Chapter 16 Re-examination
In general, DON’T DO IT.
Only do it if you are very good.
It tends to highlight to the tribunal the areas you think are weakest in your witness.
And if you don't do it, it often makes it look as if you feel your witness has done well, even when she hasn't.
One circumstance for re-examination is where cross-examination has opened up an area for exploration which you would not have been allowed to explore in examination in chief.
But the point here is this is not truly reexamination - it is more a species of examination in chief you are allowed after cross-examination. True re-examination goes over ground covered in chief which was then battered under cross.An example of a new area might be in a domestic violence case where under cross-examination there are questions about the history of violence in a relationship which you could not have asked in chief as the evidence had been limited to the allegation on the indictment. Arising from the crossexamination, you may be able to ask the witness to go through the whole history. You would need the permission of the judge. But as you can see, it is a species of renewed examination in chief - it is about teasing out new material.
A particularly good reason for re-examination is TO MASSACRE your opponent.
If the witness is twitching with righteous indignation at a bad crossexamination by the opposition, let her repeat the core points of her evidence, ask her if he agrees with the foul suggestions made by the opposition, ask her if she is inaccurate or exaggerating, or unreliable, or lying, whatever, and finish with the question:
‘Finally, is there any truth in the suggestions made by my learned friend?’
You massacre your opponent's case.
You massacre your opponent’s credibility.
However, if a problem has arisen in cross-examination, then in reexamination you get a chance to cure it - though everyone knows there is a problem now, and the credibility of your case can hinge on how well you rescue the witness, without leading.
Re-examination is often quite dramatic and you can hear a pin drop, as everyone cranes forward to hear what is said.So the first rule is don’t wing it - get it right - PREPARE IT. Ask for time if necessary.
The second is THINK AHEAD - work out realistically what the witness can put right, whether the witness has the wit to see the problem and help herself, and whether it is better to explain away the problem in closing than risk the witness being re-examined on it and making matters worse. To an extent you have to think for the witness as to whether re-examination will work out worse.
The third is use the previous testimony for PIGGYBACKING - mercilessly. What this means is fix the witness clearly on the testimony you wish to explore by quoting back what was said. Keep tightly to that testimony, or the witness may wander into chaos. And to get this right, you need an instinct for people - see rule 2. And use lots of closed choice and closed yes-no questions, for which you ought already to have foundation from the previous testimony. Basically, you almost lead, but not quite - it’s an art - like I said at the beginning, you may not be much good at it at first, so be careful, and always be asking yourself, how is the witness coming across, not are you getting through it - ask yourself, is the witness being credible as she digs herself out of the cross-examination hole.
Let’s think back on the cat on the mat...
In cross-examination you said your statement was true, that the cat was nowhere to be seen, whereas in direct examination you said the cat was sat on the mat -1 wish to ask you some questions on this, do you understand?
Yes
At the time of the offence, was the cat on the mat or nowhere to be seen? Nowhere to be seen?
Before the offence was the cat on the mat or nowhere to be seen?
On the mat.
How long before the time of the offence was the cat on the mat?
Five minutes before.
After the offence, when did you next see the cat on the mat?
Five minutes after.
When you said in direct examination that the cat was sat on the mat, to what stage in the story of the offence were you referring?
To the five minutes before.
In your direct examination, did you mean to say that at the time of the offence the cat was sat on the mat?
No
What did you think you were saying?
I thought I was referring to where the cat was just before, but I can see this may have come across as where the cat was at the time?
Why did this happen?
Well, I was confused, and uneasy.
Why were you confused and uneasy?
I am not used to being in court, and did not appreciate how important where the cat was, and exactly when - I'm sorry.
Ifyou did not appreciate if it might be important exactly where the cat was, and exactly when, how does this affect your testimony on the offence itself?
It doesn 't, I guess the cat ran off to avoid the violence, I may be wrong about where the cat was at the exact moment the knife was used, but I am not wrong about the details of the stabbing.
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Re-examination does not work every time - but note the tightness of the questions before they become open, the preparation, the piggybacking, how the witness has been alerted to the problem, and how you have created an opportunity for the witness to dig herself out of the hole.
Alternatively, if you judge her from your innate understanding of personalities to be unable to reconcile the inconsistency, you may reserve your comment for closing that who cares where the cat was, it is a minor and insignificant detail, it does not affect the reliability of the description of the offence, and in this way avoid the risk of re-examination merely drawing attention to what cannot be answered.