QUESTION 1: EXAMINATION OF WITNESSES

INTRODUCTION
The examination of a witness consists of the series of questions put to him by a party to the
action, or his counsel, for the purpose of bringing before the court and jury in legal form the
knowledge that the witness has of the facts and matters in dispute, or of probing and sifting
his evidence previously given. In criminal practice.1
A: EXAMINATION OF WITNESSES UNDER THE COMMON LAW SYSTEM
The examination of witnesses under the common law system is a crucial aspect of the legal
procedure aimed at ascertaining the truth and presenting evidence in a court of law. There are
three main types of examination: examination-in-chief, cross-examination, and re-
examination.
Examination in chief,
it is a court process in which a lawyer asks their first questions to their own witness, in order
to begin proving their legal argument 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.
When witnesses are called to give evidence, they will be asked by the party seeking to rely on
their evidence to give their account of what happened (if they are a factual witness) or their
expert opinion (if they are an expert witness). This is known as their ‘evidence-in-chief’ and
the questioning of the witness at this stage is the ‘examination-in-chief’2
At trial, juries and magistrates do not receive the written witness statements of witnesses who
are called to give evidence (except on rare occasions), so what the witness says will be their
evidence in the trial.
Aims of examination in chief (direct examination)
 it makes the witness feel relaxed by starting with simple questions so that he can be
prepared to face cross-examination.
 it is also important to supp3ort the previous facts that the counsel has presented before
the examination

1
The Law Dictionary Your Free Online Legal Dictionary • Featuring Black’s Law Dictionary, 2nd Ed.
2
https://www.defence-barrister.co.uk/examination-in-chief#what-is-examination-in-chief .

3
https://www.legalserviceindia.com/article/l15-Examination-in-chief.html.
  each and every element of the offense must be proven beyond a reasonable doubt
through the witness’s oral evidence and exhibits

Examples of questions to ask during examination in chief

1. What is your full name?
2. What is your occupation?
3. How long have you been in your current occupation?
4. Where do you live and how long have you lived there?
5. How do you know the claimant/respondent?
6. Did you witness the incident in question?
7. Can you describe the incident in detail?
8. Were there any other witnesses present during the incident?
9. Did you have any conversations with the claimant/respondent before or after the
incident?
10. Can you identify any inconsistencies in the statements made by the
claimant/respondent? [2]
Cross-Examination :
Cross-examination is the formal questioning of a witness called by the other party in a trial to
challenge the testimony the witness has already given. Cross-examination questions are
usually limited to questioning only on matters raised during direct examination. 4 Cross-
examination gives the opposing party an opportunity to point out weaknesses of the witness’s
testimony, like holes in their story or a lack of credibility.5
Purpose of Cross-Examination in Court
The objective of cross-examination is to elicit answers or information from witnesses to
damage the credibility of the witness: getting witnesses to discredit their own or other
witnesses’ testimony by exposing weaknesses or inconsistencies in their testimony even if
they are telling the truth. 6There are a number of ways to discredit a witness that is, including
4
Kretzer, S. (2023) Cross-examination: Definition, Techniques & Rules in Court, | Law Offices of Seth
Kretzer. Available at: https://kretzerfirm.com/cross-examination-definition-techniques-rules-in-court/
#:~:text=Cross%2Dexamination%20is%20the%20formal,matters%20raised%20during%20direct
%20examination. (Accessed: 09 August 2023).
5
Cross examination (no date) Legal Information Institute. Available at:
https://www.law.cornell.edu/wex/cross_examination (Accessed: 09 August 2023).
6
Berg, David. “Cross-Examination.” Litigation, vol. 14, no. 1, 1987, pp. 25–57. JSTOR,
http://www.jstor.org/stable/29759211. Accessed 9 Aug. 2023.
the presentation of a negative character, rebuttal witnesses, and impeaching documents, using
a witness’s prior statement that contradicts testimony on the stand. 7The purpose of cross-
examination is to create doubt about the truthfulness of the witness’s testimony, especially as
it applies to the incidents that are at issue in the case. Cross-examination questions are usually
the opposite of direct examination questions. In a direct examination, you have to ask the
witness open-ended questions that allow them to fully explain their answer. A cross-
examination question should be very pointed and requires only a one-word answer, preferably
“yes” or “no.”. here are some common types of questions during cross-examination.
1. Can you please state your name for the record?
2. Are you the respondent in the Supreme Court?
3. Did you witness the incident in question?
4. Can you provide the date, time, and duration of the incident you witnessed?
5. Were there any other witnesses present during the incident? If so, can you provide
their names?
6. Can you describe in detail how the incident occurred?
7. What were the circumstances leading up to the incident?
RE-EXAMINATION OF A WITNESS
Re-examination is the final part of the questioning of a witness at trial following their
cross-examination. Once a witness has given their evidence-in-chief and been cross-
examined by the other side the barrister may re-examine their witness. The purpose of re-
examination is to give the witness an opportunity to explain any matters raised during cross-
examination and is therefore limited to only those matters that were raised during cross-
examination. It is not another opportunity to go through the evidence provided.
For example, a prosecution witness will be taken through their evidence-in-chief by the
prosecutor, then cross-examined by the defense, and then re-examined by the prosecutor
concerning any matters that arose during the cross-examination.
Objectives of Re-examination
Re-examination is the final part of the questioning of a witness at trial following their cross-
examination.
What is re-examination used for?
 It is used to clarify any matters which have become unclear during cross-examination.
As stated by Sopinka et al.: The purpose of re-examination is to enable the witness to

