LAW4323 Chap.4 Examination of Witnesses
Examination of Witnesses
Witness examination has three stages with different functions. Examination-in-chief elicits the calling party's evidence, cross-examination tests issues and credibility, and re-examination clarifies matters raised in cross-examination. Leading questions, unfavourable witnesses, prior inconsistent statements and improper questioning each require a distinct statutory route and procedural consequence.
What this chapter covers
- 01
Examination-in-chief
- 02
Leading questions
- 03
Memory and statements
- 04
Unfavourable witnesses
- 05
Cross-examination
- 06
Re-examination
Worked example · free
A witness changes an identification
- 3Assess section 38 leave.
- 1Put and prove the prior statement.
- 1Separate credibility and truth uses.
Key terms
- Leading question
- A question suggesting the answer sought.
- Unfavourable witness
- A witness falling within the section 38 category.
- Prior inconsistent statement
- An earlier representation inconsistent with testimony.
- Re-examination
- Questioning confined to clarifying cross-examination.
Examination of Witnesses FAQ
Can re-examination introduce a new topic?
Ordinarily it is confined to explaining or qualifying matters arising from cross-examination. It is not another opportunity to rebuild examination-in-chief or introduce an unrelated evidentiary case.
Why put a contradiction to a witness?
Fairness requires a witness to receive the substance of a contradictory version before counsel later asks the fact-finder to reject that testimony on the disputed point.
Is an unhelpful witness automatically unfavourable?
No. Apply section 38 to the specified circumstances. An incomplete account or disappointment alone does not necessarily establish the statutory category or justify leave for cross-examination.
Exam move
Revise witness examination as a controlled sequence. Draw three columns for examination-in-chief, cross-examination and re-examination, then place each proposed question in the stage where it is asked. Record the stage's function, whether leading form is permitted, and the statutory control that may intervene.
For examination-in-chief, rewrite leading questions as open prompts and decide whether the suggested answer is genuinely necessary for an introductory or undisputed matter. For memory problems, distinguish refreshing a witness from tendering a previous representation.
When the calling party is surprised, identify the exact evidence that is unfavourable, the prior inconsistent statement or the failure to make a genuine attempt to recollect before invoking section 38. Do not use hostile as a substitute for the statutory category. Cross-examination practice should begin with a proposition counsel intends to establish.
Draft the fair question that puts the substance of a contradictory version, then write the conclusion counsel wants to invite later. This links the Browne v Dunn obligation to practical trial fairness. For prior inconsistent statements, keep four boxes: making of the statement, proof procedure, credibility use and possible truth use. Fill each box separately so section 60 or a hearsay exception does not appear prematurely.
Add a fifth box for evidence from another source after denial. Re-examination drills should quote the ambiguity created during cross-examination and propose a narrow clarifying question. Reject attempts to introduce unrelated omitted topics. Practise identifying improper questions by feature and impact: confusing, repetitive, humiliating, argumentative or lacking legitimate forensic purpose.
Offer a narrower lawful alternative whenever possible. In a timed response, label the examination stage at the start of every paragraph. State the purpose of the question, the relevant restriction, any leave required and the permissible response. Review the final sequence for leakage: cross-examination tactics should not appear in chief, and re-examination should not become a second chief.
Finish with the procedural result, such as disallowing a question, granting limited leave, permitting proof of a statement or confining re-examination. This turns the chapter into courtroom decisions rather than a list of questioning vocabulary.
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