VZCZCXRO6839
RR RUEHLN RUEHVK RUEHYG
DE RUEHSI #0900/01 1511021
ZNR UUUUU ZZH
R 301021Z MAY 08
FM AMEMBASSY TBILISI
TO RUEHC/SECSTATE WASHDC 9515
INFO RUEAWJA/DEPT OF JUSTICE WASHINGTON DC
RUCNCIS/CIS COLLECTIVE

UNCLAS SECTION 01 OF 04 TBILISI 000900 
 
SIPDIS 
 
STATE FOR INL, EUR/ACE, EUR/CARC 
DOJ FOR OPDAT (LEHMANN/NEWCOMBE) 
 
E.O.  12958: N/A 
TAGS: SNAR PGOV KCRM KJUS GG
SUBJECT: EPISODE III - - THE DEFENSE BAR STRIKES BACK 
 
REFS:  A) 07 TBILISI 1530, B) 07 TBILISI 2576 
 
¶1. Summary: In 2007, the U.S. Department of Justice's Office of 
Overseas Prosecutorial Development, Assistance and Training 
(DOJ/OPDAT) and the Government of Georgia (GOG) conducted a series 
of in-court trial advocacy skills workshops using what will soon be 
Georgia's new Criminal Procedure Code (CPC) for a cadre of 30 
prosecutor trainers from throughout Georgia.  These prosecutors 
routinely defeated American Bar Association/Rule of Law Initiative 
(ABA/ROLI) trained defense lawyers in mock jury trials held in 
Tbilisi, Georgia.  After conducting mock trials in Tbilisi, the 
cadre of trainers taught the advocacy skills to more than 600 of 
their prosecutorial colleagues.  In 2008, DOJ/OPDAT and the GOG's 
Office of Public Prosecution Service (OPP) embarked upon a year-long 
effort to visit each region, buttress the cadre's teaching efforts, 
respond to questions, and, in connection with ABA/ROLI trained 
defense lawyers, provide the prosecutors with an opportunity to 
practice their skills in live mock jury trials.  Initially, the 
regional defense bar uniformly defeated the regional prosecutors. 
The prosQtors lost, in total, ten mock jury trials in the Gori and 
Mtskheta regions. The prosecutors demonstrated theoretical knowledge 
of the trial advocacy principles, but could not translate this 
knowledge into practice to secure convictions.  This created a 
general sense of frustration among the prosecutors and growing 
concern in the OPP where key individuals voiced concern that the 
prosecutors would not be able to convict individuals using the new 
CPC.  Recently, however, the prosecutors have demonstrated a renewed 
commitment to learning these new and challenging trial advocacy 
skills.  This renewed commitment has resulted in successful 
convictions in six of ten mock trials held in the Rustavi and 
Akhaltsikhe regions. These convictions have restored the 
prosecutors' confidence in their trial skills and their willingness 
to accept the changes to the criminal procedure process that the new 
CPC will bring.  End Summary. 
 
-------------------------------- 
Do, or Do Not.  There is No Try. 
-------------------------------- 
 
¶2. In order to gauge the prosecutor trainers' success in teaching 
trial advocacy skills to their colleagues, DOJ/OPDAT and the OPP 
scheduled a series of regional trial advocacy seminars.  The 
regional prosecutors readily admitted that their local trainers 
taught them the basic trial advocacy skills.  In general, the 
prosecutors knew how to do opening statements and closing arguments. 
 They also understood, broadly, how to conduct direct and cross 
examinations.  However, they struggled with specific examination 
issues. 
 
¶3. For example, they had difficulty using the head note technique in 
direct examination.  The head note technique highlights the area in 
which the prosecutor wants to inquire.  For example, in a case 
involving a white BMW, the prosecutor would simply say, "Let's talk 
about the white BMW that you saw."  The head note gives both the 
witness and the jury a roadmap for the scope of questions the 
prosecutor intends to ask. 
 
