Trial Advocacy- Examination-in-Chief

What is the examination-in-chief?

 This is the primary questioning of a witness during a trial. The advocate who calls the
witness asks specific question that provide the foundation of the case.

How to conduct and effective examination-in-chief

 You need to identify the issues relevant to facts in the case, as well as the evidence
that you need to make your case. You then need to identify which witnesses;
documents or other evidence is available to prove it. If you have documents or
tangible evidence, identify which witnesses can authenticate the evidence to make it
admissible.

 Think about the case you want to present and what you will need to ask your client
and any relevant witnesses in order to be able to prove it.

 Look at the pleadings and any answers to interrogatories, which may have been
obtained to identify the areas of contention. To be able to derive as much support
for your case as possible from any given witness prepare a list of topics and if
necessary even a list of some of the important question you will want to ask your
client or witness before calling them into the witness box.

 Establish a rapport with your witnesses, and explain to them how the court operates
and what will happen in the witness box.

 Evaluate the character and strength of your witness and determine what sort of
effect they are likely to have on the judge. If you think the judge is likely to be
impressed by a particular witness you can allow that witness to elaborate somewhat
in their evidence so that they make the most favourable impression.

Objectives of the examination-in-chief

 To ensure that the evidence present in court should be legally sufficient to meet the
burden of proof.

 The evidence given should be understood and remembered.

 The evidence should be convincing.

 The evidence should be able to stand cross-examination.

 It should be anticipatory and contradictory of the evidence that the opposition will
present.

 The witness must be persuasive and credible.

 Present a logical, complete and coherent theory of your case.

 Legal requirements for an examination-in-chief

Competency of witness

 Your witness must be competent to testify. To qualify as such a witness must have:

o Understanding of the nature and obligation of the oath or affirmation to tell

the truth

o Perception (knowledge) of the relevant event

o Recollection (memory) of the relevant event

o Ability to communicate.

Relevance of your witnesses’ testimony

 The witness testimony must be relevant. Relevant evidence is evidence that has
some tendency, however slight, to make the existence of a fact or consequence to
the case more or less probably than it would be without it.

Authenticity of matters of evidence to show that the item in question is what its
proponent claims it is.

 Matters of evidence must be authenticated. You authenticate an item of evidence

by making it prima facie showing that it is genuine.

Proper evidentiary foundation or predicate for the admissibility of the evidence

 Certain items of evidence require special foundations to establish admissibility. E.g.

if your evidence is hearsay and thus, presumably inadmissible prima facie, but will
be requires to establish its admissibility under one of the hearsay exceptions.
 Techniques of conducting the examination-in-chief

Level of detail

 This involves extracting information from the witness without leading them, and can
be done using the following rules:

o Precision- be precise and to the point when seeking details, and avoid a
peripheral approach to matters. Go for the issues at hand

o Take things chronologically- it is easy to settle the witness if you start at the
beginning, proceed to the middle and go through to the end. However when
a particular detail is not clear let it go for the first time the re-visit it to avoid
the same issue being raised at cross examination.

o Be exhaustive in all matters to your case and leave no room for new issues
having to be unearthed during cross examination as this will only prove to
be detrimental to the case and at times question the credibility of your
witness.

 In the case of an expert witness do not go beyond the script. Always remember that
your expert witness is a professional in a different field to you so let him be the boss
and run the show.

 Prior to examining an expert witness, let him display his credential to the court. This
explains his credibility and clears the air as to the admissibility of his evidence.

Starting and stopping a witness

Starting

 The exact point at which one should ask a question will depend on the issue in which
the advocate would want to prove, the nature of the case and the witness testifying.

 It is important to start by asking the witness to properly identify themselves to the

court, and in some cases their expertise, background or occupation prior to
commencement of the suit.

 As far as explaining facts leading to the fact in issue, the advocate should start asking
questions pertaining to the facts as far back or related to the fact in issue. This will
give an overall background to the case. However, not all facts need to be narrated,
but only those pertinent to the fact in issue.

Stopping

Counsel may intervene:

 When the witness is divulging information which is damaging to the case. In such a
situation the counsel may ask questions aimed at toning down the damage caused.
Such questions may take the form of a point of reference question to clarify what
the witness said, or to enable him to explain in greater length what they meant.
  When the witness is not specifically answering the questions directed at him. In such
a situation counsel will have to either repeat the question again or reframe the
question in order for the witness to properly comprehend it.

 When a witness seems to be digressing, counsel may take two approached aimed at
stopping the witness. They may either as a transitional question, by asking a totally
different question with the objective of stopping the witness from continuing with
the path they have taken; or they may politely interrupt by asking them specific
questions, so as to bring them back on course.

Forms and order of questions

Leading question

This is one which suggests or tends to suggest the answer. There are two technical rules
that apply to leading questions:

 The general rule is that counsel is forbidden from using leading questions when
examining their own witness. However there are four exceptions to this:

o Leading questions by consent of your opponent

o Some things are so obvious and incontrovertible everybody knows them

to be true. In such a case you can lead this as there is no risk involved.

o Where you want the witness to deny something you have no choice but
to use a leading question

o Formulating the question- the basic way of framing a non-leading

question is to think of the answer you wish your witness to give, then
omit any reference to the answer when framing the questions.

The open ended question

This question doe not limit the scope of the answer. It will usually lead to the witness
giving a narrative answer.

The closed question

This is the question that limits the scope of the answer. It is particularly useful when you
are seeking to elicit a particular piece of information or detail from a witness.

The transition question

This is a means of moving the witness from one piece of evidence or topic to another e.g.
“I would now like to turn to your relationship with Mr. X”. It is a useful way of structuring
the testimony, controlling the witness and pruning irrelevant details at the same time.
The point of reference question

 This is a method of including in your questions a fact or facts which have already
been elicited from the witness. It provides a context for the question and is a
useful technique for emphasizing an important fact, clarifying evidence, obtaining
greater detail from witness, controlling the witness and or providing a transition.

o “what happened directly after you hear X scream” – emphasis detail

o “when you said he left, to whom are you referring”- clarification

Refreshing the memory of the witness during trial

 this is the act of enabling a witness to recall a part of their testimony or even the
whole testimony they are to give during the trial process. In such instances, it has
been recognised that witnesses need something to jog their memories, and
consequently the law allows an advocate to show the witness anything that would
serve that purpose.

Importance

 A witness who testifies from a refreshed memory is more persuasive and credible
than a witness that cannot remember the information

 By attempting to refresh a witness’ recollection, you can lay down much of the
foundation to introduce the document if the witness’ memory cannot be refreshed.

Toning down weak points

 In other words, this is the anticipation of the problem areas in your case. Such
problems should not be disclosed.

 It is a good tactic to bring out weak points during the opening statement and
examination-in-chief rather than risk damaging impact in cross-examination.