Did you know? Legal practitioners must follow strict rules at trials and hearings when questioning a witness to avoid having evidence discredited or excluded. This bulletin outlines the three key stages of witness examination.
Examination-in-Chief
Examination-in-Chief is when a party calls their own witness to the witness box to give evidence to support their case. A witness can only provide evidence of facts within their own direct knowledge unless they are formally qualified and acting in the capacity of an expert. While generally limited to their own recollection, a lay witness may, under specific rules, be permitted to refresh their memory using certain documents. A witness is not permitted to give their opinion on speculative considerations.
A “leading question” cannot be asked during Examination-in-Chief; that is, any question that within it suggests the answer. For example, an acceptable question would be “What did you see?”, as opposed to the leading question, “Did you see the defendant steal the money?”.
Cross-Examination
Cross-Examination follows after a witness completes their Examination-in-Chief and is the opposing party’s opportunity to test the witness’s evidence and credibility. Leading questions are allowed when questioning a witness during Cross-Examination. Cross-Examination is a useful mechanism to challenge the credibility of a witness or highlight inconsistencies in their evidence.
The rule in Browne v Dunn, established in an 1893 English case, requires that if a party intends to later contradict or challenge a witness’s version of events, the substance of that contradiction must be put to the witness during Cross-examination. This ensures procedural fairness by giving the witness an opportunity to respond to the allegation or conflicting evidence while still in the witness box. For example, if a witness says they never received a letter, but your client says they hand-delivered it, the witness must be asked during cross-examination “Is it correct that you were personally handed the letter?”. Failure to raise the issue during Cross-Examination can result in later contradictory evidence being disallowed or given little weight, potentially significantly undermining a party’s case.
Cross-Examination cannot venture into harassment or badgering the witness, and questions relating to prejudicial or irrelevant matters are not permitted.
Re-examination
Finally, the party who called the witness can re-examine them to address and clarify matters that arose during Cross-Examination. New issues or topics that were not addressed in Cross-Examination cannot be raised. Re-examination is not a second chance to perform an Examination-in-Chief.
Key takeaways
Lawyers must be careful to employ questioning strategies that are within the acceptable parameters set by the rules of evidence of the court. Missteps can result in evidence being heavily discounted, excluded, or even raise ethical concerns.
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.
