EXAMINATION OF CHIEF AND CROSS EXAMINATION

EXAMINATION OF CHIEF AND CROSS EXAMINATION

With examination in chief the witness is allowed to tell their side of the story. In cross-examination you do not want the witness to tell the story. You indicate the point you wish to make and put it to the witness. Leading questions therefore are used in cross-examination. Leading questions provide for effective cross-examination because the facts are supplied by the advocate instead of the witness and the advocate has most of the control in order to get to the point they want to make. During cross-examination you do not want a witness to tell their story, you want them to verify the particular matters that you put to them.

PURPOSE OF EXAMINATION IN CHIEF

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.

“A party who calls a witness examines that witness in chief. Evidence adduced in examination-in-chief is generally designed to serve one of the following purposes, which are not mutually exclusive: build or support the calling party’s case; weaken the opponent’s case; strengthen the credibility of the witness; (or) strengthen or weaken the credibility of other witnesses.

“There are constraints on the form of the examination-in-chief, most importantly in the rule against leading questions.”

Cross-Examination: The strenght Of The Advocate

THERE is no gainsaying the fact that the rule of evidence dictates the ruling of the court. Where it is a criminal case, the lawyer must canvass his case upon strong evidence to prove beyond reasonable doubt that the man in the dock committed the offence in the charge sheet. A civil cause in fact calls for more technical expertise as the court balances the evidence of the parties upon the imaginary scale of probabilities.

It is trite that a sworn witness may give evidence before the court in three main forms; examination in chief, cross examination and re-examination.

A request of re-examination from the bench usually comes with a ‘nil’ from the bar, this is because most often the evidence jobs are mostly done between examination-in-chief and cross-examination. Frontloading procedure (especially in the superior courts of records) has however made the former a mere court formality particularly in civil matters as all the witness does in examination-in-chief is to adopt his earlier written statement on oath.

This leaves us with cross-examination; an art which reveals the worth and wit of a good trial lawyer and which nature reflects and sustains the advocacy beauty of the profession – so much so that when it is cross-examination, the court opens the wide floor for the trial lawyer until he informs the court that “that will be all for this witness.”

The art of cross-examination is made in the open court where lawyers churn out brilliant questions from the blue without the aid of law texts or law reports and it is learnt in the courtroom as the junior wigs see a hitherto bad case turn good and a supposed strong case dies with the answers or silence of an untruthful witness. Laymen in the court’s gallery also enjoy the session – cross-examination makes them go to their respective home with the legal- phrase-gift of “I put it to you.”

In an adversarial trial procedure like ours, cross-examination is ultimately employed in locating a witness’s weak point and exploiting it to favour the cross examiner in the proceedings to show that a witness’s evidence is unworthy of belief by reason of bias, interest or lack of honesty or lack of knowledge of the events to which he testified. It is used in damaging material facts of the examination in chief so as to weaken it and thereby reduce the weight attached. It is further used to put across the case of the party cross-examining.

Indeed, nothing scares a layman (especially where he is not a party to the case) in court proceedings than his term of minutes or hours in the witness-box under the brimstones of a trial lawyer’s cross-examination. His soul is shaken as the lawyer attempts to impeach his credibility and somehow it usually gets to his physical self – it is not strange to see experts quiver as they make efforts to answer a question drawn by lawyers from the deep abyss of their areas of expertise.

Cross-examination in the case of an expert is even more interesting as it is in this aspect that the lawyer’s appellation as a ‘learned man’ come to bare. The purpose of cross-examination here is to discredit the expert’s qualification and expose him as unreliable, incompetent and ignorant of his chosen field of expertise. A lawyer can technically achieve this in view of the fact that being an expert is strictly a matter of fact and of evidence –a fact that A is a medical expert in B’s case does not mean A will be readily accepted by the court as a medical expert in C’s case – if upon cross-examination, the trial lawyer in C’s case is able to impeach the professional credibility of A.

It is worth mentioning that every witness summoned to court or willfully accepts to give evidence in court is under an obligation to give the true account of the facts of the case as he or she knows. This obligation of truth is further covered by the presumption of the court that the witness who has affirmed or sworn on oath has stated the truth. The ‘otherwise’ of this presumption can only be sustained under rigorous cross-examination. Cross-examination therefore allows the court to detect deliberate falsehood in the testimony of the witness as it is or will be the intent of the lawyer cross examining such witness. In other words, it helps discourage the commission of the criminal offence of perjury in court.

Also if a witness tells only a part of the truth and the part omitted is favourable to the party who has called him or her, cross examination can be used to draw the attention of the witness to the matters omitted. If the whole testimony is false, then the cross examination can expose such witness. This is done by questioning him as to his means of knowledge, his disinterestedness and other matters calculated to show a want of integrity or veracity, if there’s reason to believe the witness is prejudiced, partially or willfully dishonest.

Lawyers actually cross-examine opposing witnesses through the use of leading questions – leading questions are those which suggest the answer. They are basically disguised statements of facts coming from the lawyer to the witness who is squeezed into a corner to answer a definite “Yes” or “No”. “You saw my client sitting on the bed, correct?”

One other twist is that a party who has called a witness could turn around to put such witness into the box and ask him leading questions. This is done where the lawyer has already applied to the court and the court has so granted the application and declared such witness as a hostile witness. A hostile witness is a witness at trial whose testimony in examination-in-chief is either openly antagonistic or contrary to the legal position of the party who called the witness. Some factors like inducement or threat could be responsible for the sudden hostility of a witness who is meant to give a testimony favourable to the party who has called on him or her, or at least a truthful account of the facts of the case to the best of his or her knowledge.

With the popular assertion that the sky is the limit for a cross-examining lawyer, it seems as though cross-examination is a sole-party session, but it is not. It should be noted that the wide intention of giving a trial lawyer such a great liberty in the conduct of cross-examination is to find truth through his questions and to attain justice through his cross-examination. It is for this reason that an opposing counsel yet has a stake in the exercise – that much as his or her witness must truthfully answer questions put across to him or her by the cross-examiner, the witness also deserves some degree of protection from the court.

This protection is recognized by the Evidence Act in instances where questions asked relates to a matter not relevant to the proceedings except in so far as it affects the credit of the witness by injuring his character, the court shall decide whether or not the witness shall be compelled to answer it and may if it thinks fit, warn the witness that he is not obliged to answer the question. In addition, indecent or scandalous questions cannot be asked, so also are question which are needlessly offensive or questions which are intended to insult or bad character of the witness.

In sum, it is agreeable that a lawyer cannot give evidence in a case he is conducting.

But cross examination offers that rare and technical privilege for a good trial lawyer to testify without being sworn or taking the witness chair – it is an avenue for the lawyer to step to the forefront, and focus the attention of the court on what he or she has to say. In fact, in conducting an effective cross examination, a trial lawyer can be his or her client’s best witness.