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Examination in chief

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Harsh Parekh - 3rd year student,Gujarat National Law University

Category: Home \ Lawyers Legal Professionals

I kept six honest serving men.
They taught me all I knew.
Their names were what and why and when
And how and where and who
- - Rudyard Kipling

It's been said, "A good lawyer turns evidence into fact and fact into truth." Because they bear the burden of proving the case beyond a reasonable doubt, prosecutors must call witnesses in every trial. Examination in Chief is the keystone in the prosecution's arch. It is also important to the defender who will call witnesses in support of the defensive theory. Direct examination is a vastly overlooked skill. Unlike cross-examination, there is very little written material to guide practitioners through the examination of their own witnesses. This is surprising because cases are actually won or lost on the fruits of direct examination.

Examination in Chief is one of the most subtle and sophisticated forms of advocacy. It is subtle because a good chief examination focuses entirely on the witness and their evidence. The evidence should appear to be flowing effortlessly from the witness. It should look easy. Whereas the witness should be memorable, the lawyer should not. Chief examination is sophisticated advocacy because during its course counsel is actually presenting their case, while trying to satisfy a multitude of objectives, such as maximizing the potential of each witness to present all relevant evidence in as logical, credible, persuasive and accurate manner as possible, while knitting all witnesses' evidence together in a coherent fashion in order to prove all the elements of the offence beyond a reasonable doubt. Examination in Chief thus becomes a starting point for any litigation. In the adversarial system of our country, it becomes a tool of extracting truth from the facts.

Hence it becomes quintessential at this juncture to define what Examination in Chief really means. Section 137 of the Indian Evidence Act defines the term Examination in Chief.

Examination in Chief-
The Examination of a witness by a party who calls him shall be called his examination in Chief. Examination in Chief is the first examination after the witness has been sworn or affirmed. It is a province of a party by whom the witness is called to examine him in chief for the purpose of eliciting from the witness all the material facts within his knowledge which tend to prove the party’s case. Examination in Chief is also known as Direct Examination.

Legalities involved in Examination in Chief.
a) A question based on supposition of fact not proved is improper.
b) Counsels are allowed to ask apparently irrelevant and consequentially inadmissible questions upon the promise to follow them up at the proper time by proof of other facts, which true, would make the question put legitimately operative.
c) The party examining a witness in chief is bound at his peril to ask all material questions in the first instance, and if he fails to do this, it cannot be done in reply.
d) If a question as to any material fact has been omitted upon the examination in Chief, the usual course is to suggest the question to the court which will exercise its discretion in putting it to the witnesses
e) There was no question of cross-examining the plaintiff travelling beyond the evidence of the plaintiff given in examination-in-chief and thereby giving an opportunity to make out a case in cross-examination
f) The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human n the truth and the chances of erring may accelerate under stress of nervousness during cross-examination.
g) But in exceptional circumstances there can be a cross examination of witnesses whose chief examination has been not been done.
h) But this situation is uncertain to quite an extent and there have been descending opinion regarding this.
i) On the examination-in-chief, a witness can only give evidence of facts within his own knowledge and recollection.
j) In all cases the facts from the examination in chief must be relevant. The answer must be upon a point of fact as opposed to point of law.
k) The conlusions of a witness as to the motives of other persons are inadmissible, motives being eminently inferences from conduct.
l) Leading questions may not ordinarily be put in examination in chief.
m) In cases where the witness proves to be hostile, he may be cross examined by the party calling him.
There are other legal provision of the Indian Evidence Act which are applicable here and are referred to in the later part of the project.

Objectives Of Examination In Chief
(1) Legally sufficient to meet the burden of proof, (2) understood and remembered, (3) convincing, (4) able to withstand cross-examination, and (5) anticipatory and contradictory of evidence that the opposition will present. Think of direct examination as your opportunity to construct persuasive arguments. The questions that will be asked shall subtly convey your argument. Conversely, use the arguments that you want to make at the end of the case to guide you in planning and preparing the questions you will ask on examination in chief.

(2) There are multiple objectives to examination in chief. The more significant are as follows:
A. Major Objectives
(a) the evidence must be admissible;
(b) the witness needs to present as persuasive and credible;
(c) each and every element of the offence must be proven beyond a reasonable doubt through the witnesses oral evidence and exhibits.

B. Minor Objectives
In addition, you are also trying to achieve the following slightly less essential, but still important, objectives:
(1) present a logical, complete and coherent theory of the offence;
(2) present each witness in the best possible light;
(3) use the evidence of one witness to support another so that a seamless cloth may be woven of the proven fact;
(4) fill in gaps in the evidence and attempt to explain any inconsistencies;
(5) shut down potential cross-examination thereby limiting the exposure of witnesses.
(6) allow the defence as little room to move as possible by minimizing the possibilities of a defence being supported through cross-examination of witnesses

Legal requirements for an examination in chief
Competency of your witness - The first legal requirement is that your witness must be competent to testify. To qualify as competent, a witness must have: (1) Understanding of the nature and obligation of the oath or affirmation to tell the truth, (2) Perception (knowledge) of the the relevant event, (3) Recollection (memory) of the relevant event, and (4) Ability to communicate

Relevance of your witness' testimony - The second legal requirement for your direct examination is that your witness' testimony must be relevant. Relevant evidence is evidence that has some (any) tendency; however slight, to make the existence of a fact of consequence to the case more or less probable than it would be without it.

Authenticity of matters of evidence to show that the item in question is what its proponent claims it is - The third requirement for your direct examination is that matters of evidence must be authenticated. You authenticate an item of evidence by making a prima facie showing that it is genuine.