7
Ibid.
 explain and clarify relevant testimony which may have been weakened or obscured in
cross-examination.8
 It is used to ask further questions about an issue or answer given by a witness during
cross-examination.
 It is used to rehabilitate a witness that was discredited during cross-examination and to
counteract any damage caused during cross-examination and potentially expose
unethical tactics used by the opposing counsel. As noted by Reid and Holland: Re-
examination is a dangerous business. You are trying to rehabilitate a witness who has
been knocked about in cross-examination. The witness is often feeling most unhappy
about being a witness at all and just wants to get out of the witness box. There is a
grave danger that re-examination will produce the same answers that he has just
given in cross-examination and will substantially reinforce his harmful testimony9.

 Alternatively, you might want to use re-examination if during the cross-examination

inconsistencies have appeared between a witness’ testimony and a prior statement 10 It
is important for the re-examiner to be cautious and not repeat the in-chief testimony.

 Re-examination can be a powerful tool for an advocate where the witness failed to
evoke a fact ((contained in the written statement) during the examination in chief but
the question was brought up by the cross-examiner. In a jury system, if a witness does
not mention something while giving evidence, then it will not be known to the
magistrates/jury.

Questions not to ask during re-examination

- If a prosecution witness fails to mention an important fact in evidence-in-chief, then
this could potentially work in a defendant’s favor since this might be evidence that is
vital for proving the defendant’s guilt. This is because re-examination can be used to
ask further questions about matters arising out of cross-examination ONLY.
- Sometimes, If you have thoroughly prepared your case and have covered all the
relevant ground in your examination-in-chief, there should be no need to re-examine.
It may well be best (or irresistible) to simply get the witness off the stand. Reid and
Holland point out: Many lawyers seem to think that because they have the right to re-
examine, they should do so, because not to exercise this right would be to show
weakness on their part. Nothing could be further from the truth.11
- Hypothetical questions are disallowed……………….
- The re-examining lawyer is hampered by the inability to ask leading questions on
controversial questions………………………….

8
J. Sopinka, S.N. Lederman & A.W. Bryant, The Law of. Evidence in Canada (Toronto: Butterworths,
1992) at 879
9
R.F. Reid & R.E. Holland, Advocacy – Views from the Bench (Aurora: Canada Law Book, 1984) at
153
10
Re-examination of Witnesses (lawteacher.net)
11
 - There is no limitation that re-examination should be limited to one or two questions
and if the urgent situation requires any number of questions can be asked in re-
examination.

