A consideration of one of the most commonly used cross-examination method in the law courts of Malaysia.

There is a report on page 23 of the New Straits Times of 22 December 2009 about the ongoing trial of two former Pakatan Rakyat state executive councilors, Mohd Jamaluddin Radzi and Mohd Osman Mohd Jailul. On the witness stand was Cik Norliza Musa who was there to explain the entrapment meeting between the accused, her and the star witness, Mohd Imran Abdullah, who posed as her boyfriend. Surjan Singh acted for the accused. He asked Norliza for details of the bribery. After she answered, Surjan was reported to have ‘read out the testimony by Imran where the latter said no other transaction was discussed…’ and no doubt with flourish said, ‘I have proven that Imran is a liar and I can prove that you lied. Tell this court now, who is lying, you or Imran?

The report continues that ‘[l]ooking pale, Norliza said she was telling the truth.’ I like that bit. Looking pale. I wonder whether the judge caught that and recorded in her notes of evidence something like, ‘Saksi nampak pucat selepas ditanya soalan agak hebat daripada peguamcara pembelaan. Mungkin…‘ (which more or less translates to ‘the witness grew pale after being asked a rather awesome question by the defence’s counsel. Maybe…?)

If you are an avid or even a cursory follower of court trials in our local newspapers, you would inevitably have seen a variation of this type of questioning. The most famous being the, ‘I put it to you that you are lying, or a liar!‘ declared emphatically.

I have heard some of our more senior lawyers confidently advising younger ones that that was the way to cross examine. I have come to realize that to do this is so very wrong and betrays a lack of learning in the art of cross-examination.

I, regrettably, learned this method earlier in my practice because of monkey see, monkey do. From my short time at the Bar, I realize that more so at the Malaysian Bar, one must complement if not corroborate with further reading and contemplation what one learns from mere observation. And just as you shouldn’t believe everything you read in the papers, you shouldn’t believe everything you see in the courts. Indeed, some of them even call for, as Coleridge famously explained where fiction was concerned, ‘a willing suspension of disbelief’.

But back to that method. Even as I practiced it, I felt uncomfortable with it. It never really did anything except provide for a sense of drama to whomever was sitting in the gallery (and there would usually be none, for my cases anyway). So why do I say it betrays a lack of learning?

To understand this, we must first understand the purpose of a trial and what it comprises of. A trial is where the court makes a finding of fact about what happened between the parties after considering the documents tendered as evidence and the testimony of the witnesses. That is all that the trial is about – the ascertainment of the facts.

There are basically two stages to a trial. The first is the trial stage with the examination of witnesses by either side. The second is the submissions stage. This is when your arguments based on the facts proven in court are presented. In legal practice, to argue one’s case is to make a submission. Cross-examination, the likes of which I have shown in the example above, takes place in the trial stage.

David Ross QC in his excellent book titled Advocacy (2nd Edition, Cambridge University Press, 180 pages) at page 32 writes the following:

[3155] There are some forms of leading questions that you should never use:

I put it to you (that you crossed the road).I suggest to you (that you crossed the road).

[3160] Although these forms of leading questions have passed through generations of advocates, you should never use them. Never. One judge described such questions as ‘ineffectual’. There are three reasons why these forms of questions are wrong. First, they are not in everyday speech. Second, they are not questions, even if you add at the end: “What do you say to that?” They are only an invitation to argument. Thrid, you deprive yourself of a question best designed to fit the case and the witness. A formula question is never as good as one that is carefully designed to fit the evidence. It lacks style.

[3170] Lord Hewart CJ railed against these forms of questions so many years ago.

One of ten hears questions put to witnesses by counsel which are really in the nature of an invitation to argument. One hears, for instance, such questions as this: “I suggest to you that …” or “Is your evidence to be taken as suggesting that …” If the witness were a prudent person he would say … “What you suggest is not business of mine. I am not here to make suggestions at all. What are the conclusions to be drawn from my answers is not for me…” What is warranted from the witness is answers to questions of fact. one even hears questions such as: “Do you ask the jury to believe …” [my emphasis].

His Lordship then disparaged that last form.

At page 59, David very kindly explains again why lawyers shouldn’t do this:

… Do not ask the witness to agree with the conclusion. The question is superfluous. Worse, the witness may disagree with you and give perfectly cogent reasons. So watch and listen, and resist the temptation to deliver the coup de grace. The inference or conclusion will be all the more powerful if the fact-finder is led inescapably to it without your baldly stating it.

