How does the Japanese approach to handling a witness's evasiveness or '言い逃れ (iinogare)' during cross-examination differ, and what are effective countermeasures?

Japanese Attorney at Law - Bengoshi L.L.

• 6 min read

One of the most frustrating yet common challenges encountered during cross-examination in any legal system is the evasive witness. This is the witness who avoids direct answers, offers excuses, deflects questions, or embarks on tangential narratives, all in an apparent attempt to escape the implications of a pointed inquiry. In Japanese, this type of behavior is often described as iinogare (言い逃れ – evasion, excuse-making, prevarication). Effectively managing such witnesses is crucial for a successful cross-examination. Japanese advocacy principles, particularly those emphasizing disciplined and strategic questioning, offer a sophisticated toolkit for neutralizing evasiveness and maintaining control of the examination.

The Problem: When Witnesses Evade and Deflect, Derailing Cross-Examination

An evasive witness can quickly derail an otherwise well-prepared cross-examination. Common tactics include:

  • Not answering the question directly: Providing an answer to a question that wasn't asked.
  • Offering unsolicited explanations or justifications: Trying to rationalize their actions or prior statements before the lawyer can develop a point.
  • Becoming argumentative or challenging the questioner: Shifting the focus from their testimony to the lawyer's conduct.
  • Feigning misunderstanding or memory loss: Selectively forgetting inconvenient facts while recalling others with clarity.
  • Giving vague, ambiguous, or overly verbose responses: Obscuring the issue with a flood of irrelevant information.

When a cross-examiner fails to manage these tactics, the consequences can be severe. Control of the narrative shifts to the witness, the intended impeachment points become blurred or lost, and the overall impact of the cross-examination is significantly diminished. The witness, in effect, "wins" the exchange by successfully frustrating the lawyer's objectives. An ineffective cross-examination might involve the lawyer getting drawn into the witness's tangential explanations, repeatedly rephrasing questions in a way that loses punch, or simply giving up on a line of inquiry due to the witness's obstinance.

Core Principle 1: Do Not Chase Every Evasion (言い逃れを追うな)

A foundational principle in countering evasiveness is: don't chase every rabbit. When a witness offers a flimsy excuse or attempts to deflect, it can be tempting for the cross-examiner to immediately challenge that specific evasion. However, pursuing every tangential statement often bogs down the examination, dignifies the witness's diversions, and can make the lawyer appear to be losing the thread of their main argument—much like a debate moderator who gets lost in a politician's deflections.

The key is to maintain an unwavering focus on the pre-determined impeachment goal. Minor evasions or irrelevant asides can often be ignored if they do not directly impede progress towards this central objective. The lawyer must exercise discipline and resist the urge to engage on every minor point the witness throws out.

Core Principle 2: Establish an Unavoidable Impeachment Goal (言い逃れができない獲得目標を探せ)

To effectively combat evasiveness, the cross-examiner must have a clearly defined and achievable impeachment objective before starting the questioning. Crucially, this objective should be rooted in matters that are difficult for the witness to evade with mere wordplay or subjective explanations. Such goals are typically grounded in:

  • Undeniable facts: Objective evidence that cannot be credibly disputed.
  • The witness's own prior statements: Particularly formal, signed statements (chosho).
  • Inherent contradictions: Logical inconsistencies within the witness's broader account or between different parts of their testimony.

For example, if a witness has given multiple, conflicting accounts of when they first observed a crucial event (as in the "A-ko" gun possession case example discussed in some Japanese advocacy materials), the impeachment goal might be to secure the witness's acknowledgment of these factual shifts in their timeline across different statements. This is a more concrete and less easily evadable goal than trying to force the witness, during that specific sequence of questions, to admit which of their conflicting versions is the absolute truth, or that they are "lying." The witness may try to explain why their accounts shifted, but the fact that they shifted can be established more robustly.

Core Principle 3: Maintain Unwavering Focus on the Goal (獲得目標から外れるな)

Once a clear, defensible impeachment goal is set, the cross-examiner must persistently and skillfully steer the questioning back to this central point, regardless of the witness's attempts to divert or obfuscate. This requires significant discipline. The lawyer must not be tempted by side arguments, red herrings, or provocative statements from the witness that are designed to shift the focus away from their vulnerabilities. Each question should be a deliberate step towards the ultimate objective.

