Court Trials & Appeal Courts
4. Examination of Witness
Firm / Chambers:
Last updated: 18 Jul 2015
- The next stage in a court trial is the questioning of the first witness to appear before the court and answer questions about the case.
- No prosecution or civil claim can succeed unless it is supported by convincing evidence. The examination of witnesses presents this evidence to the court during a trial.
- The formal name for obtaining evidence from a witness is an ‘examination-in-chief.’ It involves the lawyer asking open-ended questions for the witness to answer.
- The aim of the examination-in-chief is to:
- obtain from the witness a complete, orderly story of what happened in their own natural way with the minimum amount of prompting; and
- get as much information from the witness that is relevant and material to the issues as they can offer.
- When being examined the witness should tell their story of what they saw, heard or experienced in chronological order and make sure it is as detailed as necessary to help prove the case. This does not mean it is necessary to go into minute details that have no relevance.
- Questions that ‘lead’ the witness through their story are generally not allowed during the examination-in-chief.
- Leading questions are questions that effectively ask the witness to confirm a desired or expected answer and they are disallowed because they give the questioning party an unfair advantage.
- This means the prosecution or plaintiff’s lawyer cannot ask their own witness questions which set out what they want the witness to say happened such as “You saw the defendant acting suspiciously at the scene of the crime didn’t you?” or “You saw that the defendant was not concentrating on what she was doing didn’t you?”
- These kinds of questions suggest a “yes” or “no” answer. A more appropriate question would be “What did you do on the night in question?” or “What did you see the defendant doing?”
- Leading questions may be permitted in some strict instances such as:
- when the facts that the witness is relating are not in dispute especially in introducing matters such as the personal details of the witness and their connection with the subject matter of the case; and
- where it is necessary to obtain from the witness an express denial of some allegation that is central to the trial. For example in a sexual assault case the victim may be asked something like “Did you consent?” or “Did you do anything to stop him?” because such a question is simply directing the attention of the witness to a central issue of the case.
- Matters already given in evidence by the witness may also be asked about in a leading way.
- It is usually not considered leading to give a witness a choice of extremes such as “Was the car going slow or fast?” However it is preferable to phrase the question in a more open-ended way that will be less subject to objection by the judge or opposing lawyer such as “How fast was the car going?” or “How would you describe the speed of the car?”
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