Examples of Questions one can ask during re-examination

1. "Is there anything you feel was misrepresented or misunderstood during cross-
examination?"
2. "Can you clarify any inconsistencies or contradictions that arose during cross-
examination?"
3. "Do you have any additional information that you believe is relevant to the case, based
on the questions asked during cross-examination?"
4. "Is there anything you would like to add or emphasize in response to the questions
asked by the opposing counsel?"
5. Earlier during cross-examination, the opposing counsel suggested that you were not
present at the scene of the incident. Can you please clarify your whereabouts on the
date in question?"
6. "The cross-examining counsel implied that your expertise in this field is limited.
Could you please elaborate on your qualifications and experience in this particular
area?"
7. "Counsel for the opposing party raised doubts about the accuracy of your previous
testimony. Can you provide any additional evidence or supporting documentation to
bolster the credibility of your statements?"
8. In cross-examination, it was suggested that [specific claim]. Can you provide further
details or explanations on this matter?...

B: EXAMINATION OF WITNESSES UNDER THE CIVIL LAW SYSTEM

In the civil law tradition, the examination of witnesses plays a crucial role in the fact-
finding process during legal proceedings. Unlike common law systems where witness
examination is primarily conducted through direct and cross-examination, civil law systems
have unique approaches and procedures. In the civil law tradition, witness examination
typically begins with an initial phase known as the "interrogation." During this phase, the
examining judge or magistrate takes an active role in questioning the witness, aiming to elicit
relevant information related to the case. The judge or magistrate is responsible for conducting
a comprehensive and unbiased examination to ensure the facts are properly presented.
The interrogation in civil law systems is characterized by a question-and-answer format,
where the judge asks questions to the witness, allowing them to provide detailed responses.
This approach differs from common law systems, where attorneys play a more prominent role
in questioning witnesses. The purpose of the interrogation is to clarify the facts, identify any
inconsistencies in the witness's statements, and uncover relevant evidence. The judge may
seek to establish the credibility, knowledge, and understanding of the witness regarding the
case at hand. Depending on the complexity of the case, multiple rounds of interrogations may
take place, with additional witnesses being called to testify.
In some civil law jurisdictions, the parties involved in the case, or their legal representatives,
may have the opportunity to propose questions to the judge that they believe should be asked
during the witness examination. This allows the parties to contribute to the fact-finding
process and ensures a fair and comprehensive examination.
It is important to note that the examination of witnesses in the civil law tradition prioritizes
the search for truth and the objective presentation of facts. The judge or magistrate plays a
fundamental role in ensuring a thorough and impartial examination, aiming to establish a clear
understanding of the case based on the evidence provided by the witnesses. Examples
1. Please state your full name and occupation for the record.
2. How are you related to the parties involved in this case?
3. Were you present at the location of the incident on [date]?
4. Can you provide a detailed account of what you observed during the incident?
5. Did you witness any specific actions or behaviors of the individuals involved?
6. Were there any other witnesses present at the scene? If yes, please provide their
names and contact information.
7. Did you take any photographs or videos related to the incident?
8. Can you describe any conversations or exchanges that took place between the
parties involved?
9. Did you notice any signs of aggression or provocation from any party?
10. Did you witness any injuries or damage as a result of the incident?
Overall, the examination of witnesses in the civil law tradition is a structured and controlled
process designed to facilitate the discovery of factual information to aid in the fair resolution
of legal disputes.
QUESTION 2: EXAMINATION OF VULNERABLE PERSONS
INTRODUCTION
The examination of a vulnerable person refers to the process carried out to assess and evaluate
the physical, mental, or emotional well-being of an individual who may be deemed
vulnerable. The term "vulnerable person" typically applies to individuals who may be more
susceptible to harm or exploitation due to factors such as age, disability, illness, or other
circumstances that impair their ability to protect themselves.12 When conducting an
examination of a vulnerable person, certain considerations need to be considered to ensure the
person's safety and well-being. These considerations may vary depending on the specific
context and jurisdiction, but some common principles apply.13
First, it is crucial to establish a safe and comfortable environment for the examination,
ensuring the privacy and dignity of the vulnerable person. This may involve providing them
with a quiet space, allowing a support person to be present, and taking breaks if needed.
Second, obtaining informed consent is essential. The vulnerable person should be provided
with clear and understandable information about the purpose, nature, and potential risks or
benefits of the examination, and their consent should be obtained freely and without coercion.
It is important to note that if the person lacks the capacity to provide informed consent,
appropriate legal measures should be taken, such as involving a guardian or following
applicable legal procedures.
Third, the examination should be conducted or assisted by competent professionals, such
as healthcare providers, psychologists, social workers, or others with relevant expertise. These
professionals should adhere to ethical principles and guidelines specific to their respective
fields.
During the examination, the professional may assess various aspects of the vulnerable
person's well-being, depending on the purpose of the examination. This may involve
evaluating their physical health, cognitive capabilities, mental health, emotional state, living
conditions, or any specific concerns related to their vulnerability. The professionals may use
standardized tools, interviews, observations, or other appropriate methods to gather
information.

