WH Questions in Cross Examination

Though in terms of number the WH- Questions in cross examination are almost at par with those in direct examination (cf. Tables 11 and 12), the analysis of some examples of their use reveals that WH- Questions, specifically Open WH- Questions, were used in a different way in cross examination than they were in direct examination as example 28.4 shows. To best capture the contrast, example

28.4(a)-(h) is drawn from the cross examination of the same trial from which example 27.4(a)-(l) presented earlier is drawn.

Example 28.4: DS1Case06CE

(a) C: For how long have you known them? (b) C: How many?

W: Many, maybe ten years.

C: Ten years. Good. So you know a lot about them? Do you know whether they are married?

W: No, they are not. C: They are not.

W: I would be surprised if they are. ((Laughter)) C: Why do you say that?

W: Because they are chaotic.

C: Chaotic. How do you know they are chaotic?

(c) C: Interesting. So you know all their chaotic behaviour because you have been following P___ and W___ around, right?

W: I have not been following them. I said I have seen them fighting. C: Yes, you were at their every fight.

W: I was not at the fight, I observed maybe by coincidence.

C: Coincidence. You are able to document all their fights by coincidence and you know they are not married. Now do you have a family?

(d) C: Now your last fight with P___ and W__ you said was at G__. What kind of place is G_____?

W: What kind? C: It is a bar, isn’t it?

W: It has everything. They sell food, meat and even beer. There is a restaurant. C: There are also rooms, a lodging upstairs, isn’t it?

(e) C: Er you have told us you fought with them at G__ some time back. What was it about?

W: It was not a fight. I did not fight them. We quarreled because I refused to join their merry-go-round.

C: Why did you refuse?

W: As I said they are chaotic. Every group they join breaks up because they bring disagreement. So I refused to join their group.

C: Let me come back to the bar. You said that P__ and W___ are chaotic.You have seen them fight, you have been in a fight with them before, so you knew they are dangerous women, right?

W: Yes, more than dangerous in fact. ((Laughter))

C: Yet, you had no problem joining two chaotic and dangerous women at a bar? (f) C: [You had] taken two glasses of wine you said and you were not drunk. How

many do you take to get drunk? ((Laughter)) W: Your Honour do I have to answer that?

C: Yes you have to. I have the right to question you on anything because you have accused my clients. How many, do you take to get drunk?

W: I was not drunk. I had taken one glass of wine with dinner. I was just taking the second when P__ attacked me.

C: Were P___ and W__ drunk? W: I don’t know.

C: How did they look to you when you joined them? Did they look drunk? W: I don’t know how they look when they are drunk. ((Laughter))

(g) C: Good. Now, the fight. How long did it take?

W: I don’t know. I was not timing it. First of all it was not a fight I was attacked and beaten by two hefty women as you can see. I didn’t have time to look at my watch, I was- it was chaos.

C: Chaos? Yes because you fought back. They didn’t beat you when you were just sitting there, right? You fought them too, isn’t it?

(h) C: How come you didn’t go to hospital that night if you were badly hurt? W: At 11 am on my own. It was very late and bleeding stopped after I was given

first aid.

C: It was late. But you had gone to a bar alone at night and you finally went home alone right?

W: The clinic I went to does not operate at night. C: KNH operates 24 hours

W: I couldn’t go to Kenyatta at night. At 11 all alone.

Example 28.4(a)-(h) above demonstrates, the open WH- questions can be used to achieve the antagonistic ends that are characteristic of the cross examination phase of trial. The counsel begins with two Open WH- Questions seeking to establish the exact period of time the witness has known the two accused persons in 28.4(a)-(b). The response, by the witness, saying ‘about ten years’ leads to the conclusion by counsel that the witness must know the accused persons so well and leads to the question on their marital status. The witness’s comment that the two accused persons are chaotic leads to an Open WH- Question asking the witness to elaborate on this assertion which she does. This characterization becomes the topic for antagonism. The witness is later hard pressed to explain why she was joining women she knew were dangerous. The Open WH- Question on the kind of place the premises where fighting took place also leads to

antagonism with counsel trying to depict the witness as having been drunk herself. Even the Open WH- Question on how long the ‘fighting’ took is used by counsel to show that the witness, who is also the complainant was equally violent. This proves that in cross examination, Open WH- Questions can be used to obtain information which is later made the subject of controversy by the examiner. For instance the characterization by the witness of her assailants as ‘chaotic’ and ‘dangerous’ in response to Open WH- Questions in 28.4(a)-(b) becomes an issue the counsel relentlessly comes back to throughout his cross examination as shown in example 29.4(a)-(d) below.

