Beyond Words: Why Witness Examination in Japan is Also a Form of Courtroom Presentation

Witness examination in a criminal trial is often perceived as a purely logical, question-and-answer exercise focused solely on extracting factual information or exposing inconsistencies. While these are undeniably critical components, effective advocacy in modern Japanese courtrooms, particularly those operating under the saiban-in (lay judge) system, demands a broader perspective: viewing witness examination itself as a crucial form of courtroom presentation. This means that lawyers must be acutely conscious not only of what questions they ask and what answers are elicited, but also of how the entire exchange is presented to and perceived by the fact-finders—the professional judges and citizen lay judges.

The Core Principle: Examination as Persuasion, Not Just Interrogation

The ultimate objective of both direct examination (shu jinmon - 主尋問) and cross-examination (hantai jinmon - 反対尋問) is to persuade the court of the advocate's case theory. This involves more than the sterile elicitation of data; it's about shaping perceptions, building a compelling narrative (in direct examination), or deconstructing an opposing narrative (in cross-examination) through the dynamic interplay of questions and answers. Therefore, fundamental principles of effective presentation, communication, and even performance are directly applicable to how a lawyer conducts witness examination.

Rule 1: Adopt an Audience-Centric Approach (Consider the Listener's Standpoint)

The most crucial shift in mindset is to recognize that the primary audience for a witness examination is not the witness on the stand, but the judges and lay judges who are observing and evaluating.

• Focus on Fact-Finder Comprehension: Questions, witness responses, and the overall flow of the examination should be tailored to what the fact-finders need to hear and understand to make an informed and just decision. Avoid legal jargon or overly complex phrasing, especially with lay judges. If technical terms are unavoidable, they must be clearly explained.
• Avoid Lawyer-Centric "Self-Satisfaction": The examination is not an opportunity for the lawyer to showcase their own cleverness or engage in intellectual sparring for its own sake. Every element must serve the purpose of communicating effectively with and persuading the court.

Rule 2: Prioritize Clarity and Understanding (Be Conscious of Clarity)

A presentation that is not understood is a presentation that has failed. Clarity is paramount.

• Concise and Concrete Questions: Adherence to Japanese Rules of Criminal Procedure, such as Rule 199-13, Paragraph 1 (which calls for questions to be as "individual, concrete, and concise as possible"), is not just a procedural requirement but a prerequisite for clarity. Long, compound, or argumentative questions (generally improper under Rule 199-13, Paragraph 2, Item 3) confuse everyone.
• Logical Structure and Order: A well-thought-out structure for the entire examination and a logical sequence for individual questions are essential. A haphazard approach will leave the fact-finders struggling to follow the narrative or the impeachment points. (This echoes the importance of considering the examination's overall structure, as discussed in advocacy training).
• Effective Use of Visual Aids (ビジュアルエイド): Rule 199-12 of the Rules of Criminal Procedure allows for the use of diagrams, photographs, models, and other devices to clarify testimony. In a system with lay judges, visual aids are indispensable. Modern Japanese courtrooms are increasingly equipped with IT tools like document cameras, tablets, and monitors. However, advocates should be wary of over-reliance on technology if it disrupts the rhythm and flow of the examination; sometimes, simpler analog aids like large printed diagrams or physical models can be more effective and less prone to technical glitches. A crucial caution is against visual recreations by witnesses that go beyond their actual perception; such demonstrations can be powerfully misleading and should be subject to objection if they are not properly grounded in the witness's direct experience.

Rule 3: Maintain Engagement and Manage Time Effectively (退屈な尋問をしてはならない, 時間を意識せよ)

A disengaged fact-finder is an unpersuaded one. Keeping the court attentive is a key presentational skill.

• Combating Boredom: Monotony is the enemy of persuasion.
  • Pacing, Rhythm, and Variety (メリハリをつけよう - Create Light and Shade/Vary the Pace):
    • Length of Questions and Segments: Keep individual questions short and focused. The overall examination should be as concise as possible, eliminating all non-essential inquiries (無駄な尋問をするな - Don't ask useless questions).
    • Vocal Delivery: Vary the speed, volume, and tone of voice to maintain interest and emphasize key points. Strategic use of pauses and even silence can be incredibly powerful, drawing attention and allowing important points to sink in.
    • Avoid Distracting Verbal Tics (耳障りな口癖を避けよ - Avoid Jarring Verbal Habits): Common interjections like "um," "uh," or culturally specific repetitive phrases (e.g., an advocate frequently saying naruhodo - "I see," or hai, hai - "yes, yes" in response to their own witness) can be highly distracting and unprofessional. Self-recording during practice is an excellent way to identify and eliminate these tics.
• Time Consciousness: Every minute in court is precious. Lengthy, rambling examinations demonstrate a lack of preparation and disrespect for the time of the court, including the lay judges who are citizens taking time away from their daily lives. The renowned British barrister Keith Evans, for instance, strongly emphasized the importance of valuing a jury's time.

Rule 4: Master Non-Verbal Communication – The Lawyer's Demeanor (立ち居振る舞いを意識せよ)

What a lawyer says is important, but how they carry themselves can be equally, if not more, influential in shaping the court's perception of their credibility and the seriousness of their case.

• Building Ethos (Credibility and Trust): The lawyer's demeanor should project confidence (without arrogance), competence, and sincerity.
• Posture (Shisei - 姿勢): A slumped or hesitant posture can signal a lack of conviction. Conversely, an overly rigid or aggressive stance can alienate. A balanced, upright posture, with weight evenly distributed, is generally recommended. Some advocacy training suggests a "basic posture"—feet comfortably apart, back straight, hands naturally clas meninasped or resting calmly (perhaps around navel level when not gesturing)—as a stable and professional foundation.
• Eye Contact (Aikontakuto - アイコンタクト): This is fundamental for connection.
  • With the Witness: Essential for maintaining control (in cross-examination) or guiding and reassuring (in direct examination).
  • With the Fact-Finders: At appropriate moments, particularly during cross-examination when a key point is made or an inconsistency revealed, making eye contact with the judges and lay judges can help them register the significance of the exchange. Constantly looking down at notes severs this vital connection.
• Movement and Gestures (Ugoki (Jesuchā) - 動き（ジェスチャー）):
  • Avoid restless or distracting movements (fidgeting, pacing aimlessly).
  • Movements should be purposeful—for example, approaching the witness with an exhibit or moving to a different position to signal a change in topic (if courtroom layout and rules permit).
  • Use natural gestures to emphasize points, but avoid overly dramatic or theatrical gesticulations, which can appear insincere. The "basic posture" can serve as a neutral point to return to, controlling unnecessary movement.
• Overall Professionalism: A demeanor that is consistently respectful, sincere, and professional is crucial. This includes appropriate attire and grooming.

Tailoring Presentation to the Type of Examination: Direct vs. Cross

The presentational aspects differ significantly depending on whether the lawyer is conducting direct or cross-examination.

1. Direct Examination Presentation (Rules for Direct Examination)

• The Witness is the Protagonist: The lawyer acts as a facilitator, a skilled interviewer whose primary role is to help the witness tell their story clearly and effectively. The fact-finders' attention should be predominantly focused on the witness.
• Lawyer's Position and Demeanor: The lawyer should generally be less conspicuous. Standing at a slight distance from the witness stand (e.g., towards the end of the judicial bench or a designated lectern in many Japanese courtrooms) can help direct the court's visual focus towards the witness. It is critical not to obstruct the fact-finders' view of the witness, especially when handling exhibits.
• Minimize Lawyer's Movements: To keep the focus on the witness, the lawyer's own movements and gestures should be more restrained.
• Engage with the Witness: Maintain consistent, reassuring eye contact with the witness. Many witnesses will look to their counsel for guidance and affirmation.
• Let the Witness's Words Persuade: Avoid unnecessarily interjecting, echoing the witness's answers ("So, you're saying that..."), or offering excessive verbal affirmations. The power of direct examination comes from the witness's own authentic narrative.

2. Cross-Examination Presentation (Rules for Cross-Examination)

• The Lawyer Takes Center Stage: In cross-examination, the lawyer is in control, directing the witness through (typically) leading questions and deconstructing their testimony.
• Lawyer's Position and Demeanor: The lawyer should position themselves to be clearly visible to all fact-finders and to effectively maintain eye contact with both the witness and the bench/lay judges. When approaching the witness stand with an exhibit, for example, it should be done confidently, without turning one's back completely on the fact-finders for an extended period.
• Dynamic Delivery: Cross-examination often benefits from a more dynamic use of voice (volume, tone, pace), strategic pauses, and purposeful movement (if permitted and effective, such as taking a step forward to emphasize a crucial question). Gestures can be used more assertively to drive home points.
• Controlling the Narrative: The lawyer's focused presence and control over the questioning sequence are key to preventing the witness from straying or evading.
• Maintain Composure, Even in Victory: Even after a particularly successful impeachment sequence that visibly damages the witness's credibility, the lawyer should avoid any display of triumph or sarcasm. The examination should conclude calmly and professionally, allowing the impact of the testimony to speak for itself.

Conclusion: The Conscious Act of Persuasion

Recognizing witness examination as a deliberate form of courtroom presentation is a critical step towards elevating one's advocacy skills in Japan. It requires a holistic approach that seamlessly integrates strong legal analysis and precise questioning techniques with effective verbal and non-verbal communication. By remaining acutely aware of how they, their questions, and their witnesses are perceived by the judges and lay judges, and by consciously applying the principles of clear, engaging, respectful, and purposeful presentation, lawyers can significantly enhance their ability to persuade the court and achieve more favorable outcomes for their clients. The words spoken are paramount, but the way they are presented can make all the difference.