Modes of Examination of witness
Examination in Chief
The examination of a witness by the party who calls him shall be called his examination in chief”.
Object and Purpose
The purpose of the examination in chief is to lay before the court all that the witness knows about the case which is relevant and material. The facts deposed to by the witness in examination in chief must be within his personal knowledge and recollection, and hearsay evidence, as a general rule, is excluded. Since he is only to depose to facts within his knowledge, he is not allowed to testify as to his belief or opinion respecting the fact in question, unless he happens to be a scientific or skilled witness and his opinion is necessary to enable the court to form a correct judgment as to the matter in issue.
Subject Matter of Examination in Chief
The examination in chief must be confined to facts in issue or facts relevant to the issue. The facts deposed to must be within the personal knowledge and recollection of the witness, and hearsay evidence is ordinarily excluded. Oral evidence should be direct. Again the questions should be confined to facts and not of law. Inferences, opinions or beliefs of witness are to be excluded. Witnesses are not permitted to state their views on matter of moral or legal obligation, or on the manner in which the others persons would probably have been influenced, had the parties acted in one way rather than other.
Examination as to document
As to documents, witnesses may be in general be asked about the execution and identity but not about their contents which must be proved by the production of the documents. Witness cannot be asked about the contents of document without the production of document.
Mode of examination
The examination of a witness is viva voce. It is always in the form of questions and answers. The deposition is usually taken down in the form of a narrative formed out of the answers. Where the question is objected to and yet allowed by the court to be put, the question and its answer is taken down verbatim.
Duty of Counsel
As the object of examination in chief is to get from the witness all material facts within his knowledge relating to the party’s case, it is the duty of counsel to bring out clearly and in proper chronological order every relevant fact in support of his client’s case to which the witness can depose.
Leading questions should not be asked
Leading questions or questions pregnant with suspicion that the object is to lead, should never be asked in cross examination.
Examination of a witness by the adverse party shall be called his cross examination”.
Object, Purpose and Scope
The purpose of cross examination is to weaken, qualify or destroy the case of opponent and to unearth the truth. The object of cross examination are three in numbers:-
- To impeach the credibility of the witness.
- To impeach the accuracy and general value of the evidence given by him in chief; and
- To elicit facts which the has not deposed but which the cross examiner thinks he is liable to depose.
The object of cross examination as a matter of fact is to impeach the accuracy, credibility and the general value of the evidence given by the witness to detect or expose discrepancy or to elicit suppressed and concealed facts supporting the case of cross examiner. Cross examination is meant to test the veracity of witnesses and in the meanwhile to lay the foundation of defence version. No testimony of a witness can be used against a person unless the deponent submits himself to the test of cross examination. Power and opportunity to cross examine is one of the principal test which the law has devised for the ascertainment of truth and this is a most efficacious test which means that the situation of the witness with respect to the parties and the subject of litigation, his interests, his motives, his inclinations and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his power of discerning facts in the first instance and his capacity for retaining and describing them are fully investigated and ascertained and submitted to the consideration of the Court.
Witness not cross examined on particular point
Any part of a statement of a witness, when not questioned in cross examination, would be presumed to have been admitted as correct and true. Defendant on that score were stopped to challenge the veracity of the statement.
Cross Examination — A valuable right
Cross examination is most valuable right of an accused and is the only vehicle through which the truth or falsity of the witness can be examined.
Cross examination is a continuing part of the whole statement, rather more important than the examination in chief. 2003 SCMR 1374
Cross Examination need not to confine to statement made in Examination in Chief:
Scope of cross examination need not be confined to the facts to which the witness testified in his examination in chief as the opposite party is free to cross examine the witness in the light of his own defence.
Leading Questions may be asked:
According to Article 138 leading questions may be asked in cross examination.
The examination of a witness subsequent to the cross examination by the party who called him, shall be called his re-examination.
After a witness has been cross examined, the party who called him has a right to re-examine him, and to ask all questions which may be proper to draw forth an explanation of the meaning the expressions used by the witness on cross-examination, if they be in themselves doubtful; and also of the motive, or provocation which induced the witness to use those expressions; but he has no right to go further, and to introduce new matter in itself and not suited to the purpose of explaining either the expression or the motives of the witness. It is a settled law, that proof, on cross examination, of a detached statement made by or to a witness at a former time, does not authorize proof by the party calling that witness of all that was said at the same time, but only of so much as can be in some way connected with the statement proved. (Prince v. Samo, 7 A & E 627)
Object and purpose
The object of re-examination is to clear an ambiguity which has arisen upon cross examination. It does not provide a chance to the party for making improvement in the examination in chief. In fact, the re-examination is directed to the explanation of the matter referred to t he cross-examination. Thus, the condition essential for re-examination is the existence of some ambiguity which has crept into the examination in chief by the embarrassing question asked in cross examination. Where there is neither any confusion causing double meaning in the examination in chief nor any doubtfulness is expressed by witness in his statement, the application moved for re-examination and the question proposed to be asked, going to make the position of the petitioner/ plaintiff still worse.
Recall for Re-Examination in Chief
Under ordinary circumstances it is not necessary or permissible to allow a witness once examined and dismissed by a party to be recalled, for it is expected that advocate will interrogate him on all material points touching his case. Unforeseen situation may however develop and there may also be inadvertent omissions. In such cases, the court may in its discretion allow a witness to be recalled. But surprise and prejudices to the other party should be guarded against. Nor should a party be allowed to fill up lacuna in evidence under the pretext of a recall.
if new matter is introduced in re-examination without objection the court must be deemed to have permitted the question and adverse party has a right to further cross upon the matter.
In Carren v. Connery, 5 Binn 488 TILGHMAN CJ said, “it may be necessary, in order to come at the truth of the case, to examine him as to new matter, and after that there may be a second cross examination.