Direct Examination, Examination in Chief and Witness Statements

Tuesday, January 28, 2020

1.3 INTRODUCTION:
The ability to examine and oppose the examination of witnesses in open court in an adversary setting is the most basic skill of the trial lawyer. Yet the most common criticism made of trial lawyers is their inability to conduct proper, intelligent, purposeful examinations and to oppose those examinations.

A good lawyer leads his or her witness to turn evidence into fact and fact into truth. It’s the duty of Counsel representing the prosecution to ensure that he or she discharges the burden of proving the case beyond a reasonable doubt (criminal proceedings). Prosecutors must therefore call witnesses in every trial to prove their case to the expected standard. This is the same position even in civil proceedings where the burden of proof is either on the balance of probability or slightly above the balance of probability but not beyond reasonable doubt. Examination in Chief is the keystone in the prosecution's arch. It is also important to the defender who will call witnesses in support of the defensive theory.

Direct examination is a vastly overlooked skill. Unlike cross-examination, there is very little written material to guide practitioners through the examination of their own witnesses. This is surprising because cases are actually won or lost on the fruits of direct examination. Examination in Chief is one of the most subtle and sophisticated form of advocacy. It is subtle because a good chief examination focuses entirely on the witnesses and their evidence. The evidence should appear to be flowing effortlessly from the witness. It should look easy. Whereas the witness should be memorable, the lawyer should not. Chief examination is sophisticated advocacy because during its course, counsel is actually presenting their case, while trying to satisfy a multitude of objectives, such as maximizing the potential of each witness to present all relevant evidence in as logical, credible, persuasive and accurate manner as possible, while knitting all witnesses' evidence together in a coherent fashion in order to prove all the elements of the offence beyond a reasonable doubt

Examination in Chief thus becomes a starting point for any litigation. In the adversarial system of our country, it becomes a tool of extracting truth from the facts.

1.4 Definition of Examination in Chief:

The examination of a witness by a party who calls him shall be called examination in chief (see Sec. 136 (1) of the Evidence Act). Examination in chief is the first examination after the witness has been sworn in or affirmed. It is a province of a party by whom the witness is called to examine him in chief for the purpose of eliciting from the witness all the material facts within his knowledge which tend to prove the party’s case. Examination in Chief is also known as Direct Examination. This is where you obtain evidence from your own witnesses. You need to ensure that your witnesses give clear evidence and that they do not talk too fast in order that notes can be taken. Ensure the witness faces the Judge or Judicial officer

4 Module 02: Examination in Chief and Witness Statements,

when answering questions and is not looking at you. This will enhance the quality of their evidence. When asking your witnesses questions, you need to try to elicit from them only the evidence that is relevant. Always therefore bear in mind why you are asking your witness a particular question and what you want to hear from them.

1.5 Objectives of Examination in Chief:

Examination in chief of a witness is intended to achieve a number of objectives;

1.5.1 Major Objectives

a) To determine admissibility of evidence;

b) To prepare a witness to lead evidence in a trial;

c) Present persuasive and credible evidence; and

d) To prove each and every element of the cause of action, offence and or defence to the expected standard.

1.5.2 Minor Objectives

In addition, you are also trying to achieve the following slightly less essential, but still important, objectives:

a) Present a logical, complete and coherent theory of your case;

b) Present each witness in the best possible light;

c) Use the evidence of one witness to support another so that a seamless cloth may be woven of the proven fact;

d) Fill in gaps in the evidence and attempt to explain any inconsistencies;

e) Shut down potential cross-examination thereby limiting the exposure of your witnesses; and

f) Allow the defence as little room to move as possible by minimizing the possibilities of a defence supported through cross-examination of witnesses.

