07TBILISI1530, GEORGIAN PROSECUTORS INSTITUTIONALIZE NEW TRIAL

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Reference ID Created Released Classification Origin
07TBILISI1530 2007-06-26 13:10 2011-08-30 01:44 UNCLASSIFIED Embassy Tbilisi

VZCZCXRO6050
RR RUEHDBU RUEHLN RUEHVK RUEHYG
DE RUEHSI #1530/01 1771310
ZNR UUUUU ZZH
R 261310Z JUN 07
FM AMEMBASSY TBILISI
TO RUEHC/SECSTATE WASHDC 6791
INFO RUEAWJA/DOJ WASHDC
RUCNCIS/CIS COLLECTIVE

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 or
ganized crime areas. All of the foregoing will 
guarantee the long-term sustainability of the CPC and other 
important criminal justice reforms. End Comment. 
 
TEFFT

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