Cross-Examination of Witnesses from Former Soviet Union Countries - Chapter 26 - Take the Witness: Cross-Examination in International Arbitration - Second Edition
Originally from Take the Witness: Cross-Examination in International Arbitration, 2d Ed.
I am sometimes told that it must be difficult to represent Russian clients in arbitration “when they obviously lie so much.” I find such assumptions misconceived. It is not my experience that Russian or other Former Soviet Union (FSU) witnesses are any more prone to lying than witnesses from other jurisdictions. Lying is a function of character, not culture. The supposed Russian proverb “He lies like an eyewitness” (cited by Julian Barnes in his novel Talking It Over) is, appropriately enough, itself of disputed authenticity. I do find, however, that witnesses from regions with a recent history or current climate of arbitrary detention and state interference have learnt to their cost that information can be a dangerous thing. This can understandably affect the way they record, retain and present evidence. This in turn can make cross-examination of witnesses from such regions particularly challenging.
Of course, the guiding principle still applies – that each witness is unique and deserves tailor-made preparation – regardless of his or her origin. It may nonetheless be helpful for the cross-examiner, when preparing and delivering a line of cross-examination, to take account of three features potentially relevant to these witnesses.
I. Mistrust of Authority
Witnesses from FSU countries, even where more open government now prevails, can have a natural reticence towards disclosure and become adept at not revealing information readily.
Older witnesses who were educated under the Soviet system are especially likely to have learned to their cost that information should be distributed on a "need to know" basis. Even close friends, family and associates are typically not provided with the details of business arrangements unless it is necessary that they be informed so there might not be very many available witnesses who actually hold knowledge critical to the case. As Winston Churchill remarked to the House of Commons on 23 April 1943, "Everybody has always underrated the Russians. They keep their own secrets alike from foe and friends."