Precedent (Australian Lawyers Alliance)
READY TO DANCE? TIPS FOR EXAMINATION IN CHIEF
By Glyn Watson and Michal Horvath
Examination in chief is something akin to a dance; although you cannot lead and, although both partners (that is, the witness and the barrister) should be adequately prepared (through conferencing), the witness must not have been coached as to the appropriate steps.
It is as though you’ve had a chance to listen to the witness tell you how they expect they will want to dance, and then you attend the party, throw yourselves into the clinch and attempt a complicated ballroom number during which neither party takes the lead: you are allowed to make only indirect attempts to influence events by nudging, tiling your head and glancing at your partner meaningfully – or, in reality, by asking the open question equivalents.
This is, as it sounds, not easy to accomplish.
Permeating the entire process, from the first conference with the witness to them giving their evidence in chief, is the inherent tension between your natural inclination to assist a witness to ensure that they give the court their best recounting of events so far as they can recall them, and the court’s equally natural determination to ensure that the evidence from the witness is their own and unadulterated by professional minds.
The examiner in chief dances in the tightly prescribed arena between those two imperatives, which is inhabited by acceptable tricks and tips that assist the witness to give their evidence without suggesting it to them.
This article addresses some of those tricks and tips.
This article will propose the following tricks and tips for a successful examination in chief:
1. Prepare the witness thoroughly prior to court.
2. Control the witness in the witness box.
3. Listen to the answers the witness gives you.
4. Elicit evidence from the witness by asking questions by reference to evidence the witness has already given.
5. Elicit evidence from the witness by asking questions by reference to facts or matters that you know are connected in the mind of the witness to the facts or matters about which you wish to elicit evidence from them.
Further, this article will advise practitioners not to ask a witness in examination in chief questions like, "was anything else said or done?"
Why is this hard?
It is the comparative lack of control that is the hardest part of examination in chief with which you must come to terms.
The famous quotation from the rotund hero of the Old Bailey will be known to most:
“I could win most of my cases if it weren’t for the clients. Clients have no tact, poor old darlings, no bloody sensitivity. They will waltz into the witness box and blurt out things that are far better left...unblurted.”
Or, just as often, they will fail to blurt out sufficient evidence in support of their case. The same is true for all witnesses.
The hints and tips set out herein constitute some of what we consider to be the most useful. However, they comprise mere drops in the pool of information in which practitioners would be well advised to immerse themselves. They are described in respected sources dealing with the subject, which readers are encouraged to obtain and absorb.
TRICKS AND TIPS FOR EXAMINATION IN CHIEF
1. Prepare the witness prior to court
Much of the work for examination in chief comes from preparation outside of the court. Practitioners are aware, of course, of the ethical requirement not to lead a witness to give particular evidence in conference (about which much has been written). Preparation, however, is not coaching; it is knowing. It is taking the measure of the witness and evaluating their likely personal strengths and weaknesses in the witness box. It is knowing their views on any issue about which they may conceivably be asked questions. It is knowing what evidence can confidently be led from the witness in support of your client’s case, and matters about which it may be best not to ask them. It is also about ensuring that the witness is given all possible information about the process of giving evidence in court, so that they are less likely to be surprised or stressed when they have to face it.
2. Control the witness
To perform an effective examination in chief you must retain control of the witness. That is, primarily, control over the length, the scope and the manner of their responses.
Witnesses answer questions. In examination in chief, these must be open questions, but the point remains that the role of the witness is responsive and reactive only. They are not there to exercise initiative or to speak freely and expansively on any topic. If they attempt to do so, they must be stopped. How?
First, again, preparation in conference is of vital importance. The witness must be made to understand the court process and their role in it. The advice ordinarily given (which also applies to questions put in cross-examination) is that the witness must listen very carefully to the questions and be astute in answering that question and only that question.
Secondly, give the witness a fair chance to follow that advice by making your questions simple, short and uncomplicated. Use normal everyday English, and do not ask ‘double-barrelled’ questions.
Thirdly, have a simple, coherent structure to your questioning. If the witness can follow the course of the questioning and understand why questions are being asked in a particular order, on particular subjects, then they are more likely to follow each one of the questions asked and, therefore, are more likely to confine themselves to answering only that question.