Countermeasure 1: Recognizing Patterns of Evasion (言い逃れ（はぐらかし）のパターンを知れ)

Effective countermeasures begin with the ability to quickly recognize common evasion tactics (hagurakashi – also meaning evasion or dodging). Understanding these patterns allows the lawyer to anticipate them and not be caught off guard:

  • The Non-Responsive Answer: The witness answers a question other than the one asked.
  • The Filibuster: The witness gives an excessively long, rambling answer that contains little substantive response to the actual question.
  • The Attack: The witness challenges the question, the questioner, or the premise of the inquiry.
  • The Selective Amnesiac: The witness suddenly claims not to recall details that are inconvenient, despite having a clear memory of other, often less critical, points.

By identifying these patterns, the lawyer can choose the most appropriate counter-tactic rather than simply reacting with frustration.

Countermeasure 2: The Power of Calm Repetition (言い逃れには同じ質問を繰り返せ)

When a witness gives an evasive answer or fails to respond to the question posed, one of the most potent and widely recognized techniques is to calmly, and often verbatim, repeat the original question. This simple act can have several powerful effects:

  • Highlights Evasiveness: It makes the witness's refusal to answer directly starkly apparent to the fact-finders (judges and lay judges).
  • Signals Deterrence: It communicates to the witness that the lawyer will not be easily put off and expects a direct answer.
  • Applies Pressure: The repeated, patient inquiry often pressures the witness into eventually providing a more responsive answer, if only to end the uncomfortable cycle.

This technique must be executed with professional calm and firmness, avoiding any display of anger or frustration, which could make the lawyer appear to be losing control or bullying the witness.

Countermeasure 3: "Hitting the Bullseye" – Directly Addressing the Evasion (図星を指せ)

A more advanced, and psychologically astute, technique for dealing with a clearly and deliberately obstructive or disingenuous witness is to "zuboshi o sasu" – which translates roughly to "hitting the bullseye" or "pointing out exactly what they're doing." This involves the lawyer, again calmly and professionally, making the witness's act of evasion itself the subject of a question or comment.

This is not about arguing with the witness's substantive evasions but about exposing their method of being uncooperative. Examples, drawing from the spirit of techniques used by skilled Japanese advocates, might include:

  • "You appear to be answering a question different from the one I asked. My question was simply [restate the simple question]. Could you please address that specific point?"
  • After a long, rambling non-answer: "You've provided a great deal of information, but the core of my question was whether [X happened]. Did [X happen]?"
  • If a witness is clearly stalling for time with overly elaborate phrasing for simple concepts: "It seems you're taking a moment to carefully consider your response to that rather straightforward question. My question, once more, is [restate the question]." (Some Japanese advocacy materials illustrate even more direct, though still controlled, versions, such as, "Mr. [Witness], you are an intelligent person; offering the same excuse will merely consume time," or, "You are making various statements, and it appears you are thinking [of your next answer] in the meantime, are you not?")

The impact of this technique can be significant. By "calling out" the evasiveness, the lawyer exposes the witness's lack of candor not just about the facts of the case, but about their conduct and cooperativeness on the witness stand. This can severely damage their credibility. In some instances, as illustrated in Japanese advocacy training materials, this has led to a witness abandoning their evasiveness and even offering an apology for their lack of directness.

The Ultimate Goal: Demonstrating Unreliability to the Court

While forcing a direct admission or a concession on the substantive point is always a primary aim, successfully and clearly demonstrating to the court that a witness is consistently evasive, uncooperative, and unwilling or unable to give straightforward answers can be almost as damaging to their credibility. The fact-finders may reasonably conclude that a witness who cannot or will not answer simple questions directly is not a reliable source of information, regardless of whether the underlying "truth" of their evasive answers is definitively established during that exchange.

Cultural Considerations and Professional Demeanor in Japan

It is important to note that while these techniques are assertive and designed to control the witness, they are typically executed within a Japanese courtroom context that generally values politeness, decorum, and professionalism. Overtly aggressive, hostile, or sarcastic behavior by the lawyer is usually counterproductive and can alienate both professional and lay judges. The effectiveness of these anti-evasion strategies stems from their relentless logic, calm persistence, and the intellectual dismantling of the witness's attempts to avoid scrutiny, not from emotional outbursts or overt hostility.

Conclusion

Witness evasiveness (iinogare) poses a significant challenge to effective cross-examination. However, focused Japanese advocacy strategies, such as those embedded within frameworks like the "Diamond Rules," provide a sophisticated and disciplined toolkit for managing such witnesses. By refusing to be sidetracked by every deflection, by maintaining an unwavering focus on a clear and unavoidable impeachment goal, by recognizing common patterns of evasion, by strategically repeating questions, and, when the situation warrants, by calmly but directly addressing the evasiveness itself, lawyers can regain control of the examination. This approach not only serves to extract more truthful or direct testimony but also powerfully demonstrates the witness's lack of candor and credibility to the court, ultimately aiding the pursuit of a just resolution.