5 Module 02: Examination in Chief and Witness Statements

1.6 The Directed Approach to Examinations-in-Chief

1.6.1 Effective questioning techniques – leading vs. non-leading questions

1.6.2 Moving from “open questions” to “directed examination” – planning the direct examination – breaking down the topics/issues – effective problem analysis

1.6.3 Understanding the Importance of Preparation

Most witnesses have no prior experience in testifying. As counsel, it’s your job to ensure that both you and your witnesses are thoroughly prepared. This includes fully understanding what evidence needs to be elicited from each witness, and preparing your witnesses so that they can effectively convey this information. In this session, you will learn:

- What does an unplanned examination-in-chief look like?,
- How to elicit the information you need from your witness

1.6.4 Developing Your Theories

While working in small groups with your firm leaders, you will analyze the sample case file and identify the following:

- Legal theory of case (i.e., why the law allows your client to win)

- Factual theory of the case (i.e., what really happened and why – identifying best, worst, and neutral facts)

- Persuasive theory, or theme of the case (i.e., why it is fair and equitable for your client to win)

Jointly Prepared by Linda Alinda Ikanza & Paul Mukiibi

1.6.5 Setting the scene

- how do you get a trier of fact judge to really understand what the scene looks like; and

- effective use of diagrams, drawings, etc.

1.6.6 Headlines and transitions

- why are headlines so important;

- effective use of headlines to create the outline of a good examination;

- Listening, and looping back;

- How to be more persuasive;

- Techniques to effectively follow up, clarify and qualify facts; and

- How to keep control of the witness

This session will also include a discussion about practical tips and strategies on how to make your witness more persuasive.

You’ll engage in hands-on exercises and drills focused on how you should deal with a witness when they do not provide you with the answer you were hoping for, and learn strategies for how to manage the following issues:

- The witness who talks too quickly or too softly;

- The rambling witness;

- Dealing with partial or insufficient answers;

- Using notes to help direct questioning;

- Making eye contact, and with whom;

- The importance of pace and strategies for setting the right one;

1.7 Leading Questions

During examination-in-chief the advocate is forbidden from asking their witnesses leading questions. A leading question is one which in its phrasing suggests its own answer1. By way of an example, the man wearing a red and white jumper, wasn’t he? By suggesting the answer to the witness you reduce the witness impact. Leading questions are forbidden in examination-in-chief because the solicitor is not allowed to lead their witness and in effect put words into their mouth. When you call your own witness you hope and expect that they will provide evidence that is favourable to your case and will 'come up to proof'.

As a general rule when you ask your witness questions you should phrase your questions using simple words and phrases to ensure the witness fully understands what you are asking them. When questioning your witnesses consider using points of reference to add variety to your questioning and to move the witness along from one episode to the next. For example, 'can you tell us what happened after you saw the car swerve?'

Generally, a leading question suggests the answer, or assumes the existence of a disputed fact. You are allowed to ask leading questions about non-disputed matters. For example: instead of “where were you on the night of the 15th?”, ask “were you at the bar on the night of the 15th?”

Practice by asking a friend;

1) What his or her last holiday was like, without asking a leading question;

2) How the pre-entry exam to bar course was like, without asking a leading question; and

1 Section 140 of the Evidence Act Cap 6

1.8 Unfavorable and Hostile Witnesses

You will, at any early stage in the proceedings, take statements from each of your witnesses. When a witness is giving their evidence through examination-in-chief you would expect them to give answers consistent with their previous statement. However, in some situations a witness does not give the answers expected of them. The witness can then be declared either unfavourable or hostile.

1.9 Unfavorable Witnesses

An unfavorable witness is one whose testimony does not advance the case of the party who called him, despite the witness's best intentions. A witness will be unfavourable if they cannot recall some of the facts about their testimony. If you come across an unfavourable witness you can ask the court for leave for the witness to refresh his memory by reading his previous statement. It is very often the case that cases come to trial many months after the witness has provided a statement. Therefore, it is important that before your witness gives his or her evidence that he or she has the opportunity to read his or her previous statements to refresh his or her memory so that when he or she is being asked questions he or she is familiar with what he or she said in his or her original statement. He or she is then less likely to become an unfavourable witness and will hopefully enhance the strength of your case. If after reading his or her previous statement the witness still cannot recall the facts then you cannot assist your witness by putting leading questions or prompting them. You should instead try to get the witness out of the witness box as soon as possible.

