about the speed of the vehicle. Examples of detail questions may be the following:
– Do you remember for how long the vehicle accelerated?
– Can you estimate at how many kilometres per hour the vehicle was travelling?
– Comparing the vehicle’s speed with other vehicles, can you say how fast it was?
– Do you remember what gear the vehicle was in at the moment of the accident?
– Was the sound of braking heard at the moment of the accident?
OPPOSITE QUESTIONS
Opposite questions are questions used to understand different aspects of the witness’s statement, and their answers are generally limited to yes or no. For example:
– Were you not at the scene of the incident that day? Yes or no?
– The suspect was wearing a blue jacket, correct? No, he was not wearing one.
– Were you on the other side at that moment? Yes or no?
Questions of this kind may be used to check the consistency and accuracy of the witness’s statement. However, frequent use of opposite questions may wear down the witness’s defence and reduce the clarity of his answers. Therefore, the use of opposite questions in cross-examination should be measured.
LEADING QUESTIONS
Leading questions are questions asked with the aim of steering a person’s thinking or behaviour. Since these questions are aimed at influencing the thinking and the reply of the person answering, they should not be used in a situation where that person is expected to give accurate information.
By way of example, a lawyer’s asking a person “have you ever had a tendency to commit theft?” is a leading question because it may make it easier for him to believe or accept that he did not commit theft.
Similarly, a question by a police officer in the form “did you see that your vehicle was not going at full speed?” may make it easier for the person to remember the event and to give his answer in the direction that it was not going at full speed.
For example, in an examination a lawyer conducts with a witness, a leading question may be as follows:
The lawyer may ask, “You had been at the scene before, hadn’t you?” In this question, the lawyer has asked the question using a statement that leads towards the witness having been at the scene, and has thereby steered the witness in giving an answer. Questions of this kind may prevent answers from being objective and may make it harder to reach correct conclusions. Therefore, care should be taken that questions are objective and neutral.
MISLEADING QUESTIONS
Misleading questions are questions designed deliberately to manipulate a person’s answer. These questions are generally used to steer the person’s answer towards a predetermined conclusion or to distort the person’s answer in some other way. For example, a lawyer may ask misleading questions in order to distort or mislead a witness’s statement. For example, a question such as “you weren’t there that night, were you?” is a question designed to mislead a person because it steers the answer towards a predetermined conclusion. For example, “did you really see the police car there, or were you mistaken?” (In fact the witness is not sure that the car was there, but pressure is applied in the question through the word “really”) Another example, “Why were your eyes constantly looking at the ground while you were recounting the incident? Are you trying to hide something?” (In fact the witness may not be hiding anything, but an accusatory expression is used in the question)
Misleading questions may also be used to confuse a person or to cause him to make a mistake. Therefore, the use of misleading questions is unethical and, since they cannot be answered properly, it is not appropriate for them to be used in court or in other legal proceedings.
EMOTIONAL QUESTIONS
These are questions asked to stir the witness’s emotions or to make it harder for him to give a statement. Emotional questions may be asked to gauge witnesses’ emotional reactions or to understand the impact of an event. These questions not only elicit information from the witness about what he saw or heard, but also bring out his personal reactions to the event, his emotional state and his emotional thoughts. Therefore, emotional questions generally relate to the nature of the event and are asked in order to understand the impact the event caused.
By way of example, in a road traffic accident case, rather than asking the witness what kind of person the individual who died in the accident was, the lawyer may prefer to ask about the feelings the witness had after seeing the accident and what kind of impact the event had on him. In this way, the lawyer can understand how the witness reacted emotionally to the event and the impact the event had on him.
IMAGE QUESTIONS
These are questions asked to call into question the witness’s reputation or credibility. Questions asked in cross-examination to call into question the witness’s reputation or credibility are generally more extensive and detailed. These questions are used for the purpose of testing the witness’s reliability in telling the truth or his potential for being misleading. Some examples are as follows:
– Have you ever lied before?
– Could you be lying right now as well?
– Have you received help from anyone in connection with this matter?
– Do you have a personal interest in this situation?
– Why are you so sure of what you are saying?
– How did you express yourself on this matter before?
– Is there anything that contradicts what other witnesses have said?
– Are you confusing what you heard about the incident with the facts?
– Is there any concrete evidence of what you are saying?
Since these questions aim to call into question the witness’s credibility and reputation, they should be prepared carefully and judgemental conduct should be avoided. Furthermore, they must comply with the rules of the court and must protect the rights of the person being tried.
TIMELINE QUESTIONS
These are questions asked to verify the chronology of events or to test the witness’s memory. Questions asked in cross-examination to verify the chronology of events or to test the witness’s memory are generally questions requiring detailed information. These questions may be used to make the witness’s statement more consistent and reliable. Examples may be the following:
– “Where were you on the day the incident took place?”
