GEORGIAN PROSECUTORS INSTITUTIONALIZE NEW TRIAL

UNCLAS SECTION 01 OF 03 TBILISI 001530 SIPDIS SIPDIS STATE FOR INL, EUR/ACE, EUR/CAC DOJ FOR OPDAT (LEHMANN/NEWCOMBE) E.O. 12958: N/A TAGS: SNAR PGOV KCRM KJUS GG SUBJECT: GEORGIAN PROSECUTORS INSTITUTIONALIZE NEW TRIAL ADVOCACY SKILLS ¶1. Summary. In January 2007, the Department of Justice (DOJ) and the Office of Public Prosecution Service (OPP) developed a year-long training program, including a cadre of local trainers, a core curriculum, explanatory materials and interactive training techniques, to ensure that the more than 600 prosecutors throughout Georgia have the advocacy skills necessary to successfully prosecute cases using the new Criminal Procedure Code (CPC) slated for passage later this year. In late 2006, 30 trainers were selected from among the best and the brightest at the OPP to receive instruction from the CPC drafters and DOJ/OPDAT Resident Legal Advisor (RLA) Keller on the contents of the new CPC, advocacy skills development, and effective teaching methods over the course of a year-long CPC "train the trainers" program. Following each monthly installment, the trainers have returned to their home offices to conduct similar CPC training programs for their colleagues. Indeed, these 30 trainers are and will continue to be critical to a successful and lasting shift to the success of this very important CPC implementation program. On June 2, the RLA attended one of these training programs in Telavi. The Telavi trainers used the techniques they acquired at the "train the trainers" program to convey the CPC friendly form of advocacy to the prosecutor trainees. Georgian prosecutors are adapting to this new advocacy form, albeit slowly. Based on the RLA's observations at the Telavi seminar, however, the Georgians have a sound start to their transition from a Soviet-style system to an adversarial criminal process. End Summary. ¶2. The Georgians' groundbreaking draft CPC, which is expected to pass its second reading this summer or fall and come into force later this year, will transform the Georgian criminal process from a Soviet-style inquisitorial system that focuses on building a dossier by gathering written affidavits during pre-trial investigations to a Western style in-court adversarial system that focuses on obtaining incriminating evidence through witness examination before a judge and/or jury. Shifting the focus from the pre-trial dossier to live examination of evidence in court by prosecutor, defense, and judge or jury is significant because it enhances the transparency and credibility of the criminal process and further entrenches a criminal justice system based on the rule of law. While the Georgian public did not participate to a large extent in the dossier building process, in-court adversarial examinations will allow the public to view pre-trial and trial court proceedings and, in the case of jury trials, actually determine for itself the strength of the government's case. -------------- Challenge and Response -------------- ¶3. With the goal of arming all Georgian prosecutors with the skills necessary to prosecute cases under the new CPC, DOJ and the OPP designed a year-long CPC training program to be taught primarily by 30 prosecutor-trainers from Tbilisi and the regions. DOJ and the OPP will use this "train the trainers" program to effectively train more than 600 prosecutors in a relatively short period of time. Beginning in March, these trainers have traveled to Tbilisi every month to spend several days learning not only the substantive content of the CPC and effective advocacy skills, but also modern interactive instruction techniques (e.g., case studies, mock proceedings). Following these trainer seminars, the prosecutors return to their offices and replicate the substantive training for their colleagues using interactive teaching methods, such as brainstorming and role playing. By the end of the training program, all 30 trainers will have learned how to conduct direct and cross examinations, opening statements, and closing arguments. Furthermore, they will have honed these skills in a series of mock trials. They also will have developed a number of written materials, such as evidence checklists and a compilation of "dos and don'ts" for conducting effective direct and cross examinations. -------------- Grooming a Cadre of Trainers -------------- ¶4. Transitioning from a Soviet-style inquisitorial system to a Western in-court adversarial system is difficult for seasoned lawyers who have used the same approach for decades to successfully convict criminal defendants. They must discard well-accepted and long relied upon practices and adopt new, untested skills. For example, to the extent that a witness testified in the inquisitorial system, conducting cross examination provided the prosecutor with no beneficial advantage because he could not use leading questions to bring to light a witness's inconsistent statement. Instead, the witness simply regurgitated facts that were previously recited in the affidavits collected during the pre-trial stage. By contrast, cross examination using leading questions is central to an in-court adversarial system. Cross examination using leading questions allows a prosecutor to highlight not only a witness's inconsistent TBILISI 00001530 002 OF 003 statements, but also his bias in the defendant's favor, statements inconsistent with accepted facts, the witness's inability to recall key facts, and his characteristic for untruthfulness. ¶5. In addition to cross examination skills, the year long "train the trainers" program teaches the prosecutors how to conduct direct examinations, opening statements, and closing arguments. These skills are necessary to allow the prosecution to paint a picture for the finder of fact (i.e., the judge or jury) of what happened and why the defendant should be convicted. For example, direct examination using open ended questions (such as "what did you see," "where were you," and "describe how you felt") allows a prosecutor to persuade the jury using the witness's testimony