Thursday, April 3, 2008




The questioning of own witness under oath. Witnesses are introduced to a trial by their examination-in-chief, which is when they answer questions asked by the lawyer representing the party which called them to the stand. After their examination-in-chief, the other party's lawyer can question them too; this is called "cross-examination".


Examination-in-chief is the one of the most difficult and most under estimated of all the advocate’s tasks. The general view stated about examination in chief is this element is an easy task that anyone can undertake and demands neither ability nor experience. The aim of examination in chief or direct testimony is to adduce the whole of the material that witnesses can proffer about the case which is relevant and material. Besides that, the element of cross examination is also to test or attack that evidence, to correct error and supply omission and the object of re-examination is to explain, rectify and to put in order. The importance of this examination in chief also can be seen in the time where little time is commonly given when preparing for a trial and there must be a requirement where a correct method of examining witnesses in chief is of vital importance to the proper and effective conduct of case. Apart from that, any error or inability to elicit the necessary evidence has more irreversible consequences that failure in cross examination, because the witnesses evidence in chief is that upon which is so much usually depends. So, this means in examination in chief it required skill in adducing evidence. This can also be referred from the book entitle of Winning Strategies and Technique for Civil Litigation, written by JE Lyons, “where the trial lawyers greatest opportunity to hammer the facts to the jury comes during direct examination. It is then that the trial lawyer will have the greatest control of the organization and pace of the interrogation and it is then he should be confident of what the answer will be.” Next, the examination in chief also play a central role where it will present the evidence in a complete and convincing form and the evidence in chief is therefore the pivot of the whole case.

The scope of the examination in chief is to elicit from the witness a complete orderly story told by the witness in his own natural way, with the minimum of prompting. The story should be in the in the right order, usually the order of time. If there are several distinct topics and they should be introduced one by one according to their importance, where each topic being exhausted before turning to the next aspect of the story. Besides that, the story also should be complete in detail, but this does not mean that it is necessary to go into minute details which have no substantial relevance and then the selection may be necessary. The examination in chief also will have its own strategic plan and the witness will provide the lawyers with the tactical means of achieving any lawyer’s responsible objective. This element also states that there must be a definite object in mind when asking a question. This means the objective in raising a question cannot be confusing or side tracked. In examination in chief, it is safe to not ask a question unless there is a good reason to believe the answer will be favorable. The examination and the individual question alike should be as short as the case permits. This is because any non essential materials in chief will only serves only to present your opponent with more material on which to cross examine. It is enough for the witness to be cross examined about the issue and it is pure folly to provide the opponent with irrelevant material to use for counter attack. Apart from that, in examination in chief, there are certain aspects to be followed such as the witness preparation, where to succeed in any case, one needs sound preparation based on detailed knowledge and understanding of the case. This means, the witness must be instructed about the examination in chief that their answer must be short and no additional answer to the question asked. Next, the witness in a in chief stage, must listen to the question and answer it. if a completely truthful answer can be given by ‘yes’ or ‘no’ or ‘I don’t know’ or ‘I don’t remember’, that should be the answer made. The third aspect is the witness must be advised to not to guess an answer and do not reconstruct. The witness should be given hypothetical examples of the pitfalls that attend failure to follow these rules. Furthermore, there are also the tactical decisions, where, the case theory will have established the narrative or story, it is intended to present and ultimately prove. The brief or file and subsequent conferences will have identified that witnesses are available. The tactical question who to call then arises.

Decisions must be made whether all or some only of the available witnesses are to be called and whether there are sound reasons to exclude any particular witness. In this stage also, in the aspect of proving a prima facie case, the examination in chief plays a prominent role where according to Wrottesley, in the book entitle, Principles of Advocacy, “it becomes necessary sometimes for the plaintiff only to put in enough of his evidence to make out a prima facie case, and it is occasionally best to keep back the strongest testimony until the testimony of his opponent has been heard, and then offered by the way of rebuttal to the case which is being made against him. After the jurors have heard the testimony for the defence, they are better prepared than they were before to appreciate the remaining testimony of the plaintiff”. Then, examination-in-chief also gives importance to the order of the witnesses, where it is strictly advisable to put your best witness first in the in chief stage, that is relevant with the aim of the examination in chief that, to prove the witness the various elements of the case. Besides that, we also can see the rational of the usage of examination-in-chief, where it is based on the rule that the lawyer/advocate may not be the witness because they are not competent to take the oath, nor present at any relevant stage of the vents to be related. In examination in chief also, stated that it is wiser and safer to obtain evidence which could on any view be contentious by the use of non leading questions and it is customary for the witness to be led only until the matter in issue is reached. This has been quoted by R v Thynne [1977], where it said “the prohibition of leading questions in examination-in-chief is intended to prevent the examination from being conducted unfairly. There is a risk that a witness who is asked a leading question may assent to the suggestion made to him instead of answering from his own memory”. The techniques used in an examination-in-chief, as been explained in Cross on Evidence [Aus Ed], where “it may be noted that the evidence of witness in chief is elicited by means of question and answers, not by the delivery of the speech. The purpose of examination in chief is to enable the party who has called a witness to put his evidence before the court; the method adopted being that of oral question and answer. This is a characteristic feature of the English trial which is made essential by the exclusionary rules of evidence. If a witness were allowed to say what he wished, as in the continental practice, a rule such as the exclusion of hearsay would be Impossible to operate. The question and answer method gives counsel control of what the witness says, which makes for order and relevance but places upon counsel a considerable responsibility to present the evidence in a fair and complete manner”. There is also general technique in the stage of in chief, where it consists of first the manner. This means, must be polite and firm when having concluded the opening speech and gained the attention on the way of introduction and reception of your evidence in chief. This behavior is important because, it will bring a pleasant and polite manner that will ensure continued attention of the judge and the witness, therefore settling his nerves. Next, the lawyers have to remain good tempered, where if you never lose our temper and invariably treat all witness you examine with courtesy; you will obtain more favorable testimony than would be obtained. A lawyer in this stage also must remain in control, where you can obtain and retain control over the witness. The next element is the voice usage, where it must be a clear, distinct and interesting and can be understood by the witness and the tribunal, with good variation of pitch and tone effective to highlight certain aspects of the testimony. This follows with the command of language, where you must need a sufficient general knowledge to enable you to enliven and illustrate them without relying on the clichés. The other factors that follows are in conducting a examination in chief are form, pace, content, style, listening to the answers, and other relevant aspects.

So, this means in an examination in chief that rule of evidence that govern the rule of the in chief stage, summarized as, the witness must be competent and the evidence given must be relevant. Besides that, the witness and the evidence given also must be credible, admissible, must not be in a general rule as hearsay evidence. Next, it also must be the whiteness’s evidence that is must not be a leading question and the examiner must not impeach his own witness.

No comments: