Cross-Examination Practices of the Duch Trial

Many of those observing the proceedings before the ECCC may have wondered about the most permissive cross-examination rules practiced by the Trial Chamber (‘TC’). In fact, very few restraints have been observed to what seems to have been the court and the parties’ unfettered power to cross-examine.
Before any further discussion of the matter it is salient to acknowledge that there are no spelled out restraints for cross-examination in the Internal Rules (‘IRs’) of the ECCC pertinent to the proceedings before the TC. This unfortunate omission by the drafters and the judges themselves, however, should not result in an unfettered grant to cross-examine as there are cross-examination rules which have been developed by other known jurisdictions and at the international level. Under these rules – which vary somewhat from jurisdiction to jurisdiction – parties may raise objections based upon a set of prescribed grounds. One of such grounds is leading questions. The legal community has a reasonable understanding of what constitutes a leading question, although there might not be specific grammatical structures which such a question has to fit to be objected to as a leading question (many lawyers, if asked what constitutes a leading question, will answer “you will know it is a leading question when you hear one). Ultimately, however, it is the presiding judge within whose authority it is to determine which question is leading and which is not in response to an objection raised by a party to the proceedings.
The Duch trial up to this point has been a cornucopia of unrestrained leading questions. In some cases (e.g. Chan’s testimony) lawyers raised objections to specific lines of questioning or specific questions, however, to no avail as the TC shied away from setting rules in every instance such an objection was raised.
This practice has had a negative effect on the proceedings which has yet to be evaluated. This is particularly unfortunate in Duch’s trial where the accused has been generally in agreement with the charges against him and on the whole has not denied the core of the culpability theory designed by the prosecution. As it was previously argued on this forum, under other circumstances Duch would have been either plea-bargained (in the US system) or his trial would have been cut down to the short possible period. This is not the case before the ECCC to which the search of correctness of historical record – at times at painful detail-level which is unimaginable to have any adducible evidentiary value – seems to have taken precedence to the finding out whether there is sufficient evidence to prove the accused’s guilt as charged by the prosecution. The fact that leading questions are rarely objected to and never suppressed and the prosecution’s statement which declared the possibility of prosecution of witnesses “remote” gives the witnesses in this case an incentive to simply say ‘yes’ to some of the leading questions which, as the defense very correctly noted, might have implications for the witnesses under the Joint Criminal Enterprise (‘JCE’) theory.