by eliciting key facts during the direct examination. By contrast, in the inquisitorial system the prosecutor has little control over the witness because the witness, in response to the prosecutor's question "what happened," simply recites a narrative until interrupted. Similarly, the opening statement - - a trial's prologue - - outlines the important evidence the prosecution expects to introduce during the trial and, more importantly, provides the finder of fact with a favorable prism - - otherwise known as a theme - - through which to view the evidence. Finally, the closing argument allows the prosecution to explain how the pieces of evidence gleaned throughout the trial form a complete picture that justifies convicting the defendant. In order to practice these skills and develop confidence with them, the prosecutors practice them in a series of mock trials. The mock trials are an effective interactive teaching tool because even though the prosecutors conceptually grasp the new skills, they struggle with trusting them since the skills are untested in Georgia. Consequently, "in the heat of battle" the prosecutors want to revert to their old habits. The mock trials help the prosecutors become more comfortable with the new skills and learn to trust them. Future trainings will readily demonstrate to the prosecutors that they need to rely on these new skills because they will need to apply them in preparing cases for trial. -------------- Developing Trial Advocacy Skills: Successes and Challenges in the Field -------------- ¶6. In May, the trainers learned how to conduct opening statements. They conducted their field trainings during the June 1-2 weekend. RLA Keller traveled to Telavi, Georgia to examine the prosecutors' progress and to assess the trainers' efforts to teach the necessary trial advocacy skills. Generally, the prosecutor instructors replicated the contents of their own trainers' seminar, providing the prosecutors with the necessary information and an opportunity to practice the trial advocacy skills in a moot court setting. However, the seasoned prosecutor trainees struggled with the new skills. ¶7. The prosecutors quickly grasped the opening statement concepts. They understood the need to highlight for the finder of fact key witness testimony, to note a witness's potential bias, and to provide the finder of fact with a prism through which to view the evidence. However, the prosecutors struggled, to some extent, to apply the new adversarial skills during the mock trials. The trainees found cross examination using leading questions to be the most fascinating part of the training. Like the proverbial kid in a candy store, they sensed that they could exploit this new skill to present their cases more effectively. However, they found this new skill's application to be challenging. For example, when cross examining the defendant's witness, they failed to use leading questions that incorporate a single fact for the witness to confirm or deny, i.e., you are the defendant's girlfriend. Such a question requires the witness to simply answer "yes" or "no." A "yes" answer provides the prosecutor with ammunition to argue during closing argument that the witness is biased in the defendant's favor and should not be believed. Instead, the prosecutor asked the ultimate question, i.e., you are biased in the defendant's favor. Predictably, the witness said "no." The prosecutor's question deprived him of the fact - - that the witness is the defendant's girlfriend - - necessary to argue the witness's bias in closing argument. When the trainer explained how to ask the questions differently, the trainees understood the change - - at least conceptually. ¶8. Future trainings will provide the trainees with additional opportunities to practice the new trial advocacy skills, including cross examination. Furthermore, they will teach the prosecutors how to use their new found skills to examine expert witness, such as doctors or forensics experts, and cooperating witnesses who, because of their criminal past, have information that incriminates a defendant, but are themselves tainted because of their criminal conduct. Moreover, future seminars will teach the prosecutors how to use these trial advocacy skills to dissect a case and prepare it for trial. At this stage, however, the prosecutors understand that TBILISI 00001530 003 OF 003 they need to abandon their old notions of trial work and master the new skills necessary to successfully prosecute cases under the CPC. Additional practice is necessary, but the DOJ/OPP "train the trainers" model is successfully conveying the in-court adversarial skills to the prosecutors one step at a time. -------------- Comment: Ensuring Lasting Change -------------- ¶9. Comment: The CPC shifts prosecutions in Georgia from a dossier-based Soviet-style inquisitorial system to an in-court, adversarial system. However, this change must be institutionalized. The DOJ/OPP CPC training program will ensure that Georgia's new CPC will be a lasting change. The CPC "train the trainers" approach has established a group of Georgian expert trainers with good trial advocacy skills that will only get better over the course of the training program and as they continue to try cases using the new Criminal Procedure Code. Additionally, these CPC trainers provide the OPP's nascent in-service continuing legal education program with its first core group of instructors armed with state of the art teaching techniques. Further, a comprehensive set of written training materials and interactive exercises have been created to train Georgia's current and future prosecutors on how to effectively present criminal cases in court under this new criminal procedure regime. These materials, in turn, may easily be revised for use in practical seminars addressing how to work criminal cases using Georgia's new legislation in the human trafficking, fraud, corruption and organized crime areas. All of the foregoing will guarantee the long-term sustainability of the CPC and other important criminal justice reforms. End Comment. TEFFT