LAWS13010 Evidence and ProofTopic 5 – Examination of Witnesses

Learning Objectives

At the end of this topic, you should be able to:• Describe the importance of proofing a witness, and the

importance of not coaching that witness;• Differentiate between examination in chief, cross-

examination, and re-examination;• Identify the rules binding each type of examination;• Explain the concept of a “hostile witness” and the

implications for examination of witnesses;• State the rule in Browne v Dunn and its implications; and• Identify and use the following types of questions: open,

closed, leading, probing, rhetorical and hypothetical.

The Heart of Advocacy

Examination of witnesses, and particularly cross-examination, are almost fundamental to the public conception of lawyers.

However successful examination of witnesses is a complex skill which must be learned and practiced.

Even among the best lawyers, very few come to be known as the truly great advocates.

Preparation, Preparation, Preparation

Our Witnesses

What evidence will they give?

How will this help?

What risks do they pose?

By failing to prepare, you are preparing to fail ~ Benjamin Franklin

Their Witnesses

What evidence will they give?

How will this harm us?

What vulnerabilities do they have?

Witness Preparation

“Proofing” a witness is the legitimate process of meeting with your own witnesses, prior to the day of the hearing, to assist them to prepare to give evidence. It may involve:

Explaining procedures and expectations on the day; Working through the evidence the witness intends to give; Considering and preparing for questions which might occur in

cross-examination.

Proofing is different to coaching a witness, that is, endeavouring to influence the evidence which a witness intends to give. Coaching a witness is a criminal offence.

R v LSSCriminal Code 1899 (Qld) s.127

The Course of a Criminal Trial

Accused is “arraigned”

and pleads.Jury sworn in

ProsecutionOpeningAddress

ProsecutionWitnesses

Case to answer?

Verdict SentenceRelease

DefenceCase?

DefenceWitnesses

ProsecutionSumming Up

DefenceSumming Up

NG

NG

G

G

Y Y

N

The Course of Testimony

Examination In Chief

Cross-Examination

Re-Examination

Examination in Chief

During examination in chief, the witness is assisted, by the counsel calling them, to tell the court what they know.

Leading questions (answered with a “yes” or a “no”) are not permitted.

The court prefers evidence in the witness' own words.

This rule is not absolute! Leading questions might be used:

To introduce the witness to the general topic (“Were you driving on the Bruce Highway on the night of 25 January?)

To assist a nervous witness to build confidence

To test propositions from previous evidence. (“Mrs Williams said that you are prejudiced against gay people. Is this true?”)

Mooney v James [1949] VLR 22

Cross ExaminationBeloved in Hollywood … difficult in practice!

Purposes: 1. To test the evidence given in chief;2. To show that harmful evidence is unreliable;3. To show that harmful evidence has low

probative value.

Leading questions are allowed.

Questions intended to “torture” a witness by placing them under duress are not allowed.

Improper questions (misleading, confusing, annoying, harassing, intimidating, offensive, oppressive or repetitive) are not allowed.

It appears to us contrary to all rules of evidence, and opposed to natural justice, that the evidence of one party should be received as evidence against another party, without the latter having an opportunity of testing its truthfulness by cross-examination

Lopes LJ, in Allen v Allen & Bell (1894) P. 248 (CA)

The Rule in Browne v Dunn

If you intend, during your summing-up, to contradict testimony given by a witness, you must put “your version” of the evidence to them in cross examination.

Why?

1. It gives the witness a chance to defend their evidence;2. It gives the opposing side the opportunity to provide additional corroboration;3. It gives the witness a chance, if necessary, to add clarification or context to their answer.

Outlined in Allied Pastoral Holdings v FCT [1983] 1 NSWLR 1Authority is Browne v Dunn (1864) 6 R 67

Re-Examination

Re-examination permits the side calling a witness to ask them further questions to clarify evidence which they have given in cross-examination.

Prince v Samo (1838) 112 ER 606

This is particularly important when, for instance, the cross-examining counsel raises issues which were never discussed during examination in chief.

Re-examination is not a free-for-all. Generally speaking, re-examination is limited to matters discussed in cross-examination.

