Introduction to witness handling
Witness handling has been a feature of court cases since the time of the Ancient Greeks, and a good witness handling technique has been recognised as an essential skill of an advocate for thousands of years. In a classical rhetorical argument the evidence section of a rhetorical argument was usually divided into two sections:
- Evidence that in theory supports your case theory (usually examination in chief and re-examination) and
- Evidence that is more likely to undermine the case theory of either side (cross-examination)
In this section of the website we will be looking at hints and tips regarding examination in chief and re-examination, both from history and also more modern texts. We have also included some examples, including several from the Nuremberg trials. In the following section we will be looking at cross examination in detail, but for now, we will go on to discuss the key features of examination in chief and look at some of the historical guidance that was given to budding advocates regarding examination in chief.(EIC)
The aims of examination in chief
The BPTC Advocacy course manual identifies the three aims of examination in chief as:
- To establish that part of your case the witness can comment on through questioning.
- To establish the evidence in a way that is clear, memorable and persuasive.
- To insulate the witness, insofar as possible, from attack in cross-examination.
Key features of examination in chief
The key feature of examination in chief is that you may not lead on any questions that are in dispute, although you may lead on matters that are not in dispute. A leading question is one where you supply the answer in the question, so the witness only needs to agree to the question ie "your address is 22 Smith Street, is that correct?"
If you are not sure whether matters are disputed or not, check with your opponent. For example, if you have a look at the Nuremberg trial transcripts, the first few questions of the examination in chief of witnesses are often leading, particularly on questions concerning where they were born, which country they were a citizen of, and their address. I would imagine that counsel had agreed on what matters could be led on, so they could get to the witnesses actual testimony as quickly as possible, and also out of consideration for the witnesses who often had ongoing injuries that made testifying in such a trial a physical as well as a emotional ordeal.
Common issues that may be in dispute include date, time, and place. So for example, if the date and time of a particular event is not disputed, but the place where the event took place is, then you could not lead with this question. Instead you would need to say something like "Where were you at 4pm on the 19th December 2020?". In this example, you are leading on the date and time, but leaving the place part of the question open. Examination in chief will usually involve asking "Who, what, where, when, and how", but never why. Common questions, often used to settle a witness, include:
What is your name?
Where do you live?
Where do you work?
How long have you worked there?
How do you get to work?
What route do you take?
Do you know X?
When did you first meet?