¶4. Likewise, they struggled with using cross examination to cull 
from the witness facts to buttress their closing argument.  Cross 
examination succeeds where a prosecutor obtains admissions from a 
witness to support a closing argument.  If a prosecutor wants to 
argue that the witness's testimony is biased because he and the 
defendant are friends, the prosecutor needs the witness to admit 
that he and the defendant have known each other for twenty years. 
If the defendant and witness have, in fact, known each other for 
twenty years, this is a fact that the witness cannot deny.  In the 
closing argument, the prosecutor can use this admitted fact to 
demonstrate the witness's bias.  However, where the prosecutor asks 
the witness to characterize his relationship with the defendant, the 
witness will rarely admit the friendship.  Instead, she will simply 
claim that she and the defendant are associates.  By failing to 
obtain the factual admission, the prosecutor removes from his quiver 
the "bias" argument because the witness has already characterized 
the relationship for the jury.  As a result of these challenges, the 
prosecutors became frustrated and began to lose faith in their 
ability to successfully conduct cross examination. 
 
--------------------------------------------- -------- 
Lost a Planet, Master Obi-Wan Has.  How Embarrassing. 
--------------------------------------------- -------- 
 
¶5.  Despite these problems, the prosecutors persevered and 
participated in five mock jury trials in Gori and Mtskheta - - a 
total of ten trials - - but lost each one.  The juries and judges 
routinely said that the prosecutors were more proficient at 
presenting their cases, but failed to present sufficient evidence to 
convict the defendants.  In other words, both the judges and the 
juries believed that the prosecutors knew the trial advocacy skills 
better, but simply did not properly use them to identify the 
 
TBILISI 00000900  002 OF 004 
 
 
testimony or the objective evidence that the jury needed to convict 
the defendant.  Consequently, the jurors concluded that, based on 
the presumption of innocence and the absence of evidence to prove 
the defendant guilty beyond a reasonable doubt, they must acquit the 
defendant. 
 
¶6.  These successive losses shook the prosecution.  They were 
embarrassed because they are not used to losing.  Under the current 
soviet-style inquisitorial trial process, prosecutors routinely 
convict individuals.  The prosecutors grew concerned that 
notwithstanding the comments by the juries and judges, they would 
not be as successful under the Western-style, adversarial system 
that the CPC embodies.  They began to complain that the new CPC put 
them at a competitive disadvantage and many voiced concern that the 
new CPC would allow guilty people to go free even though the 
prosecutors gave their best effort.  In fact, the OPP's Deputy Chief 
of Administration expressed concern that the prosecutors could not 
learn the necessary skills before the CPC would be enacted.  She was 
concerned that Georgian society would be victimized by criminals 
that the new system allowed to go free because the prosecutors had 
not mastered their skills.  She inquired into whether additional 
practice might be necessary in order for the prosecutors to learn 
the skills in a timely manner.  Looking at the previous year's 
training seminar and the anticipated time remaining, she inquired 
into whether the prosecutors should convene special monthly meetings 
among themselves to practice the necessary skills. 
 
---------------------------- 
Train Yourself to Let Go of 
Everything You Fear to Lose. 
---------------------------- 
 
¶7.  Based on the prosecutors' string of losses, DOJ/OPDAT and the 
OPP examined the training material.  Moreover, DOJ/OPDAT and 
ABA/ROLI examined the problem to determine if it was too biased in 
the defendant's favor or provided the prosecutors with too little 
evidence to prove the defendant guilty beyond a reasonable doubt. 
Finally, the OPP discussed with the prosecutors the need to focus on 
learning the material and understanding how to use the adversarial 
skills to establish evidence satisfying their burden of proof beyond 
a reasonable doubt to successfully convict individuals.  The OPP 
emphasized that simply understanding the material in theory would 
not help them use the skills to convict defendants.  Instead, they 
needed to learn how to practically use the material and ask better 
questions to gain a better understanding of the adversarial skills. 
Based on these efforts, the prosecutors renewed their commitment to 
learning the trial advocacy skills. 
 
¶8. The prosecutors concentrated on improving their opening statement 
and closing argument skills.  In opening statement practice, they 
concentrated on identifying a case theme that provided the moral 
support for convicting a defendant.  Additionally, they noted key 
witness testimony and objective evidence the jury should anticipate 
hearing during the trial.  In other words, they "connected the dots" 
of evidence for the jury in the opening statement.  They described 
how a key witness observed a vehicle with unique damage that the 
police officer later learned was the defendant's vehicle.  They 
began to characterize defense witnesses in the opening statement so 
that the jury began to form an opinion of the witness prior to his 
or her testimony.  Similarly, they honed their closing argument 
skills.  They highlighted the evidence adduced during the trial to 
prove to the finder of fact, whether it be judge or jury, that the 
defendant is guilty of the charged crimes.  Rather than simply 
appealing to the jury's emotions, they concluded for the jury that 
witness testimony and objective evidence - - such as a gun or a 
damaged vehicle - - pointed to the defendant's guilt beyond a 
reasonable doubt.  Finally, they used the absence of a logical 
explanation on the defendant's part to argue that he must be guilty 
of the charged crime. 
 