12
https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-
involving-human-subjects/
Bruce G. and Gordon, MD . (2020) Vulnerability in Research: Basic Ethical Concepts and General
13

Approach to Review Published online Spring 2020. doi: 10.31486/toj.19.0079

It is crucial to document the examination thoroughly, including detailed notes regarding
the findings, observations, and any recommendations or referrals made. This record
serves as a reference for future interventions, and legal proceedings, or to monitor progress
over time. It is important to handle these records with care and confidentiality, following
relevant data protection and privacy laws.
This work will lay more emphasis on two groups of vulnerable persons children and people
with disabilities
A: EXAMINATION OF CHILDREN
Children can be victims of offenses and can also be affected by crime even if they are not
themselves victims or witnesses. A child may be seriously affected by, for example, domestic
violence, even if not present in the same room as the offense is committed. 14 Minors'
testimonies are examined in court through a process that considers their age, maturity, and
understanding. Here are some key points regarding the examination of minors' testimonies in
court:

1. Competency Determination: Every person is deemed competent to be a witness, except

as otherwise provided in the rules of evidence. Before a minor can testify in court, an
examination is usually conducted to determine their competency. In many legal
jurisdictions, there is a requirement for younger children to undergo an initial evaluation
by the court to assess their ability to provide testimony before they can testify. If the judge
determines that the child is competent, the examination proceeds as usual. However, in
jurisdictions that follow the Federal Rules of Evidence approach, many children are
presumed to be competent, and a preliminary examination is not necessary.15
The qualifications for a child to provide testimony include their ability to communicate
and understand the questions asked. Even if a child witness has been declared competent,
there may still be concerns from the attorney about how confident the jury will be in the
child's ability to testify. In such cases, it can be beneficial to use a portion of the direct
examination to ask questions that demonstrate the child's competency. For instance, the

14
Legal Guidance, L. (2019) Safeguarding children as victims and witnesses, Safeguarding Children
as Victims and Witnesses | The Crown Prosecution Service. Available at: https://www.cps.gov.uk/legal-
guidance/safeguarding-children-victims-and-witnesses (Accessed: 09 August 2023).
15
Myers, J.E.B. (1987) ‘The Child Witness: Techniques for Direct Examination, Cross Examination,
and Impeachment ’, The Child Witness: Techniques for Direct Examination, CrossExamination, and
Impeachment , pp. 806–936. Available at: https://scholarlycommons.pacific.edu/cgi/viewcontent.cgi?
article=1071&context=facultyarticles (Accessed: 09 August 2023).
 attorney may ask questions that show the child's ability to perceive, remember, and
accurately describe facts, as well as their understanding of the difference between truth
and falsehood.16

On occasions, it may be appropriate to ask a preliminary question that contains an intentional

inaccuracy. If the child corrects the counsel on the incorrect information, it helps to showcase
the child's intelligence and perceptiveness to the jury."