Proper evidentiary foundation or predicate for the admissibility of the evidence - Certain items of evidence require special foundations to establish admissibility. For example, if your evidence is hearsay and, thus, presumptively inadmissible prima facie, but will be required to establish its admissibility under one of the hearsay exceptions.

Over and above this, the lawyer conducting examination in Chief must also be careful to stick to the legalities as mentioned above.

Lawyers’s Preparation For The Examination In Chief:
(A) Planning Ahead: What is the Witness’ Role?

1. The Theme of the Case.
2. The Order of Witnesses
3. What witness says

(B) Preparing the Witness.
1. Prior Testimony.
2. Current Testimony.
3. The Use of Documents to Refresh Recollection.
4. The Cross-Examination Drill.
5. The Rules of Evidence and the Need for Objections

(C) The Direct Examination:
1. Organizing the Direct.
2. The Form of the Question.
3. The Use of Non-Verbal Evidence.
4. To overcome with the mistakes that the witnesses have made.

Art Of Preparing A Structure For Examination In Chief:
1. Outline. The questions should be written in the lingo of the ear, not the eye. There needs to be a trial book maintained whose help needs to be taken. The entire process must look impressive and spontaneous to some extent. Maintaining eye contact is necessary.
2. Clarify. To make your questions clear, add only one new fact to each question. Compound questions invite objections. So do questions that are vague and ambiguous.
3. Build evidentiary bridges. There needs to be a connection between the witnesses one wants to present in the examination in chief. One needs to inter relate the witnesses to make it easy for the judges.
4. Employ transitions and signposts. There needs to be proper use of phrases to connect the matter in issue. Use of conjunction and transitions like From here we move to would help the judges understand the matter in a better way.
5. Make repetition persuasive. Repetition must be artful. There must be a repetition of things which are necessary. But such a repetition must be in such a way the opponent cannot object to the repetition.
6. Stretch the important parts. To dramatize a key point in examination in chief, learn how to "stretch-out" your questions. The things which are important should continue for a long time. At the same time, these aspects should remain fresh in the judges mind due to its prolonged nature of presentation.
7. Learn to mirror. Mirror some of the good characteristics of the witness. Adopting some of the characteristics of the witness, e.g., language, smile, tone of voice, eye-contact, etc. puts the lawyer on a better conversational level with his witness.
8. Have your foundations ready. Be prepared to authenticate and lay foundations for any exhibits that are going to be introduced to the witnesses. The goal should be smooth introduction of your tangible exhibits and a persuasive "tell and show" as you use the exhibits to add to the issue concerned.
9. Make your witness' personal knowledge clear. The non-expert witness must speak from personal knowledge. The lay witness can give lay opinion rationally based on the witness' personal perceptions. But a lay witness is not allowed to draw conclusions that call for technical, scientific, or other specialized knowledge.
10. Deflate the potential cross-examination. The examination in Chief must indirectly counter all the rebutting or all probably questions which may crop out of the cross examination. Hence one has to be cautious with the questions put forward.
12. Utilize open-ended questions for the important parts of the story. Questions starting with what, when, how, where etc are open ended questions. They help in giving a vivid description of the issue. And it also benefits the witness to answer at ease.
13. Avoid questions that suggest the answer to your witness. Leading questions should not be allowed to ask in the court, except for certain circumstances.

There are Golden Rules given by David Paul Brown for the Examination of witnesses: These golden rules alert the lawyer to ask questions according to the type of their witnesses. He has given several guidelines which a lawyer can follow for a worthwhile examination in Chief.

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Dealing with the direct examination of a hostile witness, adverse party, or a person identified with an adverse party.
A hostile witness can be as unpredictable as a wild mustang stallion. If you don't rein him in, he can do more damage than good. The hostile witness can be asked leading questions with the permission of the court.

Critical Appraisal Of The System
The examination in Chief is one of the methods of finding truth from the facts. But this system has been corrupted to an extent that the witnesses have merely become puppets whose threads are with the lawyer.

Moreover since already discussed earlier examination in chief requires a lot of skill, hard work and art. A lawyer who may possess it shall be successful in his endeavor of reaching his aim. But in the entire scenario, what seems to be missing is the sense of justice involved. The technicalities involved and high pressure preparations quite often defeat the entire purpose of the activity, which was to reach the ends of justice.

Moreover the complicated justice system and even more complicated lawyers leave the witnesses baffled, confused, perplexed and lost. The advocate’s object is to elicit all the facts relevant to the case s/he is presenting. How far does the adversarial type of litigation helps the purpose is still something to be ascertained.

Conclusion
An examination in chief must appear fresh, interesting, flowing, and conversational. This sounds easy, but requires a lot of work, research and preparation. The importance of Examination in Chief must never be underestimated. .A strong direct examination is an important building block that can lead to the success at the trial. Direct examination does not exist in a vacuum. It must be part of a coherent story told inside and outside the courtroom.

Effective examination in chief builds on a solid case foundation, and establishes client credibility and judge empathy. Like any performance, it requires good preparation; with the lawyer listening to the client first and then teaching the client how best to present himself. Then, at trial, the lawyer has to get out of the way of the relationship between the jury and the client. Turning over responsibility to the client may seem unnatural, and is always uncomfortable, but it is the best way to accomplish the goals of examination in chief, and the ultimate goal of winning the case for your client. Thus the skill of extracting information form one’s own witness also requires a great amount of skill, labor, art, hard work.

What needs to be determined is the fact that not undermining the defects of the examination in chief, is there an alternative? Probably our country is not accustomed to the inquisitorial system. But at the same time, with the development of the alternative dispute resolution system like mediation, arbitration and negotiation, there can be things which can be incorporated in this system of rigorous truth finding mechanism.


Authors contact info - articles The  author can be reached at: harshparekh@legalserviceindia.com

Date of Publication:4 Oct 2007

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