¶9. The prosecutors also focused on improving their direct 
examination skills.  They practiced using head notes to highlight 
for the judge, jury, and witness the area in which the prosecutor 
intended to inquire.  This improved the witness's ability to focus 
on the questions and give precise answers to the prosecutor's 
questions.  In practice seminars before the Rustavi and Akhaltsikhe 
trials, the prosecutors learned from each other the importance of 
head notes.  By using head notes, they could randomly question their 
colleagues and receive logical answers to their questions because 
the witness, without practicing with the prosecutor, knew the topic 
the prosecutor wanted to discuss.  Additionally, they incorporated 
loop back questions into their arsenal.  Loop back questions 
incorporate a witness's answer into a subsequent question.  If a 
witness admits that he saw a white BMW, the loop back technique 
instructs the prosecutor to asking questions such as where did you 
see the white BMW?  Who entered the white BMW, or how did the white 
BMW leave the scene.  Using this technique, the prosecutors 
emphasize for the judge and/or the jury the white BMW's importance 
in the crime.  This focuses the jury on the key point of the 
 
TBILISI 00000900  003 OF 004 
 
 
witness's testimony so that they remember this testimony when a 
later witness further describes the white BMW's significance in the 
crime. 
 
¶10.  Finally, the prosecutors also improved their cross examination 
technique.  In the first series of seminars, the prosecutors assumed 
that they understood how to employ the cross examination technique. 
In the seminars before the Rustavi and Akhaltsikhe mock jury trials, 
however, the prosecutors questioned their own understanding of this 
skill.  They worked to understand the logic supporting the cross 
examination technique.  In order to avoid engaging in argument with 
the witness, the prosecutors identified a three step process for 
conducting cross examination.  First, they identified a theme for 
each defense witness.  They determined that they would argue the 
witness's testimony was unreliable for one of five reasons, e.g., 
bias, inconsistent facts, inconsistent statements, memory or 
perception problems, or a history of lying.  Second, based on this 
theme, they developed arguments for the witness.  If they concluded 
that facts inconsistent with the witness's testimony rendered the 
testimony unreliable, they identified the argument they wanted to 
make in closing that supported this theme and ideQified the facts 
that supported it.  Having identified the necessary facts, the 
prosecutors then focused on using the cross examination technique to 
ask questions that culled factual admissions from the defendant that 
the prosecutors used in their closing argument to support their 
witness theme.  By developing this three-prong approach, the 
prosecutors avoided engaging in argument with the witness.  Instead, 
the prosecutors learned to save the argument for their closing when 
the witness was unavailable to contradict them.  During cross 
examination, they simply obtained the factual admissions necessary 
to support their closing arguments. 
 
¶11.  The prosecutors also tackled specialized cross examination 
techniques such as cross examining an individual for inconsistent 
statements.  A witness makes an inconsistent or incomplete statement 
when he testifies differently from a statement previously given to 
the police or other individual.  The inconsistent cross examination 
technique consists of three parts.  First, the prosecutor forces the 
witness to commit to the inconsistency he made during direct 
examination.  Second, he builds up the witness's previous statement. 
 For example, the witness will admit that he previously spoke with 
the police, he told the police the truth, the importance of telling 
the truth, and that the previous statement was closer to the event 
than is the witness's testimony at trial.  Finally, the prosecutor 
confronts the witness with his prior inconsistent statement. 
However, the prosecutor never asks the witness for an explanation. 
Instead, if the witness wants to explain the apparent inconsistency, 
the witness must do so on re-direct examination.  This explanation 
typically looks very weak in light of the cross examination.  The 
prosecutors found the possibility of an explanation during re-direct 
examination troublesome because they believed that it would ruin 
their cross examination.  After much discussion, however, they 
agreed to try the technique notwithstanding their concerns. 
 
