Ethical Duties of a Trial Advocate to the Witnesses

In the realm of legal advocacy, a thorough investigation and meticulous organization of facts are

imperative. An advocate, in the pursuit of this, is rightfully granted the authority to interview any

person, as witnesses do not align themselves with any specific party. The advocate's duties

towards witnesses are multifaceted, encompassing ethical considerations and professional

conduct. These duties include:

Duty of courtesy

As a general rule trial lawyers should, as far as possible, be courteous to witnesses at all times.In

S v Azo 1974 (I) SA 808 (T),1 Justice Snyman emphasized the importance of treating witnesses

with courtesy and respect, highlighting their public duty in appearing in court. Establishing a

polite and cooperative relationship with witnesses is deemed essential for effective information

gathering. An argumentative attitude is discouraged, as it is likely to hinder information flow and

irritate the court. Examples of courtesy include promptly informing witnesses about hearing

dates, providing full case details to ensure accurate testimony, refraining from indecent

questions, and avoiding unfair or abusive conduct towards witnesses or litigants. The court has

discretionary powers to restrain inappropriate questions, acknowledging the delicate balance

1
S v Azo 1974 (I) SA 808 (T)
between obtaining relevant information and maintaining a respectful legal environment, as

outlined in sections 159-160 of the Evidence Act.2

Duty not to harass or badger witnesses

Trial lawyers should refrain from harassing, badgering or bullying witnesses. Not only is such

conduct unlikely to ensure co-operation from the witness, but it is also likely to irritate the court.

Few witnesses are likely to be badgered into making admissions they do not want to make. It is

better to expose inconsistencies in a witness’s evidence through polite, carefully structured

questioning, and to draw attention to the results in argument and through well-written

submissions.3

Duty during cross-examination not to make unsubstantiated attacks on the character of a

witness

Questions challenging the credibility of a witness by attacking their character, if not relevant to

the inquiry, should be avoided unless counsel possesses reasonable grounds to believe that the

imputations conveyed are well founded or true. It is the duty of counsel to prevent becoming a

conduit for questions intended solely to insult or annoy the witness or any other party, exercising

judgment on both substance and form. This duty extends to all trial lawyers. Importantly,

2
Evidence Act (2012), s159-160
3
‘ATP 104: TRIAL ADVOCACY (DETAILED) LAW NOTES – Legal Insights and Trends In Kenya’ (14
February 2024) <https://insights.advocates.ke/atp-104-trial-advocacy-detailed-law-notes/> accessed 14 February
2024.
advocates must refrain from badgering witnesses with unreasonable questions and should

approach questioning with tact and gentleness.

Duty during cross-examination to keep defamatory statements within qualified privilege

It is asserted that posing questions solely to insult or annoy a witness is unethical and an abuse of

the court process. As stated by Snyman J in S v Azo 1974 (I) SA 808 (T),4 no cross-examiner is

entitled to mistreat a witness without a valid reason. In defense against defamation actions

arising from cross-examination, a trial lawyer's qualified privilege extends only to statements

pertinent to the issue and with a foundation in evidence or trial circumstances

Duty not to wantonly or recklessly accuse the witness of a crime

An advocate should appreciate that the witness is not on trial. Therefore, when undertaking

cross-examination, s/he should exhibit professionalism. The witness should thus be allowed to

undertake their civic duty without perceiving to be on trial.5

Duty to consult with one‘s own witness before trial

Trial lawyers have a duty to engage in pre-trial consultations with their witnesses, emphasizing

preparation rather than instructing or "schooling." This preparation aims to familiarize witnesses

with the challenges of testifying in court. It includes explaining the procedural aspects of

4
S v Azo 1974 (I) SA 808 (T)
5
‘TRIAL ADVOCACY LAW NOTES – Legal Insights and Trends In Kenya’ (14 February 2024)
<https://insights.advocates.ke/trial-advocacy-law-notes/> accessed 14 February 2024.
evidence-in-chief, cross-examination, and re-examination, as well as providing guidance on

courtroom attire and address. The lawyer's role extends to guiding witnesses through the

evidence without rehearsals. Morris (1993) suggests a permissible approach for cross-

examination preparation, advising witnesses to listen carefully to questions, admit when

understanding is lacking, refrain from guessing, and respond directly and succinctly without

making extensive speeches. 6

Duty not to Induce Witnesses

Advocates must refrain from suggesting or inducing witnesses to suppress evidence or deviate

from the truth. However, they are permitted to inform witnesses that they are not obliged to

undergo an interview or respond to questions from opposing counsel unless compelled by legal

or judicial processes. Advocates should not withhold evidence that carries a legal obligation to

be revealed or produced, nor should they advise individuals to conceal themselves or leave the

tribunal's jurisdiction to avoid becoming witnesses.

Bibliography

Case Laws

6
Daniels, H. "Morris technique in litigation." (1993).
 1. Daniels, H. "Morris technique in litigation." (1993).

2. S v Azo 1974 (I) SA 808 (T)

Primary Sources

3. The Evidence Act (2012)

Secondary Sources

1. TRIAL ADVOCACY LAW NOTES – Legal Insights and Trends In Kenya’ (14 February
2024) <https://insights.advocates.ke/trial-advocacy-law-notes/> accessed 14 February
2024.