Examination in chief Part 6

Examining Witnesses in Trial Technique

1. Varying the Form of Questions

  • Importance of Question Variety: It is crucial to mix the types of questions posed to witnesses. This includes:

    • Short, open-ended questions.

    • Focused questions that center on specific details.

    • Explanatory and follow-up questions when necessary.

1.1 Example Scenario

  • Witness Evidence: A witness reports an encounter with the defendant.

    • Q: What did the defendant do when he stopped you?

    • A: He stuck a gun in my face and told me to give him money.

    • Q: What did you do then?

    • A: I handed over my wallet.

    • Q: Mr. Harris, what exactly did the defendant take from you?

    • A: He took about $80 in cash, my Visa card, my driver's license, and all other identification cards I keep in my wallet.

  • Effective Follow-up: If a witness provides a strong answer, use it in subsequent questions to reinforce their testimony.

    • Q: After the defendant stuck a gun in your face, what were the exact words he used?

    • A: He said, "hand over your wallet mate".

    • Q: After he said, "hand over your wallet mate", what did you do?

    • A: I took my wallet out of my breast pocket and gave it to him.

  • Caution on Loop-back Questions: Use sparingly, as frequent loom-back questions may annoy the judge and jury, and could suggest leading behavior.

2. Ensuring Clarity and Understanding

  • Clarify Unclear Answers: Witnesses may use technical terms or express confusion. The goal is to clarify for the jury immediately.

2.1 Example Questions for Clarity

  • Q: I’m sorry Mr. Kumari, I didn’t follow you there. Where were you standing when you saw the accused strike Ms. Smith?

  • Q: Dr. Jacks, what exactly is a phlebectomy?

  • Q: Professor Casey, you used the term MRI. What does MRI stand for?

  • Jury Engagement: Immediate clarifications are appreciated by the jury and help maintain understanding without embarrassing the parties involved.

3. Volunteering Weaknesses

  • Strategy of Disclosure: It is important to volunteer weaknesses during examination-in-chief to neutralize their potential impact if raised during cross-examination.

    • Considerations Before Disclosing:

    • Will the weakness be more damaging if exposed during cross-examination?

    • Is the opposing counsel aware of it?

    • Does the opposing counsel have the skill to effectively reveal the weakness?

    • Can the weakness be presented in a way that mitigates damage?

  • Placement of Weakness: If a weakness is to be voluntarily shared, it is best to integrate it into the middle of the examination-in-chief, to allow a strong focus on positive aspects before and after the disclosure. This approach leverages the primary and recency effects in memory processing by jurors.

3.1 Best Practices

  • Start with a positive impression.

  • Disclose unfavorable information strategically.

  • Conclude with another positive note.

4. Use of Exhibits

  • Enhancing Testimony with Exhibits: Exhibits play a crucial role in underscoring key facts during examination-in-chief. They ensure the jury understands and remembers significant details.

4.1 Effective Timing of Exhibits

  • General Approach: Use exhibits after the witness has given substantial oral evidence to reinforce their testimony.

  • Example in Personal Injury Case: An eyewitness to an accident describes the scene first, followed by exhibits such as diagrams or photographs which support and enhance the oral testimony. This technique is elaborated further in Chapter 5.

5. Active Listening and Engagement

  • Listening to the Witness's Answers: It is vital to pay attention to the witness's responses during both examination-in-chief and cross-examination. Doing so also portrays attentiveness to the jury.

5.1 Benefits of Appearing Interested

  • An engaged demeanor can positively influence the witness, ensuring that their responses are sincere and not rehearsed. Maintain eye contact to keep both the witness and jury engaged.

6. Conduct Protocol for Counsel

  • Physical Conduct Rules: In Australia, counsel must conduct examinations from behind the bar table and must ask permission from the presiding judge to approach either the witness or jury. Permission should only be sought in special circumstances, such as for demonstrative purposes.

7. Structuring Strong Openings and Closings

  • Memorable Beginnings and Endings: The principles of primacy and recency dictate that jurors remember the first and last things they hear most strongly. Thus, both the opening and closing of an examination-in-chief should be impactful.

7.1 Traditional Openings**: Avoid standard, stilted openings that don't address the jurors' primary curiosities, such as the witness's identity or relevance. Instead, approach with:

  • Example:

    • Q: Your name is Abdul Ahmad?

    • A: Yes.

    • Q: You were working at the Shell petrol station on the Stuart Highway near Hickman Street on 6 September 2017?

    • A: Yes, I was.

    • Q: That was the night the petrol station was robbed?

    • A: Yes.

7.2 Importance of Ending Strong**: The last question should emphasize a key fact related to the central issue, remaining in the jurors’ memory:

  • Example:

    • Q: Ms. Reichardt, at the time the defendant’s car entered the intersection, what color was the traffic light for Daley Street?

    • A: It was red.

    • Q: [Pause] I have no further questions.

  • Example of Impactful Closure:

    • Q: Since the accident, have you been able to return to your job as a mechanic?

    • A: No.

    • Q: Have you been able to find other work?

    • A: No.

    • Q: Have you been able to support your family?

    • A: No.

    • Q: Your Honour, I have no further questions.