Friday, April 4, 2008




Reexamination is used to provide a reevaluation of an issued matter based on prior questions of arts which are not considered by the examiner in the initial question issuance which will not only repair and restore but also to secure a repetition of the most important points of evidence tendered before the court of law.


However, the object of reexamination goes beyond explanation. The aim of the re examiner is to explain, to complete any matter left incomplete and to countervail the damaging effect of the cross examination. In the picturesque phrase of Sir Frank Lockwood, which appears in almost every book on advocacy, where it says that “re examination-the putting Humpty-Dumpty together again was by no means an important portion of an advocate’s duty. Once, in the Court of Chancery, a witness was asked in cross-examination by an eminent Chancery leader whether it was true that he had been convicted of perjury. The witness owned the soft impeachment, and the cross examining counsel very properly sat down. Then it becomes the duty of an equally eminent Chancery QC to reexamine: ‘Yes’ said he, ‘it is true you have been convicted of perjury. But tell me: have you not on many other occasions been accused of perjury and been acquitted?’ he recommended that as an example of the way in which it ought not to be done”. This means the great reason for re examination is to prevent the garbling of the evidence that can always be ingeniously done by a skilful cross examination. The scope for real restoration is very narrow, not least because re examining counsel cannot lead. This means you must be able to frame non leading questions which take you to the point quickly, simply and effectively at the same time, the lawyer must frame them in a way that does not further confuse the witness. For this reason many questions in re examination are long winded or introduced by a lengthy preamble, and to attempt in addition, to re establish a witness credit, is unrealistic. According to W.A. Wells, former Justice Of the South Australian Supreme Court and writer of one of the leading judgments on re examination, notes that ‘some of the most effective. Even dramatic work in advocacy is done in re examination, where he stated that, “reexamination in practice is exciting where it calls for rapid and precise thought and a careful choice of language. A well entrenched rule of practice forbids the use of leading questions in reexamination; but reexamination will prove abortive unless the witness’s mind is clearly directed, not only to a specific topic, but also to the facet of the topic under scrutiny upon which, in the judgment of reexamination counsel further testimony should in justice, be given by the witness. In short, the questions must show the witness what the purpose of the reexamination is, without improperly leading him to the answer sought. Besides that, some junior counsel, in their way of anxiety to avoid an injustice, or indignant at the possible misuse of the witness’s answer, stumble into asking a leading question, to which the opposing counsel immediately and vociferously objects. It is imperative that re examination proceed smoothly; the last thing you want to happen is for the witness to be rattled by a dispute between counsels”.

In the case of The Nominal Defendant v Clements, the court decided re examination is designed to rebut the suggestion of recent invention or reconstruction, applies generally, to re examine all kind of evidence. Then, in the case of R v Szach (1980), the court held that re examination arise out of the cross-examination. If in the judgment of the trial judge, this condition precedent is not satisfied, the question sought to be asked can be asked only by leave. Reexamination is within its proper limits of that right and the occasion of its exercise are subject to the close scrutiny of the trial judge, who carries a heavy responsibility. Apart from that the purpose of the reexamination also described as the available material as to a relevant event has emerged from the cross-examination and then a lawyer may reexamine to put the whole into perspective where damaging evidence has been elicited or insinuated in cross-examination and there are facts which explain or amplify, reexamination is useful. It is absolutely necessary, in many cases to give a witness an opportunity after cross-examination of explaining any statements inadvertently made during cross examination. In order to determine whether to reexamine, you need first of all to know the case, and then you must be able to recognize the damage or potential damage caused to your case by cross-examination. The other pre-condition is that you must have the material to repair the damage. If you have that material, you may reexamine and if you don’t have it, you must not. A good reexamination will not only repair and restore, but will also secure a repetition of the most important points of evidence and so imprint it more firmly. Besides that, some counsel are very conservative about reexamination and will only attempt it when certain witness has the right answers. There are others who are more adventurous, and will re examine on the basis that they believe [from pre-trial preparation and analysis] that the witness will produce the right explanation.

Basically, there are three steps in performing a good reexamination, that is:-

  1. Giving a clear and direct signpost to the witness about to be re examine in a non contentious way
  2. The lawyers are entitle to direct the witness to a particular topic
  3. Bring the witness to the critical point, where there must be careful frame of non leading question which will obtain the explanation, or omitted feature.

A reexamination must be prepared “on the run”. Preparation for its partly to be found in the witness proof of evidence as this will usually contain the additional explanatory material which you will use to repair the damage. The rest of your preparation must be done while the cross-examination is taking place. During cross-examination, keep a separate note of the points for reexamination and the question that is wished to ask. In particular watch the witness to see if there are any answer in cross-examination which a lawyer wishes to explain or add something to which may modify their effect, and make a note accordingly. In extreme cases, you may seek an adjournment for a conference at the end of cross-examination before re examining, but that is an indulgence infrequently granted. In any event, in a jury matter it may well be a tactical error, for although it gives the witness a chance to collect his thoughts, and the lawyer a chance to take instructions, it carries the appearance of both collusion and consternation. Furthermore, the tactics acquired in a reexamination are, if the evidence given by the witness has not been shaken by cross-examination and there is nothing to be explained, or nothing omitted from the evidence in chief that has arisen in cross-examination, do not reexamine, but let the witness go. This is because, if you take the risk and reexamine the witness intending to help you, this can bring the chances to ask a mistake question that will discredit the credibility of the witness. So, the safe rule is don’t mend holes, because reexamine is only about important matters. If the witness is completely destroyed by cross-examination as to his credit, and is enveloped in hopeless contradictions, the only thing to do is not to reexamine. If the attack on the credit is damaging but not altogether destructive, an opportunity to explain is desirable and will likely find the jury sympathetic to the witness. So, as a matter of good advocacy, the right of reexamination should be exercised circumspectly and confined to matter of substance. A failed attempt at reexamination will considerably reinforce the point scored by your opponent; correspondingly a successful reexamination has the twin advantage of restoring witnesses and thus enhancing credit and making your opponent look foolish. In reexamination also, lawyers cannot attempt to improve on favorable answers and do not attempt to reconcile contradictory answers unless you are sure of the outcome because a third version might be the result.

As a conclusion, reexamination is described as the right given to lawyers to re examine only when there has been cross-examination, and must be confined to explanation of matters which properly arise from that cross-examination. This stage of reexamine also to explain and, complete any matter left incomplete and to countervail the damaging effect of the cross-examination.

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