Brevity and Focus in Japanese Cross-Examination: Why 'Shorter is Better' and 'Don't Push the Point' (Dame wa Osu na) are Key Principles

The image of a dramatic, sprawling cross-examination, beloved in fiction, often contrasts sharply with the reality of effective courtroom advocacy, particularly within the disciplined framework emphasized in Japanese legal practice. Two intertwined principles stand out for their contribution to impactful cross-examination: an overall commitment to brevity, both in the length of the examination and individual questions, and the crucial art of knowing when to stop—encapsulated by the Japanese maxim Dame wa osu na (ダメは押すな), meaning "Don't push for the extra point" or "Don't press your luck." Mastering these tenets is vital for maintaining clarity, control, and persuasive power before Japanese courts, especially those involving lay judges (saiban-in).

The Case for Brevity in Cross-Examination: "Short! Short!" (短く！短く！)

Lengthy, rambling questions or an overly long cross-examination can be counterproductive, regardless of jurisdiction. However, the emphasis on conciseness in Japanese advocacy stems from a deep understanding of how fact-finders process information and how courtroom dynamics unfold.

1. Why Shorter Individual Questions? (できるだけ短く問え)

The structure of individual questions is the microscopic level where brevity begins.

• Clarity and Comprehension: Long, convoluted, or compound questions are difficult for anyone to follow – the witness, the professional judges, and especially lay judges who are new to the courtroom environment. Japanese Criminal Procedure Rule 199-13, Paragraph 1, underscores this by stipulating that questions should be "as individual, concrete, and concise as possible". A cross-examination, though an indirect form of communication with the court (mediated through the witness), is fundamentally a presentation; its efficacy hinges on being understood.
• Maintaining Focus and Control: Short questions keep the examination tightly focused on specific factual points. The "one fact per question" rule is a guiding principle: break down complex inquiries into a series of simple, declarative leading questions, each targeting a single, digestible piece of information.
• Eliciting Facts, Not Arguments: Questions should aim to elicit factual admissions or confirmations, not to draw the witness into an argument over interpretations, opinions, or evaluations. Long questions often inadvertently invite such unproductive exchanges.

2. Why a Shorter Overall Examination? (できるだけ短く終えよ)

The principle of brevity extends to the entire duration of the cross-examination.

• Attention Spans and Persuasive Impact: Fact-finders, particularly lay judges participating in often lengthy trials, have finite attention spans. A drawn-out, meandering cross-examination risks losing their engagement, diluting the impact of any strong points made, and breeding impatience. Time is a precious commodity for everyone in the courtroom.
• Strategic Purpose of Cross-Examination: The primary goal of cross-examination is not to rehash every detail of the direct testimony or to engage in a comprehensive exploration of all related facts. Its purpose is more targeted: to impeach the witness's credibility on key damaging points, to elicit crucial concessions that support the defense's case theory, or to highlight inconsistencies. Attempting to cover too much ground often results in merely reinforcing the direct examination, a phenomenon sometimes described as nurikabe jinmon (wall-plastering examination).
• Targeted Impeachment: Effective impeachment typically focuses on a few well-chosen, significant vulnerabilities in the witness's testimony rather than a scattergun approach hoping something sticks. This inherently lends itself to a more focused and, therefore, often shorter examination.
• The Strategic Value of "No Cross-Examination": There are times when the most effective cross-examination is no cross-examination at all. If the witness's direct testimony has not significantly harmed the defense case, or if the witness is demonstrably unshakeable on points critical to the prosecution but peripheral or unassailable by the defense, a lengthy, fruitless cross-examination can do more harm than good.
• Eliminating Useless Questions (無駄な尋問をするな): Every question posed must have a clear purpose that directly contributes to the overall case theory and the specific impeachment goals for that witness. Extraneous or purposeless questions waste time and diminish focus.

The Peril of the "Extra Push": (Don't Press Your Luck!)

Perhaps one of the most difficult acts of self-discipline for a cross-examiner is to stop questioning once a critical point has been made or an inconsistency clearly revealed. The temptation to ask "one more question" to drive the point home, to elicit a confession of error, or to rhetorically flourish is immense – described in some Japanese advocacy materials as a "devil's whisper" (悪魔のささやき). This is where the principle of dame wa osu na becomes paramount.

1. The Alluring Temptation of the "Finishing Blow"

When a cross-examination appears to be going well, and a witness has been caught in a contradiction or forced into a significant admission, the natural human impulse is to want to solidify that victory, to leave no doubt in the minds of the fact-finders. This often manifests as asking a conclusive, summary-type question.

