A Handbook for Public Prosecutors

32. Examination of Witnesses

Chapter 32 EXAMINATION OF WITNESSES The Order of Examination of Witnesses As is well known, there are three stages in the examination of witnesses. These are: examination-in-chief, cross-examination and re-examination (see ss. 146–247 TEA). Examination-in-Chief This is examination of a witness by the party calling the witness. If the witness is called by the prosecution, for instance, after the witness has been duly sworn or affirmed, the public prosecutor will examine him first. That is called examination-in-chief. The object of examination-in-chief is to let the witness give all material facts which the witness knows and on which the party calling him depends in one way or another in proving his or her case. It is, therefore, imperative that you elicit from your witness all the material facts which he knows about the case. Do not omit to ask a witness in examination-in-chief the answer to which he knows and which is valuable to your case. If you omit it, you may never have the opportunity to ask it again. Get as much from your witness in examination-in-chief as you can. Cross-examination When examination-in-chief has been completed, the accused or his advocate is given an opportunity to examine the witness. This is called cross-examination . The object of cross-examination is to test the accuracy or veracity of the witness’s evidence, to destroy or weaken it, or to obtain evidence which is favourable to the defence case. For this reason, cross-examination is not as restricted as examination-inchief . It must, of course, relate to relevant matters, but it does not have to be restricted to matters raised in examination-in-chief. Where there are more than one accused person, each of them must be given an opportunity of cross-examining the witness. Re-examination This is the examination of a witness by the party calling the witness after cross-examination has been completed. It should be noted that in re-examination, questions must be restricted to matters raised in cross-examination. You may not ask questions in re-examination which would introduce new matters unless with the leave of the court. One more point: there can be no re-examination where there has been no cross-examination. Leading questions A leading question is one which itself suggests an answer which the person putting the question desires from the witness (see s. 150 TEA). Or, as Sarkar puts it: It is a question assuming expressly or impliedly a material fact not testified to, which points out the desired answer to enable the witness to affirm such fact (op. cit. at page 1280). As a general rule, leading questions may not be asked in examination-inchief or in re-examination except with the leave of the court. But leading questions may be asked in cross-examination. The court, however, may permit leading questions in examination-inchief and re-examination when such questions concern matters which are introductory or undisputed, or which have, in the opinion of the court, been already sufficiently proved (see s. 152 TEA). Leading questions are also permitted where the witness is “hostile”. Although leading questions are permitted in cross-examination to test the accuracy, memory, or shake the witness’s credit, etc., questions which mislead the witness by making assumptions which are contrary to fact are not allowed (see Riano Lenalaimer v. Republic, (1960 ) EA 963). 228 Part III Basic Principles of the Law of Evidence Indecent or scandalous questions The court has discretion to disallow any question which though proper in itself , appears to the court to be indecent or scandalous (see s. 160 TEA.). If, for example, in a trial of a case on a charge of rape, the proposed defence to the charge is that the woman consented, and that she is of loose morals, a question such as “Is it not true that you would allow even a dog to go to bed with you so long as it was for money?” may well be disallowed for being needlessly offensive, indecent and scandalous. Hostile witness A witness is said to be hostile, as stated earlier, when by his testimony, conduct , attitude or demeanour, he appears to be biased or unwilling to tell the truth. A typical example is where a known eye-witness to an incident denies in his evidence that he was...