------------------------------------- 
Strong is the Defense Bar.  Mind What 
You Have Learned. Save You It Can. 
------------------------------------- 
 
¶12. The prosecutors demonstrate their renewed commitment to 
adversarial trial skills in the mock jury trials against members of 
the ABA/ROLI trained defense bar in six mock jury trials held in 
Rustavi.  In four of these six trials, the jury convicted the 
defendant.  After the trials, the prosecutors pleasantly listened to 
the juries and the judges repeat to the criminal bar the same 
arguments for conviction that the prosecutors had made.  The juries 
concluded that certain witness's testimony could not be believed 
because the witness was biased.  Furthermore, they did not trust the 
witness's explanation for an apparent inconsistency because the 
facts did not support the witness's explanation.  Finally, the 
jurors pointed to specific pieces of evidence that the prosecutors 
identified as damning as the reason for convicting the defendant. 
The defense bar, aware of their unmitigated successes in previous 
trials, became angry and confused.  In one instance, a judge - - in 
a practice trial - - ordered the court bailiff to physically remove 
a defense lawyer from the courtroom because he was becoming so angry 
and threatened violence. 
 
¶13. The prosecutors' success continued in Akhaltsikhe.  In four mock 
jury trials, the prosecutors convicted two defendants.  Again, in 
those cases in which the prosecution successfully convicted the 
defendant, the jury repeated back to the prosecutors the same 
arguments and themes that they stressed throughout the case.  In 
those cases in which the prosecutors successfully convicted the 
defendant, the jurors identified the same evidence to support their 
conviction that the prosecutors argued proved that the defendant was 
guilty.  Moreover, the jurors also agreed with the prosecutors' 
witness themes.  They repeated the witness characterizations back to 
the prosecutors.  For example, they also chose not to believe a 
 
TBILISI 00000900  004 OF 004 
 
 
defense witness because he was biased.  Likewise, they concluded 
that inconsistent facts undermined the alibi witness's testimony. 
In short, the prosecutors successfully used their adversarial skills 
to convince the jury that the evidence proved that the defendant was 
guilty and that the defense witness's and evidence did not undermine 
this conclusion. 
 
¶14. This success does not mean that the prosecutors have concluded 
that additional practice is unnecessary.  They still struggle with 
cross examining a witness based on inconsistent statements. 
Contrary to the three-step formula, they want to ask the witness to 
explain the apparent inconsistency.  Each time, the witness 
dutifully gives them an explanation that undermines an otherwise 
successful cross examination.  Moreover, the prosecutors themselves 
recognize that they need additional practice.  After the Rustavi 
mock jury trials, the judges, prosecutors, and defense attorneys 
asked DOJ/OPDAT and ABA/ROLI to prepare monthly mock trial problems. 
 They agreed to organize and conduct monthly mock trials among 
themselves with these practice problems. 
 
-------------------------- 
May The Force Be With You. 
-------------------------- 
 
¶15. Comment:  The mock jury trials have generated excitement for the 
CPC's passage.  Both defense bar and prosecution representatives 
have suggested that they would prefer to pass the CPC as currently 
drafted rather than continuing with the current Criminal Procedure 
Code.  The defense bar and the prosecution's success in the mock 
jury trials demonstrate to Georgian legal professionals that they 
can try cases using an adversarial process.  This demonstrable proof 
has eliminated any reservations among them regarding the passage of 
this new CPC.  The defense bar wants the new CPC because they 
believe it puts them on equal footing with the prosecution and gives 
them a better chance to prevail.  The prosecution wants the CPC 
because, now confident in their skills, they believe that they can 
still convict people based on evidence, not the absence of political 
connections.  Furthermore, the prosecutors believe that continuous 
open trials, which the CPC introduces, will greatly improve the 
transparency of the legal system because people can observe the 
entire proceedings, rather than piecemeal as trials are currently 
conducted.  Allowing the public to observe a complete trial and see 
all of the evidence introduced by the prosecution and watch it being 
tested by the defense and judge will ultimately improve the public's 
confidence in the prosecution and the rule of law generally.  The 
public will observe firsthand that Georgian defendants are convicted 
based on objective evidence that establishes guilt beyond a 
reasonable doubt, and not based on their political leanings or 
social status.  End Comment. 
 
TEFFT