– “How many people were there, and what do you know about their identities?”
– “Can you describe the physical features of the place where the incident occurred?”
– “What were you wearing at the time the incident took place?”
– “What did you do after the incident, and whom did you speak to?”
Questions of this kind may be used to check the way the witness remembers and recounts the event. They may identify inconsistencies or gaps in the witness’s statement and may therefore call into question whether the event has been recounted accurately or the witness’s credibility.
CROSS-EXAMINATION ADVICE FOR LAWYERS
Cross-examination is a method that lawyers use to test the truthfulness, ability to recall and credibility of a witness, a defendant or a complainant. The advice below addresses some important points to be taken into account when conducting cross-examination:
1. Prepare: When conducting cross-examination, it is important to prepare in advance. Take detailed notes on the subject and examine the witness’s statements in advance. This will give you time to plan your questions and to be ready to ask questions at the right moment.
2. Keep Questions Clear and Simple: Try to formulate your questions simply and clearly. Complex sentences or questions containing more than one question may confuse the witness and make the answers even more difficult.
3. Avoid Asking Judgemental Questions: Judgemental questions are questions designed to influence answers or steer replies. Questions of this kind may cause your impartiality to be called into question and may damage the witness’s reputation. Therefore, try to ask objective and open-ended questions.
4. Listen Carefully: Pay careful attention to the witness’s answers and follow up on his answers. You can use the answers in later stages of your cross-examination. In addition, ask follow-up questions where necessary to verify the answers or to make the replies clearer.
5. Do Not Be Aggressive: Aggressive questions or an aggressive attitude may cause the witness to become defensive or the defence counsel to object. Therefore, try to adopt a calm and professional attitude.
6. Stay Current: During the examination, monitor the answers the witness gives and, when necessary, verify them with leading questions or with concrete examples. This is important in order to reach a correct decision.
7. Focus: It is important to stay focused during cross-examination. Listen carefully to the witness’s answers and take notes where necessary. It may be a good idea to plan questions for which you can later use the answers. Also, before going in the wrong direction, make sure that you have a good understanding of the answer to each question.
8. Remain Resolute: During cross-examination, it is important to display a resolute and determined stance. This inspires confidence and creates an attitude that the other side may find difficult to overcome. However, at the same time it is also important to be open-minded and ready to accept new information. Taking a prejudiced attitude may lead you to try merely to confirm your own prejudices instead of learning the truth.
9. Ask Smart Questions to Achieve Your Goal: During cross-examination, it is important to ask smart questions in order to achieve your goal. Choose your questions carefully and use previous answers to achieve your goal. For example, you may ask a more specific question to verify the answer given to a previous question.
10. Be Clear: It is important to express your questions clearly. The witness may be compelled to answer questions he has misunderstood or by which he has been misled. This may affect the outcome and make it harder for the cross-examination to achieve its purpose. In short, make sure that you express your questions clearly, comprehensibly and precisely.
11. Review Again at the End of the Cross-Examination: When the cross-examination is over, review the answers and your notes. Pay attention to the consistency of the answers and to the inconsistencies, and use this information to reach the conclusion of the cross-examination.
12. Mostly Avoid Asking Questions to Which You Do Not Know the Answer: Avoid asking a question to which you do not know the answer and where you cannot predict where the answer will go. Because the answer you receive may take you somewhere you never expected and may leave your examination in a difficult position.
13. Do Not Ask More Questions Than Necessary: Unnecessary and superfluous questions asked when you have the person in front of you cornered may give the person room to breathe or cause the subject to drift.
CONCLUSION
The narrative questioning and cross-examination techniques are used to gather accurate information and to expose false information during an inquiry. These techniques have advantages and disadvantages, and each technique, when used correctly, affects the results positively. However, the incorrect use of these techniques may lead to the other party being misled and to false information being obtained. The narrative questioning and cross-examination techniques are widely used in judicial investigations, police investigations, court hearings and other legal proceedings. These techniques are of vital importance for gathering accurate information and exposing false information.
The narrative questioning and cross-examination techniques provide many advantages when used during an inquiry. These techniques are used, especially in witness statements and court hearings, to gather accurate information and to expose false information. While the narrative questioning technique enables the other party to speak in greater detail and provide detailed information, the cross-examination technique brings out inconsistencies and ambiguities. The narrative questioning and cross-examination techniques also have certain disadvantages. For example, although these techniques ensure that accurate information is obtained, they may at times cause the other party to be misled. In addition, the narrative questioning and cross-examination techniques require many questions to be asked during an inquiry and are therefore time-consuming.
This is an English translation of the author’s article originally written in Turkish.
Link to the original article on Hukuki Haber: https://www.hukukihaber.net/capraz-sorgu-teknikleri-ve-avukatlara-tavsiyeler-umit-altay