Examination in Chief of a Witness

Firm 15 B Class of 2017 KSL

WHAT IS EXAMINATION IN CHIEF?

Examination-in-chief refers to the process of establishing your case by calling witnesses to support the elements of your case. It is the first process of adducing evidence in Court from a witness under oath.

The main objective of examination-in-chief is to obtain testimony in support of the version of the facts in issue or relevant to the issue for which the party is calling the witness contends. Other objectives of examination-in-chief include the following:

i) To obtain evidence presented to court that is;

¢  legally sufficient to meet the burden of proof;

¢  clearly understood and remembered;

¢  convincing;

¢  able to withstand cross-examination; and

¢  anticipatory and contradictory to evidence anticipated from the opposition

¢  admissible

ii) To present a logical, complete and coherent theory of your case

iii) To fill in gaps in the evidence and attempt to explain any inconsistencies;

iv) To shut down potential cross-examination thereby limiting the exposure of witnesses.

v) Minimizing the possibilities of a defense being supported through cross-examination of witnesses

Examination in chief is conducted by;

In civil cases, the plaintiff/the plaintiffs advocate has a right to begin unless the Court directs otherwise.

In criminal cases, the prosecutor/advocate prosecuting has the right to begin

STATUTORY BASIS OF EXAMINATION-IN-CHIEF:

In civil cases;

Order 18 Rule 1, Civil Procedure Rules, 2010 states that the plaintiff shall have the right to begin unless the court otherwise orders.

O18 Rule 2, Civil Procedure Rules, 2010 states that, unless the court otherwise orders, on the day fixed for the hearing of the suit, the party having the right to begin, in this case the plaintiff, shall state his case and produce his evidence in support of the issues which he is bound to prove.

Further, Section 145(1) of the Evidence Act defines examination in chief as  the examination of a witness by the party who calls him section 146(2) of Evidence Act requires that examination-in-chief must relate to relevant facts. It must deal with the issues in dispute and anything that might assist the court in coming up with a just decision

In criminal cases

Section 151 of the Criminal Procedure Code provides that every witness in a criminal matter shall be examined upon oath administered by the court

In R v Russell-Jones (1995) ALL ER 239  the following principles were stated:

The prosecution should normally call all the witnesses who give direct evidence of the primary facts of the case unless there is good reason to regard the witness evidence as unworthy of belief. It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case and which are marginal.

The burden of proof is on the Republic through the prosecutor. The accused do not have to prove their innocence, instead the republic must provide evidence to convince the court of the defendants guilt. The court reviews evidence presented by the prosecutor and decides whether there is sufficient evidence to require a defendant to stand trial.

In Prabulal v R (1971) EA 52 it was held that the burden of proof is on the prosecution and so it opens by calling witnesses. Even in those instances when a statute casts the burden of proof on the accused person, the state must first lay some factual basis by calling witnesses before the burden of proof shifts to the accused person.

THE TECHNIQUES OF CONDUCTING A PROPER EXAMINATION IN CHIEF

The basic rule is that the witness may not be asked leading questions, and although a witness may refresh his memory by referring to documents previously prepared by him, he cannot usually be asked about his former statements with a view to their becoming evidence of the facts stated or in order to demonstrate his consistency.

In addition, a party may call someone else to contradict a witness who has given unfavourable evidence with regard to a fact in issue or relevant to the issue, but he may discredit his witness only if the judge considers that witness to be hostile.

Therefore, the techniques in examination-in-chief may be not to ask leading questions, to refresh a witnesses memory, and to rebut a hostile witness.

Keeping the court’s attention

The presentation and delivery of the evidence is what will keep the judge/magistrate interested hence persuasive. Trail advocacy is about story telling hence the advocate by conducting his examination –in –chief of the witness should keep the story as interesting as possible to attract courts attention. The advocate should organize on how to conduct the examination-in-chief.

The advocate should also be able to choose a witness who is best able to tell the story. Clear, simple and concise questions should be asked to the witness

Leading Questions

The general rule is that they should not be asked here. This rule is codified in Section 150(1) of the Evidence Act, Cap 80 that states that they can only be asked if they are not objected to and with the permission of the court.

Although there are exceptions found under Section 150(2) Evidence Act, which states that the court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved.

Section 149 of the Evidence act defines leading questions as ‘any question suggesting the answer which the person putting it wishes or expects to receive, or suggesting a disputed fact as to which the witness is to testify, is a leading question’

Therefore, a leading question may thus be defined as any question that undermines or diminishes the weight the court may give to the answer elicited from the witness by such a question.

An example of a leading question is one structured as a statement with a ‘tail’ at the end for instance in the Desmond Peters case, such a question will be “You saw Desmond peters steal Louisas bag- didn’t you?”

MANNER OF TESTYFYING

When starting his examination in chief, the advocate should ensure that he understands the story his witness is going to tell. He should also have prepared a witness sheet for the witness testifying. Such should indicate the elements of the case the advocate wants his witness to prove.

The advocate should then begin his questions using the Date -Time –Place- Action formula. Alternatively, the advocate should ask the ‘Why?, Where? Who? How?’ questions

The key in asking questions in examination in chief is to remember that the advocate is a storyteller and that he should tell a convincing story to the judge. He therefore should try as much as possible to paint a convincing picture in the mind of the judge.

Transitional questions

The advocate should use transitional questions, which may refer to questions asked by an advocate that lead the witness from a given starting point to a predetermined end point. For instance, the Advocate may say to the witness “let me take you back to the events of this case”

Open ended Questions

So as not to lead the witness, the advocate should use open ended questions which are structured in such a way as to enable the witness answer in narrative. The court wants to hear the witnesses’ version of events as opposed to the version of the advocate.

Closed Questions

The advocate should avoid asking closed questions which limit the scope of the answers the witness may give such reduce the authenticity of the witness statement n the eyes of the Court

Scandalous Questions

Section 159 of the Evidence Act prohibits the Advocate from asking such questions if they aren’t relevant to the court

Use Plain English

During examination-in-chief the advocate should use plain and simple English when asking the witness questions. it is not an opportunity for the advocate to showcase his legalese in court.

Refreshing the memory of a witness (section 167 of the Evidence Act)

If your witness cannot remember a portion of his evidence when testifying, you may ask him if he wishes to refresh his memory from his statement (or note book or other document).  The refreshing of your witness’s memory may be crucial to your case

The examination must NOT be conducted in an attacking manner

Attacking is only allowed during cross examination. But one cannot do that to his own witness. However, if your witness turns hostile, then you can always ask the court to declare the witness a hostile witness and once the court does that, you can then proceed to attack

If the witness is NOT an expert witness, then you CANNOT lead opinion evidence