So clearly, we have it on high authority that this method is just plain wrong and a waste of time. Let me explain further. Firstly, most witnesses no matter how wrong they have been shown to be will ever admit to being a liar.

Secondly, there is no need to show that a witness is lying at the trial stage. Whether they are lying or not is of significance only in the submissions stage. Only rarely does one get an outright admission from a witness that they lied in their testimony. Most of the time, you have to argue before the court to demonstrate they were lying by referring to their testimony as against the other documentary evidence or their own earlier statements. You ‘prove’ that someone is lying by argument, rarely by outright tearful whimpering admission.

Thirdly, since it has no legal purpose whatsoever and only has great dramatic effect, that is why unlearned and dramatic lawyers tend to use it. There is only a downside to using it as David Ross explained earlier i.e. the witness may have a superb reply to your ineffective cross.

So there you have it. This method of ‘I put it to you that you are… lying!’ is wrong, a waste of time and unless it is admitted by the witness may fall foul of Rule 13 of the Legal Profession Rules (Practice and Etiquette) 1978 which reads as follows:

13. Advocate and solicitor to guard against insulting or annoying questions.

An advocate and solicitor shall guard against being made the channel for questions which are only intended to insult or annoy, and to exercise his own judgment as to the substance and form of the question put.

I certainly hope that the public are no longer fooled by such empty dramatic gestures and that lawyers on our part, stop playing the fool.

Fahri Azzat practices the dark arts of the law. Although he enjoys writing and reading, he doesn't enjoy writing his own little biographies of himself. Like this one. He wished somebody else would do it...

9 replies on “‘I put it to you that you are a LIAR/LYING!’”

  1. so if as a witness you are confronted with a " I put it to you that…", could I just say nothing in that I have not been asked a direct question? " I put it you surely is a hypothesis on behalf of the lawyer.

  2. Sudara Fahri,

    What you raised about ,"I put it to you that you are lying." is indeed very interesting.I remember when I was a school boy in the fifties in Raub I used to witness court cases . Even the famous lawyer like D.R. Seenivagam used to use this term on witness " I put it to you that you are lying", in cases presided over by the late Justice Mahmood Hashim. In fact we in the gallery used to look forward for this bit of drama that almost always rattled the witness, before he regained his composure to deny the accusation. I am not read in law but always thought that this was the cherry on the cake by the counsel after softening the witness at the trial stage.

  3. My dear Fahri

    The term, "I put it to you," has more often than not been over-used.

    When an advocate prefaces his remarks with, "I put it to you," he is in effect sending a strong signal to the Judge that what follows is germane to the "theory of his case."

    As usual, most of us over-use that term of art until it has now become just another term.

    1. Thanks for the comments!

      Hi Julian, thanks for stopping by! Please feel free to ask as much as you like. In answer to your questions: (1) They act like that because they do not know any better and watch their lesser skilled seniors practising it so they think it is the correct method. It also betrays that they have taken no initiative to read up books written by very able practitioners who have taken the trouble to explain their craft to us. (2) There is a possibility and it very much depends on the judge. If they are the shallow, unlearned sort that plays to the gallery they just might do something silly like that. A good judge sees what is actually happening beneath the drama and won't be fooled by the theatrics of the 'drama lawyers'.

      HPLooi, if something is repeated often enough it may turn into the truth. And bad technique practised does not make it good. I took the trouble to write this because a promising young lawyer mentioned to me that one of his seniors told him this was how it was done, which I found quite disappointing, especially since he did not know that what he was teaching was wrong.

      Telurdua, as I mentioned earlier, it was not just used frequently there. Just go into any trial on going trial and sit in long enough and you would most likely hear it!

      1. Hi Mr. Fahri,

        "I put it to you that you are lying."
        "I put it to you that you went over to somebody house ans stole some cash." etc

        May I know what would be the best answer to such accusative statement?
        Must a witness answer this with a "Yes" or "No"? Or can a witness further elaborate?

  4. Well this is interesting.
    In my experience as the lay panel member of countless BAR Disciplinary hearings, counsellors (for respondent or complainant)will usually finish their cross-examination with a “I put it to you…” ; “…that you are lying …” etc.

  5. That was interesting. I know very little (nothing) about the art of cross examination.

    May I ask you two questions regarding the above?
    1. Do lawyers act like that because they have watched too much LA Law (or whatever TV series)?
    2. Although judges should in theory only be concerned with statements of fact, is it also not possible that they will be influenced by the drama too?

    thanks :)

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