Why is asking "Why?" a critical mistake in Japanese cross-examination, and what questioning strategies are preferred?

In the art of courtroom advocacy, cross-examination is often lauded as the crucible where truth is tested and cases can be won or lost. Attorneys worldwide strive to master techniques that effectively challenge witness credibility and elicit favorable testimony. However, a piece of advice that resonates strongly within certain Japanese advocacy circles, particularly those advocating for a disciplined approach like the "Diamond Rules," is deceptively simple yet profoundly important: avoid asking "Why?" during cross-examination. This might seem counterintuitive to those familiar with more open-ended Western styles, but understanding the rationale behind this prohibition, and the alternative strategies favored, offers a crucial insight into effective witness examination in the Japanese legal context.

The Perils of "Why?": Ceding Control to the Witness in the Japanese Courtroom

The core reason for steering clear of "Why?" in Japanese cross-examination is the immediate and often irreversible loss of control it entails for the examining attorney. When a lawyer asks "Why did you do that?" or "Why did you say that?", they are essentially handing the witness a microphone and an open invitation to explain, justify, rationalize, or elaborate on their direct testimony. Instead of being confined to specific, targeted inquiries, the witness gains the freedom to roam, often re-emphasizing their original narrative or introducing new, self-serving details that the cross-examiner may be unprepared to rebut.

This runs contrary to a fundamental purpose of cross-examination in this school of thought: impeachment (dangai). The aim is not to allow the witness to retell their story or offer excuses, but to deconstruct their testimony, expose inconsistencies, and thereby diminish their credibility in the eyes of the fact-finders (professional judges and, in many serious criminal cases, lay judges or saiban-in). Asking "Why?" provides the witness an opportunity for benkai (excuse or explanation), which serves to solidify their position rather than undermine it. This can lead to what some Japanese practitioners refer to as "nurikabe jinmon" (literally, "wall-plastering examination"), where the cross-examination, far from chipping away at the prosecution's case, inadvertently ends up reinforcing it by allowing the witness to fill in any cracks in their initial testimony.

This principle finds echoes in Western advocacy teachings as well. For instance, Keith Evans, in his influential "The Golden Rules of Advocacy," famously cautioned against asking "Why?" for precisely these reasons—it sacrifices control and invites unpredictable, often damaging, responses. The Diamond Rules philosophy in Japan appears to have internalized this caution, adapting it to the specific nuances of the Japanese legal environment where pre-trial investigator-prepared witness statements (chosho) often play a very significant role, and a witness's ability to align their courtroom testimony with (or explain deviations from) these documents is critical.

The Psychology of Open vs. Closed Questions in Cross-Examination

The aversion to "Why?" is rooted in the fundamental psychological difference between open-ended and closed-ended (or leading) questions.

• Open-ended questions (like "Why?", "How?", "Explain...") empower the witness. They invite narrative responses, opinions, and justifications. While useful in direct examination to allow a party's own witness to tell their story, they are fraught with danger in cross-examination. The witness can introduce new facts, express emotions, or offer plausible-sounding reasons that the cross-examiner did not anticipate and cannot immediately counter.
• Closed-ended/Leading questions, by contrast, empower the questioner. These are questions that suggest the answer or limit the witness to a narrow range of responses, typically "yes," "no," or a specific factual confirmation. They allow the lawyer to maintain tight control over the information being presented to the court, to build a specific counter-narrative piece by piece, and to systematically expose weaknesses in the witness's account.

Asking "Why?" during cross-examination is akin to handing the reins of a chariot to a potentially hostile charioteer. The outcome becomes unpredictable and often unfavorable to the examiner’s case.

Preferred Strategy 1: The Dominance of Leading Questions (Closed Questions)

The antidote to the perils of "Why?" lies in the disciplined use of leading questions. In the context of Japanese cross-examination aiming for impeachment, the objective is almost exclusively to elicit "yes" or "no" answers, or very brief, undeniable factual confirmations. This strategy ensures that the lawyer, not the witness, is testifying in effect, by putting forth propositions that the witness must either affirm or deny.