Example 29.4: DS1Case06CE

(a) C: Let me come back to the bar. You said that P__ and W___ are chaotic.You have seen them fight, you have been in a fight with them before, so you knew they are dangerous women, right?

W: Yes, more than dangerous in fact. ((Laughter))

C: Yet, you had no problem joining two chaotic and dangerous women at a bar? (b) C: Yes, where you found women whom you have told us you knew to be chaotic

and dangerous, isn’t it?

W: Yes=

C: =Did you leave?

(c) C: You don’t. Yet you have told us you have known them for ten years and joined them in several fights in bars

(d) C: But the two dangerous women were not shouting or fighting, right? W: They were talking.

C: Yes, they were talking quietly until you joined them. You said when you came upstairs fighting started, right?

The questions in bold in example 28.4(a)-(b) seem innocent enough. In fact, at the onset one wonders what the lawyer hopes to gain by asking the series Open WH- Questions especially the follow up question ‘How do you know they are chaotic?’ after the witness has characterized the defendants as such. But it emerges, later, all this was calculated as having been allowed to freely give her opinions of the

defendants, the witness has given the defence lawyer information with which to put into question her actions on the night of the assault. She knew her assailants were ‘chaotic and dangerous’, yet she went where they were in the bar; she knew of their violent fights, yet she chose to sit at their table and not leave; she asserted they like getting into fights, yet when she joined them they were not fighting or screaming: fighting started when she joined them. Therefore, the initial Open WH- Questions in example 28.4(a)-(h) could have been a tactic by the lawyer to lead the adverse witness into taking a moral high ground with regard to her assailants. However, the questions and the responses given set stage for the counsel’s coup de grâce later in cross examination because by using the person targeted pragmatic strategy of contrast (cf. 5.4.1) he shows the actions of the witness during the incident as illogical, or as having been intended to provoke the defendants.

In addition, Open WH- Questions can also be used to probe the witness to give specific answers regarding time, place and people which then leads the examiner to question the truth of such assertions so precisely stated as illustrated in example 30.4(a) below.

Example 30.4: DS1Case06CE

(a) C: Very brave of you. Now what time was it? W: Around 6 p.m.

C: You told us earlier it was 6.30 p.m.? W: It was around that time.

C: Around what time? 6 or 6.30 p.m.? W: Between six and six thirty.

C: So now you want to change your testimony or you are not sure? Do you want your testimony to be read to you? Was it 6 or 6.30?

C: 6.30 p.m. So it was dark? W: It was not dark.

C: Really? How long did the whole chase take, from the time the men got into the forest until you arrested them?

W: Not long.

C: How long? Ten minutes, three hours? W: No, about ten minutes.

C: About ten minutes. Good. You said one of the men got away because it was too dark, didn’t you?

W: It was starting to get dark, but it was not yet dark. C: And you were in a forest, right?

W: It is not a forest. There some bushes.

C We started with 6.30 that changed to 6 now a forest has become some bushes. Are sure of your testimony?

(b) C: How far would you say he was from you as he threw what you call a gun? W: About ten meters

C: Ten meters. Ten meters and you saw that he is holding a gun and throwing it away?

W: Yes.

C: After he threw away the gun, how long did it take to reach the wall they couldn’t jump?

W: Not long.

C: Be specific. Another ten minutes or 4 minutes? W: About two minutes.

C: Good. You said why did you not recover the gun immediately? Because it was dark, right?

Part of the synoptic details of case 06 in data set 1, from which example 30.4(a)- (b) above is obtained, are that the witness, a police officer who arrested the defendants, has produced a toy gun before court which he has linked to the first accused person. The witness has asserted that during a chase, he saw the accused throw away the gun immediately before being arrested, but the firearm was not recovered immediately as it was too dark to see. It is this sequence of events and the reasons given for the lack of immediate recovery of the fire arm that the counsel is focusing on. The lawyer begins with a question on time ‘what time was it?’ and insists on a precise answer, which after some equivocation the witness gives as 6:30pm. This lead the lawyer to conclude it must have been dark. Next is

a question on how long the chase took and the witness estimates it to have been about 10 minutes and the next question on time makes the witness establish that from the point the accused threw away the gun, it took the witness about two minutes to reach him. And a question on distance also establishes that when the accused allegedly threw away the gun, the witness was ten meters away from him. All these Open WH- Questions demand for precision, with reference to time and distance, from the witness. These questions lay the ground work for the last question in the example which seeks to question the whole logic of this witness’s testimony. How is it that though it is at 6: 30 pm and dark the witness was able to clearly see the accused 10 meters ahead throw a gun away, but even though he got to the accused two minutes thereafter, he could now not see where the gun was thrown as it was too dark? This weakens the witness’s testimony and credibility.

4.3.0 Discussions on the Use of Various Question Types in Direct and