The trial judge has discretion in assessing the child's ability to provide reliable testimony.
Children as young as four years old, have been found competent to testify in certain cases, as
established in State v. Kivett (1988) 17and State v. Robinson (1984).18

2. Factors Considered: The court considers several factors when evaluating the testimony
of a child, including their age, psychological maturity, understanding of the proceedings,
and the nature of the crime involved.
3. Trustworthiness of Testimony: The purpose of a child's testimony in court is to provide
trustworthy evidence.
Preschool-age witnesses generally provide their testimony based on their understanding of the
truth. However, it would be incorrect to assume that these children never deviate from the
truth. While the limited cognitive development of pre-schoolers often increases the likelihood
that they will testify truthfully, there are occasional instances where a child may not do so.
Moreover, a pre-schooler’s perception of the truth can be influenced by coaching or
suggestive techniques, leading them to believe something is true when it is not.19

As children reach the ages of eight or nine, they begin to develop logical reasoning skills, and
by eleven or twelve, many children can engage in abstract reasoning. Consequently, children
over the age of eight generally possess a higher level of cognitive sophistication and can
16
Myers, J.E.B. (1987) ‘The Child Witness: Techniques for Direct Examination, Cross Examination,
and Impeachment ’, The Child Witness: Techniques for Direct Examination, CrossExamination, and
Impeachment , pp. 806–936. Available at: https://scholarlycommons.pacific.edu/cgi/viewcontent.cgi?
article=1071&context=facultyarticles (Accessed: 09 August 2023).
17
State v. Kivett Case 364 S.E.2d 404 (1988) https://law.justia.com/cases/north-carolina/supreme-
court/1988/328a87-0.html
18
State v. Robinson case 313 S.E.2d 571 (1984) https://law.justia.com/cases/north-carolina/supreme-
court/1984/515a83-0.html
19
Myers, J.E.B. (1987) ‘The Child Witness: Techniques for Direct Examination, Cross Examination,
and Impeachment ’, The Child Witness: Techniques for Direct Examination, CrossExamination, and
Impeachment , pp. 806–936. Available at: https://scholarlycommons.pacific.edu/cgi/viewcontent.cgi?
article=1071&context=facultyarticles (Accessed: 09 August 2023).
understand the reasons for and against being truthful in court. In this aspect, the differences
between children and adults diminish, and by adolescence, many children have reached a
level of cognitive maturity comparable to that of the average adult witness.20

4. Cross-Examination: Both evidence-in-chief (direct examination) and cross-examination

can be stressful for young witnesses. Cross-examination, in particular, can be distressing
for minors. Cross-examination of child witnesses is a delicate and difficult business.
When testimony from a child constitutes the central evidence on a litigated issue, the skill
and ingenuity of the examiner may determine the outcome of the case. 21 The basic
purposes of cross-examination are to elicit testimony that is favorable to the cross-
examiner's theory of the case and to undermine the witness's direct testimony by
challenging the witness's credibility or his or her testimony.22
During the early stages of cross-examination, when the child is most likely to be cooperative,
the cross-examiner induces the child to divulge information that is consistent with the
counsel's version of the facts. In many cases, the cross ends when these facts are in the record.
In other cases, counsel conducts some form of impeaching cross-examination.

The specific goals of cross-examination vary from child to child. There are, however, several
basic objectives underpinning most cross-examination. Counsel may commit the child to a
specific version of the facts so that the child can be impeached with prior inconsistent
statements or contradicted by extrinsic evidence.

The examiner may spotlight inconsistencies in the child's testimony. Inconsistencies may
indicate that the testimony is mistaken or deliberately falsified, or that the child is confused,
uncertain, highly suggestible, or lacking in personal knowledge of the facts. The examiner
may hope to show that the child was coached, or that the direct testimony was memorized.
Finally, cross-examination may demonstrate that the child lacks the capacity to observe,
remember, or communicate.

5. Reliability of Testimony: Once a court determines that a child is competent to testify, the
reliability of their testimony becomes an important consideration. The court examines the
consistency and credibility of the child's statements.