1.10 Hostile Witnesses

A hostile witness is different from an unfavourable one. Whilst an unfavourable witness can be potentially damaging to your case, a more serious situation is having a hostile witness. A witness will be 'hostile' if the evidence they give is harmful to the side calling them and it conflicts with the expectations of that side. A hostile witness will have no desire to tell the truth and support the case of the party calling him. An example of a witness being hostile is a witness who has deliberately changed their evidence since they made their original statement. The party calling this witness can ask the Judge to grant leave to treat them as a hostile witness.

1.11 Open and Closed Questions

You can ask your witnesses a variety of open and closed questions. To obtain the information you require from a witness it will be necessary to use for example closed questions to establish undisputed aspects of the case such as the background and set the scene and to bring out details or emphasise a particular part of the story. This more so because some closed questions can be leading in certain aspects. Open questions are the best in allowing the witness to freely tell their part of the story or to turn their attention to a subject and then ask the witness to talk about that subject.

Your questions should be short and concise so when the judge hears the question and hears an equally short and concise answer, his or her next thought is one of the “W’s.” Your examination should follow that train of thought.

For example, if you ask about a meeting, the listener would usually then start to ask in his or her mind the following questions:

a) When was the meeting held?

b) Where was the meeting held?

c) Why was the meeting called?

d) Who was present at the meeting?

e) What was discussed at the meeting?

f) How long did the meeting last?

g) What was the result of that meeting?

Ask yourself how you would be thinking when you hear evidence about an event. Your own mind would likely then follow this 5W and 1H track. So the questions in court or in an arbitration should follow that track.

Do not leave the witness to do all the talking. Oftentimes when reviewing a transcript in the Court of Appeal, you will see a short question, followed by a half-page answer. If you read a transcript like that then, in my respectful opinion, the direct examination has not been properly carried out. One should never lose control of a witness, and dictating the pace of the evidence is crucial depending on the ability of the judge or Judicial officer either to electronically or manually make notes.

There is no reward for speed. Remembering that judges are mere mortals should be your guiding perspective. Always keep an eye on the judge or Judicial officer before going to the next question. When the judge or Judicial officer is required to look at an exhibit or look at one document in a volume of exhibits, make sure that the judge is at that exhibit before you begin the question related to it.

1.12 A guide to the actual Examination-in-Chief

Trying out witness examination for the first time can be intimidating. You're there to either make or break the witness, with only your skills, case theory, and wit. As Walter Sofronoff QC wrote, it is "a species of unarmed combat"; it's raw advocacy at its most exhilarating. You can spend years learning witness examination properly, but it's always good to start with some of the fundamentals. Here are some top guides to set you on your way.

1.12.1 Start with the Basics

These include skills like speaking clearly and slowly, having good posture and eye contact, and trying to stamp out your 'gremlins' - things you subconsciously say or do while speaking, like saying 'um', or clicking a pen. Using plain English is important, as you're communicating with everyday people. Say " “car” and not “automobile” for example, to save everyone from becoming confused or distracted by your vocabulary.

1.12.2 Be nice to the witnesses

Professor Peter Lyons wrote, "the first aim is to strengthen your client's case by highlighting the good points through the opponent's witness and by putting facts that the witness will agree with..." – and they won't agree with you if you're being nasty!

1.12.3 Learn to develop a case theory

Put simply, that's the version of events you want to prove, summarised in four dot points. It should be your four strongest points that directly address the key elements of the relevant law. Use this to guide your questioning. Most people agree that examination-in-chief is the harder of the two skills. You have to ask your witness questions in a way that enables them to tell their story to the court.

A good examination plays out like a story. When examining your witness, you want people to be totally focused on your witness. Try and ask short, simple questions that allow your witness to tell a story - who, what, when, where, and why. Ask about events in chronological order.

