Chapter 14 Examination in Chief

Some say this is the most difficult skill.

In some jurisdictions it is called direct examination.

It is more difficult than cross-examination.

Why?

Because without leading the witness, we must extract the relevant evidence.

WITHOUT LEADING.

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With police officers and experts, this can be easy since they can refer to their notes.

Civilian witnesses on the other hand rely on MEMORY.

Incidents can appear different to them months later, and often they will wander off the point and must be brought back to what is relevant.

A witness at ease, to whom you have smiled, and gently settled with clear opening questions, is more likely to say what you require.

Always remember, the mind of an uneasy witness is generally blank.

On matters in dispute, you cannot lead.

ON MATTERS IN DISPUTE.

There is nothing wrong with leading where matters are not in dispute.

ASK YOUR OPPONENT WHAT CAN BE LED.

Sometimes the answer is nothing.

But usually, things like the date, location, time of an incident, and the name and occupation of the witness can be led. By leading on these matters you can break the witness into the witness box gently, and settle them.

A leading question is one which suggests the answer.

It's a pretty simple concept.

However, the dividing line between leading and non-leading can be blurred.

Sometimes it can be as subtle as voice intonation.

Experience will ultimately tell you the difference.

The problem with leading is not simply that it can be objected to by the opposition. It is the reason it can be objected to you must understand.

Ifyou lead, the tribunal knows you have suggested the answer, and so the value of the evidence is diminished.

Leading will undermine your own case.

As a rule of thumb, a non-leading question will begin:

WHO,

WHAT,

WHY,

WHEN,

WHERE,

HOW,

PLEASE DESCRIBE?

Questions which begin in this way are so non-leading, they can be called OPEN QUESTIONS.

But there are other types of non-leading question.

CLOSED QUESTIONS are questions which limit the witness's choice of answer. Remember, there must still be a choice, and that's the key to why they are non-leading. The choice has to be genuine.

Of course, while closed questions are non-leading, they can get dangerously close to leading.

There are two types of closed questions:

the word-choice,

-and-

the yes-no.

The word-choice closed question gives the witness a choice of words: was the man tall, or short, or average height? The word-choice offers a series of words to the witness which need to cover the whole range, and the court awaits which the witness will pick, namely tall or short or average.

The yes-no closed question invites the witness to answer yes or no: was the man tall? The choice is yes or no. This is very close to leading, but may not be, depending on how the evidence has developed. The danger here is that it may be thought you are suggesting the witness is tall.

So, be careful of asking closed questions without first having laid FOUNDATION through open questions for the basis of your closed question:

Who were you with? - A man.

Please describe the man - He was quite big.

When you say quite big, was the man tall or short or average height? - He was taller than average.

Was the man tall? Yes.

In the course of these questions, which are a mixture of different types of non-leading questions, foundation is laid from the earlier questions and the answers given, for the closed word-choice question and then the final closed yes-no question.

If you had asked the last question as the second question, you ought to be able to see you have gone too quickly to the closed word-choice, so that your opponent may sensibly object that you appear to be encouraging the witness, and therefore leading her, without foundation, to say the man was tall.

With closed questions, BE VERY CAREFUL OF VOICE INTONATION. You may be accused of suggesting the correct choice of answer from how you ask the question.

For example, you can’t quietly mutter the first two words in the choice, and then resoundingly declare the third with a cheery grin, as it would be clear that, again, you would be encouraging, and therefore leading, the witness to say ‘tall’.

With closed questions, BE VERY CAREFUL TO PROVIDE A GENUINE CHOICE.

I've mentioned it earlier, but it bears repeating.

If the answer you want is obvious among several choices, you will be criticised:

‘Was it so dark you could not have seen anything, or maybe just a bit, or were you able to see well enough to have a clear view of the burglar's face?'

In theory, there is a choice, but assuming you are prosecuting, it is pretty obvious what you want the witness to say. The choice is not genuine. The question is leading.

On the other hand, the questions might be:

What was the lighting like? (Open)

- There was street lighting.

Was it light or dark or dusk? (Closed word-choice)

- It was dusk.

What distance could you see? (Open)

- 10 metres.

What could you see over that distance? (Open)

- I could see the burglar.

What of him could you see? (Open)

- I could see his upper body.

Could you see his head? (Closed yes-no)

- Yes.

What could you see of his head (Open)

- I could see his face.

Did you say you could see his face? (Closed yes-no - repetition for emphasis)

- Yes.

If in doubt about whether a question might lead the witness, ask yourself what you would think if you were for the opposition.

Avoid the standard phrase: WHAT HAPPENED NEXT?

Sometimes the witness gives a marvellous answer.

Mostly however, the question offers no control, no parameters, and the witness either gives too much detail, too little, or just plain wanders off the point.

To avoid losing control of the witness with ‘what happened next?’ use instead THE PIGGYBACK.

The piggyback is a way of fixing the evidence in time or space, by using part of the last answer in the next question - note the italics in what follows:

Where were you?

- I was on the sofa.

In which room were you on the sofa?

- In the living room.

In the living room, what other furniture is there?

- A table, a tv, another chair.

Could you see the tv while on the sofa?

- Yes.

What of the tv could you see while on the sofa?

- All of it.

While on the sofa, did you look at the tv?

- Yes.

Did you notice anything about the tv?

- Yes

What did you notice about the tv?

So far, no question suggests the answer.

For the answer to the question, please turn over.

‘I saw a gun lying on top of it.'

Ok, it's a bit mindlessly dramatic, but I'm trying to get you to remember piggybacking.

So remember it.

Take things CHRONOLOGICALLY.

It is easy to settle the witness if you start at the beginning, proceed to the middle, and go through to the end.

Surprisingly, there are many advocates who leap about the chronology. Also, witnesses often jump about backwards and forwards in time. Be aware of it, and stop it, lest the case becomes confusing.

However, if a witness misses some piece of evidence, let it go for the time being. Come back to it later.

Of course, this breaches the chronology rule.

But you will only rattle the witness if you keep asking what else was there?

And a rattled witness's mind goes even blanker.

In addition, you risk drawing the attention of the tribunal to your concern about missing evidence. The danger here is even if you do finally get the evidence, its value may be undermined if the tribunal feels your pleading and anxious repeated enquiry has prompted the witness.

But the really tricky thing is to remember to come back to it. It can be easy to forget.

And remember to use a different question to the one which led to the problem in the first place, as it will sound as if you are seeking something new - if you use the old question, the witness will usually remember it, if subconsciously, and give the same blank answer as before.

Of paramount importance with any examination in chief is KNOW YOUR OBJECTIVES with each witness.

Your objectives will have been established while writing the closing speech on receipt of the brief.

Know what each witness needs to say for your case to succeed.

If you know precisely what you want, it is so much easier to get it.

And what you want is no more than is necessary for the closing speech.

Remember, examining a witness is not a general enquiry.

It is focused on what is needed for the closing speech.

And it is as short as it can be, while keeping the witness at ease.