The purpose of examination in chief is to elicit from the witness admissible evidence that satisfies your case theory. It should be done in a logical and structured manner, while simultaneously being engaging and memorable for a jury.
Rudyard Kipling in ‘The Elephant’s Child’ said “I keep six honest serving men, they taught me all I knew. Their names are what, and why and when, and how and where and who.” The premise of beginning a question with any of these words is that a witness will give, hopefully, a detailed answer as a result. That may be easier said than done. You cannot pick your witnesses.
Preparing examination in chief is an important reminder that you should already have in mind a case theory and know what you wish to say in your closing address. The evidence in chief of each witness will lay the foundation for those submissions. There is no worse feeling than thinking of a great argument to make to the jury, only to realise you did not ask the necessary questions of that witness to obtain the evidence required.
That reinforces the need to meet your witnesses in advance and confer with them. Explain who you are and why they are there. Apart from professional witnesses, no one wants to find themselves having to give evidence in a criminal trial. The courtroom is a daunting and unfamiliar place. If logistics allow, introduce your witness to the courtroom they will give evidence in prior to them doing so. Let them know the nature of your questions, what you need them to focus on, any inadmissible evidence they should not give, and what cross examination involves. Make sure they have a copy of any previous statements they have made and an opportunity to refresh their memories from those statements. During your conference you might show the witness other exhibits, such as any contemporaneous notes they made, or allow them to listen to any recordings where they have given a version.
Non-professional witnesses will inevitably be apprehensive to some extent. The courtroom is unfamiliar to most. The witness will have their own interests and ego to serve. The better you know the witness the easier it will be to develop questions that are most effective in eliciting the evidence you need despite the unfamiliarity. The more comfortable and familiar your witness is with the process, the better they will be in giving their evidence.
In settling how you will present the evidence in chief of each witness review your witness statement and identify:
a) What evidence you need.
b) What evidence you do not want or is inadmissible.
c) How you are going to ensure the witness gives the evidence you need, and not the evidence you do not.
d) How you put it in the context of your case as a whole.
Every question you ask should have a purpose. That means your role is more than just prompting a witness to parrot what is in their statement. You should not seek to elicit an answer from your witness unless the evidence is relevant and admissible. If the evidence is objected to, and you do not have a reasonable answer as to why it is relevant, then you should not have sought to lead it.
As a prosecutor, your most important, and often first witness, will be the victim. You should utilise the opportunity of evidence in chief to develop their story in a way which logically and convincingly supports the allegations. Stories have a beginning, a middle and an end. Having regard to the same will generally provide a good grounding for how you might lead their account.
Ordinarily, a chronological order for calling witnesses might be the most beneficial course, but not always. Take for example, a domestically violent relationship that ends with a significant act of violence that represents the indicted charge. After establishing who’s who, you might start with the matter that brings you before the court, before asking “was that the only time he was violent to you?” Hopefully that prompts relevant relationship evidence that preceded the event and breakdown of the relationship. Remember, you want to take the jury on the journey with you and not drift off before you get to the evidence that is critical to their considerations.
The questions you ask should be short and simple. Do not include police jargon or legalese. Sometimes you might wish to use piggyback where your question commences with a repetition of the preceding answer, but the instances of that should be infrequent. Plan how you might introduce relevant exhibits into the narrative. Nothing is worse than interrupting a witness who is eloquently recounting an event, to show them a photo of an innocuous location or item.
Having said that, while you should allow your witness some flexibility to tell their story uninterrupted, it is also important to control them. Consider the pitch and style of the questions you ask and use them as a tool in achieving this. Letting your witness go off on tangents, give irrelevant evidence or worse still give inadmissible evidence will cause your jury to be frustrated or lose focus. Or worse, finding yourself facing a mistrial argument that has arisen because your witness said something objectionable and potentially incurable by judicial directions.
For those witnesses who are hesitant, nervous or reluctant, be prepared to prompt them to expand on their evidence. The start of their evidence can provide an opportunity to make them feel more comfortable. A lot of the preliminary matters tend to be uncontroversial – “What is your name? Where were you living (at the relevant time)? Do you know the accused?”- and have the additional effect of allowing the witness to ease into their evidence.
There can sometimes be pressure to rush through evidence in chief for the sake of efficiency and getting to the end line. Once you have ticked all the necessary boxes, then your ‘job’ is done, and you can sit down. But remember, context matters. The nature or type of a disclosure for example, might depend upon the relationship those people have with each other, the location of the conversation, the circumstances that prompted it and if there were time pressures around it. Those things that surround the key piece of evidence can be just as important. Such details, as would be expected, can add to the veracity of that witness’s testimony.
As an adjunct to what is stated above, make sure witnesses do not relate conversations in summary form. A good example of this is preliminary complaint evidence “What did X tell you, using the words said as best as you can remember them. That is, what X said and what you said.”
You should consider how you intend on concluding the witness’s evidence. Consider what message you want to leave the tribunal of fact with, and do not let the evidence just taper off. Sometimes too, less is more. The importance of a witness’s evidence should not be diluted by leading marginal or trivial detail.
The guiding rule in evidence in chief is “Don’t lead”. [1] But like most things, that is not an absolute. Frequently there will be several parts to a witness’s evidence that are not in contest and in such cases opposing counsel will often consent to you leading a witness in respect of such matters.
Further, if you have a particularly difficult witness, or one likely to volunteer prejudicial inadmissible evidence, it might be appropriate to agree with the opposition that portions of their evidence will be ‘led’ to avoid such an event. It is prudent to resolve such matters, if there is doubt, with opposing counsel prior to calling the witness. If it cannot be resolved by agreement, you might consider raising such a course with the Judge in advance, particularly if it surrounds matters in contest at the trial.
Final advice – a script of prepared questions and answers does not work. Why not? Only you have the script. Your witness does not, and they will inevitably go off script. You will end up staring at your now useless question (and answer) trail, panicking about where to go and what to ask next. It demonstrates the most important tool when eliciting evidence in chief. Just as you expect the arbiter of fact – the jury – to do, you too ought to listen carefully to each answer the witness provides. A particular and perhaps unexpected answer may require you to engage in a further line of questioning, with a failure to do so potentially having significant adverse consequences. Also, if you are not interested in your witness’s answers, why would they be?
[1] A leading question is a question asked of a witness that directly or indirectly suggests a particular answer to a question or assumes the existence of a fact, the existence of which is in dispute in the proceeding, and the witness has not given evidence of the existence of that fact prior to the question asked.
