Examination in Chief
What questions are not allowed during Direct Examination?
When conducting the examination-in-chief, questions are asked in a certain way. If not asked with caution, it will usually lead to the other party objecting, which can interrupt the flow of the evidence and detract from the witness’s impact.
Leading questions
During examination-in-chief, evidence must be elicited without any leading questions. Leading questions are questions that suggest an answer, for example ‘Was the woman short?’ or ‘Was she wearing a black jumper?’ Instead, the attorney asks open questions that do not ‘put words in the witness’s mouth’. For example, ‘How tall was the woman?’ or ‘What was she wearing?’
Questions that are not relevant
Evidence in chief must be limited to matters that are relevant to the proceeding. If the attorney wants to pursue a line of questioning whose relevance is not immediately apparent, they should indicate to the court the reasoning behind their line of questioning and explain why it should be allowed.
Hearsay
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.
Opinion
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).
Difference between unfavorable and hostile witness
Unfavourable witnesses: 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 are removed from the witness box.
Hostile witness: 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.
Rationale behind examination-in-chief
The purpose for the conduction of examination-in-chief is to make the witness testify or give evidence for what they have been called to prove. The objective is to get all possible facts in their knowledge in order to make the best possible case for one’s party. The examination must be limited to these material facts within the witness’ knowledge only and no leading questions may be asked, except as permitted by the court, often in the exceptions of preliminary matter, undisputed matters, on account of the witness being a child or having trouble with their memory, etc.During examination, the counsel must understand the nature and temperament of the witness as well as the context of the case well enough to judge which questions will irritate or intimidate the witness. The witness can only be made to answer by asking calmly and comfortably, without coercion. Further, the witness can frame the answer in a way that is in their own manner of expression. The witness also does not have to answer any questions that may incriminate them, for instance, “had you taken any drugs that day?” This is known as privilege of non-incrimination.
During examination-in-chief, leading questions are objectionable. This is because presumably, a witness that has been called by oneself will be one that is favourable to one’s case, and therefore, agree with a suggested answer. Therefore, the use of leading questions lessens credibility as well as the weight to be given to the response (by the jury or the judge).
During cross-examination, the witness being interrogated is one who has previously been called by one’s opposing counsel; therefore, there is no such concern. That is why leading questions are not objectionable during cross-examination.
What research says about examination
According to a 2020 study by Gous and Wheatcroft, although leading questions are permitted during cross-examination, they can undermine the accuracy and completeness of evidence presented in court. There has been some research in the field of cross-examination and certain reforms have been suggested. However, these are still far from being implemented.
A study of jurors and witnesses by Olaguez and Klemfuss in 2020 found that during a direct examination, child witnesses were perceived to be more credible than during a cross-examination. Moreover, participants were more likely to convict the defendant and could report the details of the case more accurately when a direct examination had been conducted. Therefore, it is possible that the manner in which a witness is examined influences jurors’ perceptions as well as the sentencing.
A 2021 paper by Kendall discussed the way in which many techniques in forensic science are experiencing a “reliability revolution”. It argues that this revolution must be extended to the technique of cross-examination, one that has been under a lot of scrutiny as of recent. While this paper argues to reform cross-examination methods in a way that reliability of the testimony elicited from witnesses can be improved, others (Caruso, D., 2012) argue to disallow leading questions in cases of child testimony for sexual offences committed upon minors completely. However, these arguments are mostly relatively new and the focus of much debate.