2. Why This "Extra Question" is Fraught with Danger

Despite the temptation, this "extra push" is often where a well-executed cross-examination can unravel:

• Opening the Door for Explanations: The "extra" question is frequently evaluative, conclusory, or argumentative (e.g., "So, it’s clear you couldn’t actually have seen the incident, isn't it?"). Such questions are no longer seeking factual admissions but are inviting the witness to agree with the lawyer's conclusion. This provides a golden opportunity for the witness to offer excuses, justifications, re-interpretations, or claims of misrecollection that can neutralize the impeachment or confuse the issue. Witnesses, especially when feeling cornered, will naturally seize any chance to defend their credibility or testimony.
• Loss of Control: By asking an open-ended or argumentative conclusive question, the lawyer cedes control of the narrative back to the witness.
• Dilution of Impact: A sharp, clean impeachment point, left to stand on its own, can be far more powerful than one that is followed by a messy exchange where the witness attempts to explain it away.
• Appearing Argumentative: The lawyer might be perceived as arguing with the witness, rather than skillfully eliciting facts, which can be off-putting to judges and lay judges.

The Art of Sun Dome (Stopping Just Short): Effective Alternatives to the "Extra Push"

Instead of succumbing to the dame oshi temptation, effective Japanese advocacy emphasizes the technique of sun dome seyo (寸止めせよ) – stopping just short of asking that ultimate, conclusive question. The impeachment is achieved by other means:

1. Accumulate Contradictory Peripheral Facts (矛盾する周辺事実を積み重ねよう！):
   As discussed in other contexts, rather than directly asking the ultimate question of credibility or perception (e.g., "So you didn't really hear it, did you?" ), the preferred method is to build a compelling circumstantial case. The lawyer uses a series of controlled, leading questions to establish undeniable peripheral facts. When these facts are accumulated, they collectively render the witness's core testimony untenable or highly improbable.
   • For example, to challenge a witness's claim of having heard a specific phrase from 20 meters away amidst a noisy environment: The cross-examiner would establish the distance, the presence of an intervening crowd, the noise from other nearby conversations (which the witness perhaps admits they couldn't discern), and ambient noise like highway traffic. Having established these objective impediments, the examination stops. The inference that the witness likely didn't hear the specific phrase is left for the fact-finders to draw.
2. Let the Implication Hang Powerfully in the Air:
   Once the foundational facts for impeachment are clearly laid out through this method of accumulating factual bricks, the contradiction, improbability, or impossibility of the witness's assertion often becomes self-evident. The advocate trusts the intelligence of the judges and lay judges to connect the dots and draw the logical conclusion.
3. Reserve Conclusions for Closing Arguments (弁論に委ねるべき):
   The cross-examination is primarily for eliciting facts, admissions, and creating doubt by exposing inconsistencies. The explicit argument about what these elicited facts mean for the witness's credibility and for the overall case is best reserved for the closing statement (benron). During closing, the advocate can weave together all the threads of impeachment from various witnesses, without interruption or rebuttal from the witness stand, to present a cohesive argument to the fact-finders.

Consider the example of an eyewitness who claims to have seen the defendant strike a victim with their left hand. If the cross-examiner, through a series of precise questions about positioning and lines of sight, establishes that from the witness's vantage point, the defendant's left hand would have been obscured by the victim's body or the defendant's own body, the point is made. Asking the follow-up "So, you couldn't have actually seen the left hand strike, could you?" invites the witness to say, "Well, I saw a movement that looked like it," or some other explanation. The more effective approach is to establish the visual impossibility and then stop, letting the inescapable conclusion resonate.

Conclusion: Precision, Brevity, and Strategic Silence

In the demanding environment of Japanese criminal cross-examination, effectiveness is often found not in protracted battles of wits, but in surgical precision, disciplined brevity, and strategic restraint. Asking short, focused, factual questions maintains clarity and ensures the advocate retains control. Keeping the overall examination concise respects the court’s time and the attention span of the fact-finders, thereby preserving the impact of key points.

Crucially, the principle of dame wa osu na—resisting the urge to push for that one conclusive, often argumentative, final question—is vital. It prevents agile witnesses from wriggling off the hook and undoing carefully constructed impeachment. By mastering the art of sun dome (stopping just short) and allowing the weight of well-established, contradictory facts to speak for themselves, advocates can more powerfully undermine witness credibility. The ultimate synthesis and interpretation of these impeaching facts are then powerfully presented in the closing argument, where the advocate, not the witness, has the final word on their significance. These principles are fundamental to skilled advocacy in Japan.