When a witness gives oral evidence in court during a trial, contested hearing or committal hearing, this is known as examination-in-chief. Examination-in-chief occurs when the party that has called the witness, is eliciting their evidence. After giving examination-in-chief, witnesses are subjected to cross-examination, where their evidence is tested by the other party.
When a witness is called to deliver their examination-in-chief they will be asked their name and required to take an oath or make an affirmation that their evidence will be the truth. They will then be asked a series of questions, which they must answer to the best of their ability. Common law, the uniform Evidence Acts and other legislation impose restrictions on what questions can be asked during examination-in-chief.
What questions are not allowed?
When conducting examination-in-chief, you must be careful to avoid asking questions in a way that is not permitted. Doing so will usually lead to the other party objecting, which will interrupt the flow of your evidence and detract from the witness’s impact.
During examination-in-chief, evidence must be elicited without any leading questions. Leading questions are questions that suggest an answer, for example ‘Was the man tall?’ or ‘Was he wearing a black jumper?’ Instead, ask open questions that do not ‘put words in the witness’s mouth’. For example, ‘How tall was the man?’ or ‘What was he wearing?’
Questions that are not relevant
Evidence in chief must be limited to matters that are relevant to the proceeding. If you want to pursue a line of questioning whose relevance is not immediately apparent, you should indicate to the court the reasoning behind your line of questioning and explain why it should be allowed.
Questions should not be asked during examination-in-chief that invite a witness to give evidence that is inadmissible hearsay. Inadmissible hearsay evidence is where a witness tells the court what someone else said for the purpose of establishing the truth of the other person’s statement. Evidence of what someone else said is not inadmissible hearsay if it is given for a purpose other than establishing the truth of the statement.
A witness should not be asked to give an opinion in the course of their evidence other than an opinion about something which falls within the scope of common knowledge. For example, it is acceptable to ask a witness how fast they think a vehicle was traveling or how old a person appeared to be, but they should not be asked to give a medical opinion (unless they have the relevant qualifications and experience).
Can a child give evidence?
A child can give evidence in a criminal proceeding provided the court can establish that he or she understands the duty to tell the truth when giving evidence. This can be established in any way that is appropriate for the age and level of maturity of the child. A child does not have to give a formal oath or affirmation.
Privilege of non-incrimination
In the course of giving evidence, a witness may be asked a question whose answer could incriminate them in a crime other than the crime that is the subject of the proceeding. A common example of one of these questions is ‘Had you taken any drugs that night?’
Questions that have the potential to incriminate a witness will generally not be disallowed, but the judge or magistrate will inform the witness that they do not have to answer the question. The witness can choose to answer the question or not to.
The privilege of non-incrimination is lost if a defendant chooses to give evidence in their defence.
If a witness does not advance the case of the party that called them, they are known as an unfavourable witness. A witness is unfavourable if they cannot recall the crucial facts of the statement they originally gave to the prosecution or defence. If a witness is unfavourable, the party that called them may ask the court for leave for the witness to be allowed to refresh their memory by rereading their original statement. If a witness still cannot recall their evidence after reading their statement, they should be removed from the witness box.
If a witness gives evidence that is harmful to the party that called them, they are known as a hostile witness. A witness is ‘hostile’ if they deliberately give a different version of events from the one they gave in their original statement. If a witness is hostile, the party calling them can seek leave from the court to treat them as a hostile witness. If this is granted, the party will be allowed to cross-examine the witness and put it to them that they are not being honest.
Preparing your examination-in-chief
If you are representing yourself, you must prepare your examination-in-chief very carefully. Think about all the information you need to get from each witness and consider ways to get this information without asking leading questions. In examination-in-chief, you may use open questions or closed questions. When you are eliciting a witness’s story from them, it is advisable to use open questions, but when you require a specific detail, you may need to ask a closed question.
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