It would not be fair for new matters to be raised in re-examination, because there is no second round of cross-examination.

Objection!

While the court has an over-riding capacity to rule questions to be out of order, in reality it will usually be necessary for the opposing counsel to raise an objection.

By failing to object to a question at the time it is asked, the opposing counsel is impliedly accepting that the question may be asked.

Dealing with a Hostile Witness

A “hostile” witness is a witness who had previously indicated that they would give certain evidence, but who is then deliberately withholding that evidence in an apparent effort to defeat the course of justice.

This is different to a witness who has simply not given the evidence it was hoped they would give.

Having successfully applied to the judge to treat a witness as hostile, the lawyer who called the witness can then refer to their previous statements and, if necessary, cross-examine the witness regarding those statements.

Evidence Act 1977 (Qld) ss. 17-19

This is the only situation in which a lawyer can cross-examine their own witness.

The other side will then also have an opportunity to cross-examine the same witness.

Open Questions

Open questions provide the witness the opportunity to tell a story, on their own terms.

During examination in chief, the ideal process is to use an open question to get the witness started, followed by a sequence of further open questions to keep them rolling:

What did you do on the night of 31 October?

What happened after you got to the nightclub?

Once the two men started shouting, what happened next?

When you followed the bouncer outside, what did you see?

Closed Questions

Closed questions require an answer in just a few specific words.

Closed questions do not allow the witness to tell their story, but they may be validly used in order to allow the witness to clarify some aspect of their evidence, before the next open question.

Can you describe the car you saw? [Open question]

It was a sedan, I'm pretty sure - late model, but it looked like it had been modified, like it had been hotted up

What colour was the car?

Red

What happened next? [Open question]

Leading Questions

Leading questions require a “yes” or “no” answer.

In this situation, the lawyer is effectively the one telling the story; the witness is merely agreeing or disagreeing with the story the lawyer tells.

Often, although perhaps unfairly, the lawyer will treat “no” as though it means “yes”. This is a good time to object.

You went there that night to start a fight, didn't you?

No, no I didn't

And when you got there, you decided the accused was going to be the target of your attack, isn't that right?

No, it wasn't like that!

Probing Questions

Probing questions seek more detail in relation to a previous answer.

Probing questions may be open or closed depending on circumstances.

This is a great form of question when a witness is being evasive.

What happened when you went to his place?

We sat on the couch and spent some time together

When you say you “spent some time together”, what were you actually doing?

At first we watched a DVD, and later we kissed

Did you have sex?

Yes

Rhetorical Questions

Rhetorical questions are not really questions at all.

These are statements disguised as a question, and there is usually no sensible answer that can be given.

If use against you, you should object.

The police officer used his taser, and I fell to the ground. That is when I sustained my head wound. There was no need for him to do it.

Mr Witness, you confronted police with a knife in your hand! What did you expect them to do?

Hypothetical Questions

Hypothetical questions posit a pretend circumstance and ask for the witness' reaction to that circumstance.

Hypothetical questions are not inherently unacceptable, but should be used with caution. They are not a substitute for asking about the actual events at hand.

How did the child react?

He was clearly hurt, but didn't cry - it was strange

How would you expect most children to have reacted?

His ankle was pretty badly twisted, so I'd expect most children to have been screaming

Sneaky Tricks

Here are a few sneaky tricks to watch out for if you observe examination of witnesses:

1. Asking for ever more detail.So, just before the collision, what gear were

you in, and what were your engine revs?

2. Positing a premise.What colour was the car you stole?

3. Post hoc ergo propter hoc.You had an argument with your girlfriend, and

twenty minutes later her car was damaged!

4. Reversing the onus of proof.The burglar alarm sounded, and you were seen

running down the street. If you didn't breakinto the house, then who do you think did?

Review

In this topic, you have learned:• The vital importance of preparation for oral examination;• The process of proofing (but not coaching) witnesses;• The course of a trial, and the course of a witness' evidence;• Fundamental rules for examination in chief, cross-

examination and re-examination;• The importance of the rule in Browne v Dunn;• The process of dealing with a hostile witness; and• Questioning techniques: open, closed, leading, probing,

rhetorical, and hypothetical questions.