1.12.4 Control the witness's story telling

While the focus isn't on you, you need to remain in control, so the witness says only the evidence you want them to. You can interrupt the witness where it's appropriate to do so. Also, try 'piggybacking' your questions: What did you see at the farm? A herd of cows and some horses. I want to ask you about the horses, where were they located?

1.13 Checklist for an Effective Examination-in-chief or Preparing your Examination-in-Chief

1) Know the theory of your case

a) What are the major issues in the case? (start with your pleadings)

b) What is the theory of your case?

c) What evidence do you require to support the theory of your case?

d) Can some of the evidence be obtained through a Request to Admit?

e) What evidence do you need to rebut your opponent’s theory?

f) What do you want to say in your closing submissions?

g) How will the evidence of each of your witnesses add to your closing submissions?

2) Consider the purpose for which you are calling the witness

a) Can this witness testify to facts that assist you in advancing your case?

b) Are there exhibits that must be introduced through this witness?

c) Is there another witness you are already calling that can testify to the same facts/identify the same exhibits?

d) Can this witness bolster or detract from the credibility of others that will testify?

3) Prepare your witness

a) Before trial, meet with your witness. Review any prior testimony and any documents you intend to introduce through the witness.

b) Discuss with your witness how the process in court will unfold. Describe to the witness who she can expect to see in court – i.e. Judge, Court Clerk, opposing counsel, Court orderly, others.

c) Do not ask the witness to memorize evidence.

d) Do not coach the witness or offer answers to the witness during preparation.

4) Create an outline for your examination

a) What do you need your witness to say?

b) What questions do you need to ask to elicit the necessary information?

c) Consider the order in which you intend to ask the question (chronologically; thematically)

d) Consider questions that may be posed in cross-examination which you can diffuse during examination-in-chief.

1.14 Conducting your Examination-in-Chief

1. Form of your Examination – telling a persuasive story

a) Lead through preliminary, non-contentious areas. For example, “Ms. Jones, you are 32-years old?” “You have been employed as a teacher for 9 years?”

b) Do not ask leading questions on contentious and/or significant issues. It is always better for the trier of fact to hear the story from the witness and not counsel.

c) Organize your questions topically, giving the witness and the trier of fact the opportunity to follow the flow of your examination.

d) Decide whether it is more persuasive to ask questions in a chronological order or by theme/issue. The questions posed to the witness must be presented in some form of order. Do not lurch from topic to topic. This will confuse the witness and annoy the trier of fact. It will also detract from the persuasiveness of the witness story.

e) Use short, simple language when formulating your questions. Do not use overly technical language or “legalese”.

f) Often, simple “who, what, where, when, why” questions will allow the witness to give her evidence in a clear and simply manner.

g) Listen to your witness. Often a witness may give an answer that requires follow-up. If you are not listening, you will miss that opportunity.

h) Use looping techniques to repeat the key theme or answer in a series of questions on an important issue. For example, in a case involving a car accident, where the witness has just answered a series of questions involving her observations of the accident: “After you saw the Honda rear-end the Toyota, who did you contact?” This repeats helpful evidence and provides the witness with guidance as to where you are moving next.

i) Prepare to start and finish strong. Deal with less important and/or more difficult evidence in the middle of your examination.

j) Humanize your witness by asking questions that will elicit empathy. This helps to build the witness credibility and relate-ability.

k) Where appropriate make use of pictures, diagrams or other demonstrative aids. This will assist the witness in giving her evidence and will give the trier of fact a concrete visual, to compliment the witness words.

2) Hazards to Avoid during Examination-in-chief

a) Do not ask your witness irrelevant questions. If the answer it elicits is not important to your overall theme or to rebutting your opponent’s case, do not ask the question.

b) While it is important to neutralize bad facts when possible, do not waste your entire examination-in-chief doing so.

c) Discuss evidentiary issues with your opponent beforehand, so to minimize objections during your examination-in-chief.

d) Do not ask compound or overly complicated questions. This will only confuse your witness and the trier of fact.

(2.0 WITNESS STATEMENTS)

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