Fourth, Glissan recommends that if other more subtle methods fail, then one can add what are essentially command words into your form of questions. To say, for instance, “In a few words, tell us what you then did” or “Could I just stop you there and ask you to go back to...and tell us exactly what happened.”
3. Listen to the answers
Questions and answers ought to be forces of mutual reciprocity. If they are not, because the questioner ignores the answers, then a whole half of the relationship, and of the potential avenues for eliciting evidence, is missed.
There are, at least, three reasons why it is vital to ensure that does not happen.
Firstly, as will become apparent in what follows, some of the most useful questioning techniques depend on you repeating some of the evidence given by a witness in answer to an earlier question. This is obviously impossible if the earlier answers do not register in your mind.
Secondly, you must recognise it if your witness is drowning before you can throw them a rope. There is often an unfortunate and direct correlation between the confidence a witness exhibits in conference and the chance that they will in fact become a gibbering mess of unhelpful non-sequiturs in the witness box. Nothing is more calculated to advance the onset of full-blown panic in such a witness than a situation in which they are floundering, but you are looking at your notes, nodding sagely, saying “uhuh” and ticking off a box on the page in front of you where it is doubtless written ‘make sure to ask this or that’.
If you are listening to the witness, you can correct their course by using the techniques set out herein before the situation gets out of hand.
Thirdly, examination in chief is most believable (from the point of view of the judge or jury presiding) and most successful (from the point of view of keeping the witness calm and focused, and eliciting all of the necessary evidence from them) when maintaining a natural-sounding, ‘conversational’ style of questioning during examination in chief. This is impossible to achieve without eye contact, positive feedback through body language and, most of all, recognition and repetition of some of the things that the witness has said in crafting follow-on answers. This requires you to have listened to those answers.
The best way to ensure that you listen to the answers given by a witness is to thoroughly prepare. That is, know your case, know the evidence you must elicit from the particular witness and the structure of the topics you intend to lead them through in order to elicit that evidence. Then, eschew lists of prepared questions in favour of lists (or better yet for the visually inclined, bubble diagrams or such like) of topics that must be covered, and facts about which evidence must be elicited.
This will tend to free your mind of concern over keeping your place in a list of questions. It will allow you to spend less time peering at your own writing, and more time looking at the witness. It will promote efficiency and adaptability in your questioning on the necessary topics, and leave room for you to creatively investigate topics raised by the witness (see below in relation to using the witnesses’ evidence as a jumping-off point for further questions).
4. Questioning technique – “You said this – now, what about that in relation to this?”
In many circumstances, where you have established the topic you are asking about and the witness seems to be going well in recalling matters, you need only give the witness a gentle nudge forward to keep their story going. To ask something as innocuous as "What happened next?" for instance: a simple question but one guaranteed not to be leading.
In many cases, however, things aren’t so easy. A witness will often fail to remember to say something you need to elicit from them. How can a questioner try to prevent this from happening, and what can they do about it if it does happen?
An effective technique is to ask an open question of the witness by specific reference to some evidence they have already given. By giving your question context, you orientate the witness to the subject matter about which your question is intended to elicit evidence from them.
This is acceptable because the contextual part of the question is not part of the question itself, but precedes it, and is merely a recitation of evidence the witness has already, freely, given.
So, one does not ask simply: “How did Mr Bouncer look at the time?”
Instead, one might say: “You have said a moment ago that when Mr Bouncer was speaking to Mr Annoying-Drunk, he looked angry. What exactly was it about the way he looked that made you say that?”
This approach has the virtue not only of repeating something likely to be adverse to the interests of Mr Bouncer (which, as Glissan reminds us, is a powerful way of procuring belief in the stated fact in the minds of any audience), but it also focuses the witnesses attention on the features of Mr Bouncer at that time which made him look mad, rather than risking an irrelevant or unhelpful answer perhaps, describing some other features. “He looked ugly and cross-eyed, as he always does”, for instance.
5. Questioning technique – “I know you remember this – so perhaps you now remember that?”
A variation on the same theme, of guiding a witness to evidence you wish to elicit by first having them refer to other evidence, has been described as the making use of ‘fortresses’.