Key aspects of this approach include:

• Maintaining Control: Each question is designed to advance the examiner's theory, not to solicit the witness's opinions or explanations. The lawyer dictates the subject matter and the pace.
• Building a Chain of Admissions: A series of carefully crafted leading questions can incrementally establish facts that, when pieced together, contradict the witness's main testimony or highlight its improbability. Each "yes" becomes a building block in the wall of impeachment.
• Focusing on Facts, Not Explanations: The questions should deal with observable facts, prior statements, or undeniable circumstances, rather than delving into the witness's internal motivations or justifications (which "Why?" inevitably does).
• Meticulous Preparation: Effective leading questions are not formulated on the fly. They require exhaustive preparation, a deep understanding of all available evidence (especially pre-trial statements, police reports, and any objective evidence), and a clear theory of what the cross-examination aims to achieve.

For example, instead of asking a witness who claims to have seen an event from a distance, "Why do you believe you could see clearly?", a more controlled approach would involve a series of leading questions:
* "You were standing approximately 50 meters from the incident, correct?"
* "It was raining at the time, wasn't it?"
* "There was a large vehicle parked between your position and the incident, correct?"
* "You did not have an unobstructed view, did you?"

Each affirmative answer to these questions paints a picture of doubt about the witness's ability to see clearly, without ever asking for their (potentially self-serving) explanation.

Preferred Strategy 2: "Setting the Stage" and "Pinning Down" the Witness (Tame o Tsukuru / Commit & Credit)

A critical component of effective impeachment, particularly when dealing with prior inconsistent statements, is the process of "setting the stage" or, as sometimes referred to in Japanese advocacy discussions, "tame o tsukuru" (creating a build-up or laying the groundwork). This involves meticulously "pinning down" the witness before confronting them with a contradiction, a concept aligned with the "Commit" and "Credit" phases of the NITA (National Institute for Trial Advocacy) 3C's impeachment model (Commit, Credit, Confront).

This preparatory phase involves:

1. Committing the Witness to their Current Testimony: First, the lawyer clearly and unequivocally commits the witness to the specific portion of their live, in-court testimony that will be challenged. This is often done by having the witness repeat or affirm the particular assertion. For example: "Ms. Tanaka, you testified a moment ago that the light was green, is that correct?"
2. Crediting the Prior Statement/Circumstance: Next, before introducing the contradictory prior statement or evidence, the lawyer builds up the credibility or significance of that prior occasion. This "credit" phase aims to make it difficult for the witness to later dismiss the prior statement as unimportant, misunderstood, or inaccurate. This might involve questions such as:
   • "Do you recall speaking to Detective Sato on January 15th, the day after the incident?"
   • "That was when the events were freshest in your mind, correct?"
   • "You understood it was important to tell Detective Sato the truth, didn't you?"
   • "And you did, in fact, aim to tell him the truth?"
   • "After you provided your account, Detective Sato prepared a written statement, did he not?"
   • "He read it back to you, didn't he?" (Or, "You were given an opportunity to read it?")
   • "And you signed it, confirming its accuracy, correct?"

A crucial caveat in the Japanese context, especially when dealing with investigator-prepared statements (chosho), is that this "crediting" phase must be handled with extreme care. If not done skillfully, particularly with a prosecutor's statement (kensatsukan chosho), there's a risk that the lawyer might inadvertently bolster the statement's tokushin jōkyō (special circumstances assuring its credibility for evidentiary purposes), rather than setting it up for impeachment. The focus is on the witness's actions and affirmations at the time the prior statement was made, not necessarily on the inherent truthfulness of its contents as viewed by the court yet.

The overall goal of these preparatory steps is to metaphorically close all escape routes for the witness, so that when the contradiction is finally presented, its impact is maximized.