20
Ibid.
21
Ibid.
22
F. BAILEY & H. ROTHBLATT, CROSs-ExAinNATION IN CRImINAL TRIALS § 24, at 16
(1978)
B: EXAMINATION OF VULNERABLE DISABLED WITNESSES

The Webster’s Dictionary defines mental retardation as a mild or severe impairment in

intellectual ability equivalent to an IQ of 70 to 75 or below that is accompanied by
significant limitations in social, practical, and conceptual skills necessary for independent
daily functioning.
An intellectually disabled person is not necessarily deprived of reason or demented. He or
she is deficient in general mental abilities and has impaired conceptual, social, and
practical functioning relative to his or her age, gender, and peers. Because of such
impairment, he or she does not meet the socio-cultural standards of personal independence
and social responsibility.
At common law, as a general rule, all witnesses who are able to comply with testimonial
formalities—such as the giving of oaths—are competent to give evidence. There is no
other common law test of physical or psychological competence, but a judge has
discretion, in exceptional cases, to refuse to permit a witness to testify where the evidence
is likely to be unreliable. Otherwise, matters of competence are relevant only to the
witness’s credibility and the weight that may be placed on the evidence given.23
However, despite general perceptions that people with mental retardation make
incompetent witnesses, evidence suggests that they can provide accurate accounts of
witnessed events. Their testimonies are usually less complete than those provided by
mentally able people and are greatly influenced by the methods of questioning. The sparse
available evidence suggests that cross-examination methods may lead to memory
distortion. The use of closed, complex, and leading questions and the absence of aids to
recall may have a particularly adverse effect on people with mental retardation. Resulting
errors could lead to a false conviction or acquittal.24 
It may happen that a person of full age is unable to testify or defend his or her interests
alone, due to a medically certified mental disability or physical faculty. 25 The adult is
therefore unable to express his or her thought. In this case, various measures are available
to ease the examination and questioning of such witnesses.
The Criminal Procedure Act of Australia states that, in criminal and certain other
proceedings, a vulnerable person ‘is entitled to choose a person whom the vulnerable

23
Thomson Reuters, The Laws of Australia [16.4.280].
24
People with mental retardation as witnesses in court: A review, M R Kebbell, C Hatton
25
article 425 of the French Civil Code
 person would like to have present near him or her when giving evidence’. 26 The supporter
‘maybe with the vulnerable person as an interpreter, for the purpose of assisting the
vulnerable person with any difficulty in giving evidence associated with an impairment or
a disability, or for the purpose of providing the vulnerable person with other support’.
How questions should be asked to examine disabled witnesses and victims.
 Questions should be short and simple.
 A witness should be given an adequate opportunity to consider the question, formulate
a response and then give an answer. This will generally be longer than is required for
the average adult witness. Quick-fire questions are to be avoided.
 As a general rule a witness' answer should not be interrupted except where it is
necessary to ensure the witness responds to the question or to prevent the witness from
giving inadmissible evidence. It is to be considered that such witnesses may require
greater leeway in formulating an oral response to a question.
 The tone of questions should not be intimidating, annoying, insulting, or sarcastic.
Likewise, the volume of counsel's voice should not be intimidating.
 Terminology used in questions should be age or mental capacity appropriate.
 Legalese is to be avoided (for example "I put it to you", "my learned friend"
 The witness should not be subject to unduly repetitive questioning.
 Counsel should not mix topics or switch between topics. Events should be dealt with
in a logical and or chronological sequence.
 In cases where the witness clearly is incapable of understanding inconsistencies and
the inconsistencies only go to the issue of reliability, counsel should consider limiting
or abandoning cross-examination on otherwise proven inconsistencies.

CONCLUSION

Overall, the examination of vulnerable persons is a critical step in safeguarding their

well-being and ensuring their protection from harm. It requires a multidisciplinary
approach, sensitivity, and a commitment to upholding their rights and dignity. By

26
Criminal Procedure Act 1986 (NSW) s 306M. ‘Cognitive impairment’ is defined to include: (a) an
intellectual disability; (b) a developmental disorder (including an autistic spectrum disorder); (c) a
neurological disorder; (d) dementia; (e) a severe mental illness; (f) a brain injury.
conducting thorough examinations and promptly addressing any identified risks or abuses,
we can contribute to creating a safer and more secure environment for vulnerable
individuals in our society.