4. Examination in Chief
| Author | David M. Paciocco - Lee Stuesser |
| Profession | Justice of the Ontario Court of Justice - Professor of Law, Bond University |
| Pages | 416-420 |
Page 416
Most evidence is presented in the form of oral evidence. Oral evidence, or testimony, is obtained from witnesses through the answers they provide to questions posed by the lawyers. The questions are not evidence. Only the answers are, coupled with as much of the question as is necessarily incorporated into the response of the witness. For example, if a lawyer says "I understand you are eight years old" and the witness replies "yes," the testimony of the witness is that she is eight years old.
Witnesses are not simply invited to take the stand and tell their story as they see fit. Questions are used to structure the presentation of evidence, to keep the information the witness provides relevant, to help ensure that only admissible evidence is given, and, for strategic purposes (subject to the ethical limit that counsel cannot attempt to mislead the court), so as to allow a party to be selective in the information that is sought from the witness.
"Examination in chief," or direct examination, as it is called in the United States, describes the phase in the testimony of a witness where that witness is being questioned by the party who has called her. It can also describe the method of questioning that the party calling a witness is entitled to use under normal circumstances.
The party calling a witness should generally use open-ended as opposed to leading questions. Although the answers to leading questions are not inadmissible, the fact that they were obtained by leading questions may affect their weight. There are two kinds of leading questions. The first kind suggests the answer to the witness. The second kind presupposes the existence of a fact not presented by that witness in evidence. This second kind of leading question is never permissible unless the presupposed matter is not contested. There are numerous situations where the first kind of leading question is appropriate. These include
· introductory or undisputed matters,
· the identification of persons or things,
· the contradiction of statements made by another,
Page 417
· complicated or technical matters,
· where leave has been obtained to cross-examine a witness as adverse or hostile,
· where the witness is having difficulty answering the question and leave has been obtained to lead the witness,
· where the question will refresh the memory of a witness and leave has been obtained to lead the witness, and any other case where leave has been obtained to lead the witness, in the interests of justice.
It is what the witness has to say that is of importance, not what the lawyer wants the witness to say. Often witnesses called by a party will be sympathetic or favourable to that party. This can cause them, wittingly or not, to provide answers consistent with the express or implied suggestions of that party’s lawyer. Even where witnesses are truly neutral, the lawyer who has called them will typically know what information they have to offer and may be inclined to control unfairly the evidence they provide. Limits are therefore placed on the way that questions can be asked by the party who has called a witness. In particular, the lawyer is to ask open-ended questions. For example, "Who was with you?" "What happened next?" "When did you first notice that?" "Where were you at 8:00 a.m.?" "Why did you go there?" "Could you please describe the man you have just referred to?"
Open-ended questioning...
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