Preferred Strategy 3: The Confrontation – Revealing the Contradiction

Only after the witness is firmly committed to their current testimony and the circumstances surrounding the prior inconsistent statement have been properly "credited" does the lawyer proceed to the "Confront" phase. This is where the actual contradiction is unveiled.

The confrontation should be:

• Clear and Unambiguous: The inconsistency should be presented in a way that is easy for the fact-finders to understand.
• Direct (in terms of content): While the question itself will likely remain a leading one, it directly points to the contradictory element.
• Impactful: The groundwork laid should make the contradiction appear significant.

For example, continuing the scenario above:
* "Ms. Tanaka, I am now showing you what has been marked as Defense Exhibit A. This is the statement you signed for Detective Sato on January 15th, is it not?" (Witness confirms signature).
* "Please look at page 2, line 5. Doesn't it state there, in the statement you signed as accurate on the day after the incident, 'The traffic light was red'?"

The witness is now faced with a direct contradiction, having already affirmed their current testimony and the care with which the prior statement was made and adopted.

Preferred Strategy 4: The Art of Silence and Avoiding the "Extra Push"

Once a significant contradiction has been exposed, one of the most powerful tools an advocate possesses is restraint. There is often a strong temptation to press the advantage, perhaps by asking, "So, Ms. Tanaka, were you lying then, or are you lying now?" or even a triumphant "Why the difference, Ms. Tanaka?"

However, skilled practitioners adhering to a disciplined approach often advocate against this "extra push" (dame oshi). Asking such questions, especially "Why?", reopens the door for the witness to offer explanations, excuses, or claims of misrecollection, potentially diluting the impact of the impeachment. The contradiction, once clearly established, can often speak more powerfully for itself. The lawyer can then use this established inconsistency to devastating effect in their closing argument.

The goal is to leave the contradiction hanging in the air, stark and unresolved by the witness, for the fact-finders to ponder. The damage to credibility is done by the inconsistency itself, not necessarily by the witness's fumbling attempt to explain it away when prompted by a "Why?".

Nuances and Limited Exceptions: The "Why?" Debate

Is the prohibition on "Why?" absolute? Discussions among Japanese legal practitioners, such as those within the Diamond Rules Study Group, have acknowledged certain nuanced situations. One hypothetical scenario debated is when a witness is so thoroughly cornered, with all escape routes cut off, that asking "Why?" might elicit dramatic silence or a complete breakdown, further emphasizing their lack of credibility. However, the prevailing view seems to be that if the groundwork (the "tame") has been laid so perfectly, the "Why?" question becomes unnecessary; the witness's predicament is already evident. Furthermore, relying on such a high-stakes, potentially unpredictable outcome is generally seen as less disciplined than sticking to controlled questioning.

Another point sometimes raised is that in the Japanese system, if the lawyer doesn't ask "Why?" a judge or lay judge might. Some argue this makes asking "Why?" defensively necessary. However, a strong counter-argument is that if the cross-examination has been effective in exposing contradictions through proper technique, the need for anyone to ask "Why?" should be minimized, as the reasons for the witness's unreliability become inferable from the facts established.

Ultimately, while these debates acknowledge theoretical edge cases, the overwhelming practical advice remains: treat "Why?" as a taboo in cross-examination to maintain control and achieve precise impeachment.

Conclusion

In the framework of Japanese cross-examination that prioritizes control and strategic impeachment, asking "Why?" is viewed not as a tool for uncovering truth, but as a critical error that cedes control to the witness and invites damaging, unpredictable testimony. The preferred strategies—relying on precise leading questions, meticulously setting the stage by committing the witness and crediting the circumstances of prior statements, directly confronting with established inconsistencies, and then exercising restraint—are all designed to allow the advocate to systematically deconstruct an adverse witness's testimony while maintaining firm control over the narrative presented to the court. This disciplined approach, while demanding rigorous preparation, is considered essential for effectively navigating the complexities of the Japanese criminal trial.