First of all, I must admit that the two Criminal Advocacy exams were two of my least favourite. I know I say this about quite a few of the exams, but I really didn’t think I would enjoy these two because of the perceived unpredictability of handling a ‘witness’. Obviously as a prospective barrister, this is really something you have to conquer eventually, and which I feel I have now done, so trying to achieve this during your BPTC is definitely beneficial. In light of this, here is my insight into the Examination-in-Chief and Cross Examination exams, and what I wish I had known this time last year.
First of all, it is important to note that these two exams are set locally by each provider, and therefore may well vary across the cohort. Our provider gave us a very helpful hints sheet after each of the mock exams to try to summarise the biggest and most common mistakes that were made. Obviously I wouldn’t want to replicate the whole thing here without permission, but I have had a read through to jog my memory, and used my own feedback as well, to try and assist you all with your own preparation.
It is crucial to have a thorough understanding of the materials given to you – everything is there for a reason, even if it is to try to lure you into a carefully placed bear-trap with some juicy but inadmissible evidence, or something which is actually irrelevant but is included to test your analysis skills.
Once you have been through the materials a few times and got a good grasp of what you have to work with, use this understanding to piece together a case theory. Get your basic ‘end point/summary’ theory worked out, and then work out all the finer details which need to be extracted in order to support and demonstrate this case theory. Make sure you highlight anything that is inadmissible, and ensure you do not introduce it into your exam (you should also be ready to stop the witness introducing it, if they try).
For examination-in-chief, the most important piece of preparation is probably to look up the offence in question, and the elements that need to be shown. Make a list of the elements, and work out how you would go about extracting each of these from the witness. For example, if you are looking to demonstrate that one defendant encouraged the other defendant to steal, and you know that your witness saw defendant 1 nodding to defendant 2 before the latter stuffed a stolen top under their jacket… bingo, you have encouragement, so ensure this is extracted from your witness. The whole idea of examination-in-chief is to address each of the elements of the offence and show that they are present, so for goodness sake make sure you do this!
For cross examination, look for any inconsistencies you can highlight before you’ve even got into the room with your witness. More inconsistencies will undoubtedly arise during the exam itself as well, so ensure you are familiar enough with the materials that you can pick these out during the exam. For example, if the witness said in his witness statement that he was ten feet away and therefore had a good view, but has just stated in the exam that he was actually 50 feet away – you must be able to spot this and respond accordingly.
I would suggest taking notes into these two exams, however, as always, be careful about how much you take in. I found a list of very short bullet points (one or two words, or a short phrase) was perfectly fine, along with the materials we were provided with, in case I needed to refer to anything during the exam. Anything more than this is asking for disaster. Certainly don’t write a script, as you need to be fully flexible in how you respond without panicking that you have lost your place.
Remember as well that criminal advocacy is different from civil – in particular, there are no bundles, and evidence must be adduced. Make sure you do this in the right way for the various things that may come up (e.g. police interviews, witness statements, physical evidence such as scraps of paper).
One of the biggest tics or habits that people do not realise they have is saying ‘okay’ or ‘thank you’ or anything similar after each reply from the witness. Hopefully this will have been drummed out of you by the time you reach the exam, but do keep an eye on it. There is nothing more distracting than counsel saying the same thing after every answer – you do not have to acknowledge each individual answer verbally, you must simply show you are listening by responding appropriately in your questioning.
Also remember to keep your questions focussed. It should be clear why you are asking the question. If a question can be broken down into three smaller questions, then do so, and take everything in tiny bite-sized chunks. It is much easier for the examiner to follow, and would be much more productive in a real court with a jury as well. You don’t want to gallop ahead only to realise that no one has heard or taken notice of a crucial piece of evidence, because it was lost amongst 20 other answers in a short space of time.
Another important point is to listen to the witness and respond. You must demonstrate that you are paying attention – you are not giving a speech, you are asking them questions in order to elicit responses, so make sure you then use those responses to shape your questioning! They might just throw up something that absolutely makes your case, so you need to be able to recognise this.
Visual demonstrations are also a brilliant way of eliciting further details from a witness in relation to physical crimes. For example, the witness’s statement says he was pushed on the shoulder, but you can’t quite get him to give a good verbal description – ask a few more questions and then ask him to demonstrate exactly how he was pushed, or where he was hit, etc. Watching a reconstruction (however informal) always has more impact than a verbal description.
There are also differences between the two exams, naturally.
In examination-in-chief, it is crucial to remember the general rule of using non-leading questions to guide your witness through the evidence. Just remember, the witness here is your client, and you cannot put words into their mouth. In the 2011–12 cohort, the providers differed in how strict they were here – my provider allowed us to lead on anything that was not in dispute, but I was aware that other providers had a strict blanket ban on leading questions. Make sure you know which approach your provider takes! If your provider takes the approach that mine did, and requires you to lead on anything not in dispute, then make sure you are doing this – if nothing else it saves you valuable time in your exam, not forgetting that we also got marked down if we missed the opportunity to do it!
In cross examination, you can and should use leading questions. You should make sure you do not appear to accept the witness’s evidence, even impliedly, when cross examining – your whole purpose is to demonstrate why your own client should be more believable than the witness in front of you. However, you absolutely should not argue with the witness, and nor should you comment on the evidence yourself. We were always advised to undermine the credibility of the witness first, and then put your case. Elicit the inconsistencies, and use this to demonstrate why the witness should not be believed (e.g. they are a liar, or are mistaken, or just didn’t have a good enough view to justify what they are saying) and then put forward your much more believable case and demonstrate why it is more believable.
Finally, just remember to take a deep breath before you walk into the exam room. Do as much preparation as you can, run through scenarios of how your witness might respond in order to practise a few different directions of questioning, but otherwise just make sure you know the main points you need to address, and just go for it. Maintain a level head and you should do fine!