This is a definitive guide to the examination of witnesses
In this guide, you will learn;
- the meaning of examination of witnesses
- things to consider before examination of witnesses
- the attributes of a good witness
- types of examination of witnesses
- examination-in-chief techniques
- cross-examination techniques
- re-examination techniques
Let’s get started
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What is the examination of witnesses?
The examination of witnesses is the process of obtaining evidence from the witness during the hearing of the case.
This process involves asking questions and leading the witness to adduce articles or documents as evidence before the court.
The techniques in the examination of witnesses hinge on how to frame/phrase your questions and how to lead the witness to properly adduce his evidence.
Before the examination of any witness
- Make sure you understand the facts of the case.
- Talk to your witness before the session
- Tell them what you expect from them, remind them of important issues of the case, and make them feel comfortable; make sure he understands the material facts of the case.
- Arrange your witness according to their importance.
- Start with the key witness. For Example, in a criminal case, the key witness is a victim while in a civil case the key witness is you. Remember the quantity of the witness does not matter but quality.
- Each witness must prove or corroborate something
- Make sure all the witness who gives evidence are useful in terms of proving or disapproving the existence of certain facts in your case.
In choosing witnesses you have to put into consideration the following attribute of a good witness;
- A smart witness
- A direct witness (a witness who was present at the scene)
- Not bias
- Who knows the facts of the case
- Honest and Trustworthy
Types of examination of witnesses
There are three types of Examination of witnesses namely examination in chief, cross-examination, and re-examination.
Examination in chief
Examination in chief refers to the examination of the witness by the person who called that witness.
For example, when you have been called by the republic to give evidence in any criminal case, the question that you will be asked by the state attorney or public prosecutor is an examination in chief.
The purpose of examination in chief is to enable the person calling the witness to extract from his witness, subject to rules of evidence and procedure everything that the witness knows about the case so as he can build his case.
How to conduct the examination in chief
The following is how to conduct the examination in chief
Do not ask leading questions
Leading questions refer to the questions which suggest answers.
Examples of leading questions are, You were at home or at the scene of the crime on 1st July? or Did you see the accused person stole the computer at the office?
During examination in chief, leading questions are forbidden to assess the credibility of the witness.
Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony.Federal Rules of Evidence–Rule 611
However, you may ask leading questions in the introductory matter and undisputed facts.
Otherwise, instead of leading questions, you should ask questions like who, what, where, when, and how which allows the witness to tell the story naturally.
For example, Where were you on the 1st of July or What did you see at the office?
Ask simple questions
Simple questions attract simple answers which avoid complications for the witness side.
Many witnesses are afraid of court.
Simple questions will make the witness comfortable and will let the witness remember the answers.
Avoid unnecessary interruption
Let the witness tell what he knows without interruption. Give him/her enough time to think about answers and arrange his sentences.
Consider the chronological flow of the story
The flow of the story is essential when it’s come to evidence. Guide the witness to tell the story in the chronological flow of the events.
When asking you questions observe the flow of events.
Guide the witness to tell the material facts of the case logically.
Let the witness be your friend.
Ask questions in a friendly manner and when the witnesses ask you to repeat do so in a helpful way.
Ask a witness if he wishes to adduce any document or article in his possession as evidence.
You must lead the witness to tender the document or any article in his possession to court.
When the witness is ready to tender the document, make sure you ask relevant questions regarding that document.
For example, if it is a medical report, you may ask the questions like, who prepared the report, what the report contains, etc.
Cross-examination of witness
Cross-examination is an examination of a witness by the opposite party after examination in chief.
For example, when you have been called by the republic to give evidence in any criminal case, the questions that you will be asked by a state attorney or public prosecutor is an examination in chief and the question that will be asked by the accused person or his advocate is a cross-examination.
The purpose of cross-examination is to discredit the evidence adduced during the examination in chief.
To destroy your opponent’s case and build yours. To show that the witness is not reliable, he is a biased or outright liar.
How to do cross-examination of witnesses
The following are the tips on how to conduct cross-examination of witness witness
Ask leading questions
Unlike in examination in chief where leading questions are forbidden, in cross-examination, the leading question is allowed.
Ask a leading question to test the truthfulness of the facts.
Your questions should be tight and limited to one fact per question.
Ask a series of questions with a purpose
Ask a small piece of the question with a major purpose.
In cross-examination don’t ask a question that you don’t know its answer and don’t ask without purpose.
Maintain eyes contact with the witness
Eye contact can make you detect if the witness is lying.
Observing the body language of the witness
body language can help you determine the strengths and weaknesses of the witness. is the witness tremble?
Don’t be harsh but never treat a witness as a friend
In cross-examination witness is not your friend, your goal is to prove him wrong on key facts stated in his examination in chief.
Focus on attacking the essential facts of the case
Make sure you attack essential facts of the case including documents or any article adduced as evidence.
It is not necessary to ask too many questions to archive this. Sometimes one or two questions might be enough.
Start strong and finish strong
Technically that is referred to as the principles of primacy and recency.
By starting strong and finishing strong you will make your cross-examination more memorable.
Re-examination of witnesses
Re-examination is the examination of the witness by the person who called that witness for the purpose of rebuilding what has been destroyed in cross-examination.
Re-examination is not a must.
You are advised to re-examine unless it is necessary.
Only when cross-examination has destroyed your examination in chief.
The object of re-examination is to allow reconciling the discrepancies if any, between the statement in examination in chief and cross-examination or to explain any statement inadvertently made in cross-examination or remove any ambiguity in the deposition or suspicion cast on the evidence by cross-examination.
How to do a re-examination of the witness
- Only ask questions that intend to rebuild your case
- Avoid unnecessary repetition
- Ask simple, clear, and straightforward questions
- Avoid confusing the witness.
NB. During the examination of the witness makes sure you record everything for ease of reference.