A ‘fortress’ for this purpose is not necessarily something the witness has already said in evidence (though it might be – in which case you can follow the technique outlined above), but is rather a fact or circumstance that you know is linked in their mind with the evidence you need to elicit from them.
An example is given in Glissan about a witness from whom you need to elicit evidence as to the date of a meeting. If you were to ask “What date was that meeting?”, the answer might be “I can’t recall.” So, you first ask questions about an incident when he cut his hand prior to going on a camping trip. You do this because you happen to know that he cut his hand, and went camping, just prior to the date of the meeting. If the witness can locate the first events in time, he can likely locate the second.
You might for instance have an exchange with the witness along the following lines:
“What did you do for your holidays in June?” / “I went camping.”
“You went camping. Was it enjoyable?” / “Well, not really, because I spent the whole time looking after my hand, which I cut just before we left.”
“When did you cut your hand?” / “June 5th”.
“You’ve said you cut your hand on June 5th. What do you recall was the state of your hand when you had the meeting with the defendant?” / “Oh, it was still cut. Actually, yeah, it was still fresh and I was worried it had dirt in it.”
“When did that meeting take place, to your recollection?” / “Well, now I remember it was just after the camping trip. So, in the week of 15 June.”
You will again note the vital importance of having conducted full and detailed conferences with your witnesses. It is only by having spoken to them in detail that you would come to learn otherwise extraneous facts, such as that they cut their hand just prior to a relevant event.
QUESTIONS TO AVOID IN EXAMINATION IN CHIEF
“Was anything else said?”
There are some questions that ought not be asked, no matter how natural it might be to ask them. One kind of such question is that to which you do not know the answer. Another is the dire ‘one question too many’ (all the more resented by practitioners for how difficult it can sometimes be to identify it prior to receiving the inevitably devastating answer that follows).
However, perhaps the worst question, most likely to be used by those not experienced in oral advocacy, is “was anything else said?” or “did anything else happen?”
These questions are to be avoided because they foreclose on further questioning if the answer given to them is ‘nothing’ or ‘no’ – as it very often is.
If a witness has trouble recounting a conversation, and you know that they have forgotten to recount a part of the conversation that is vital to your case, you will want to prompt them. But don’t assume that asking “was there anything else...?” will give them the hint they need that there is something else to be said, and that they will remember what it is and say it. Such assumptions are often completely unfounded.
Alternative questioning techniques
Instead, use one of the techniques outlined above. For instance, say that you wish to establish that during a particular meeting a man named Fred had said that his car was red in colour. Your witness recounts the meeting, but forgets to say that during the meeting Fred said that his car was red. You might have an exchange with the witness along either of these two lines:
“You said in your evidence a moment ago that Fred’s car was red. How do you know that?” / “Oh, he also said that during our conversation that Monday.”
“How did you all get to the ice skating rink on the Friday?” / “We took my car.” / “Why didn’t you take Fred’s car?” / “It is only a two-seat sports coupe.” / “What colour is Fred’s car?” / “Red.” / “If you didn’t take his car on the trip to the ice skating rink, how do you know it is red?” / “Oh, he mentioned that it was red when we were talking that Monday.”
If, after the witness had first given their evidence about the meeting, you had asked "And was anything else said?", they would very likely have answered “No”. Taking the paths outlined above guides the witness towards recalling what you need them to, without putting the words in their mouth.
Nothing develops advocacy skills other than being an advocate. However, starting with tips such as these, and with further reading and practice, a practitioner may in time begin to feel somewhat more confident that they won’t trip over their own feet or tread heavily on those of their partner when taking to the metaphorical dance floor.
Glyn Watson is a barrister in Brisbane. PHONE (07) 3012 7909 EMAIL email@example.com.
Michal Horvath is a barrister in Brisbane and a member of the Precedent editorial committee. PHONE (07) 3221 7000 EMAIL firstname.lastname@example.org.
 John Mortimer, ‘Rumpole of the Bailey’, aka “Rumpole and the confession of guilt’, BBC1 Play for Today, first broadcast on 16th December 1975.
 Such as JL Glissan, Advocacy in Practice (5th Ed), LexisNexis, 2011.
 Ex-Supreme Court of SA Justice Wells in Glissan, see note 1 above, p66.