THE ART OF RE-EXAMINATION: THE DYING THIRD WHEEL OF TESTIMONY
By definition, a Re-Examination is an examination of a witness after a cross-examination, by the lawyer who called him as a witness, upon matters arising out of such cross-examination.
I have come to believe that trial courts, judges and lawyers in Ghana are or have become so extremely intolerant of re-examination that re-examination is literally dying in our courts. The reality is that often, at the end of the cross-examination, the judges and lawyers and witness are all very tired. Everyone is in a hurry to either leave the court room or call the next case. Therefore there is very little interest in subjecting the witness to further time in the witness box. Often, the lawyer who called him as a witness and led him in the examination-in-chief is probably feeling too lazy to go back and go through the cross-examination to see whether there are any matters on which a re-examination would be required. It is also likely that that lawyer has spent the entire period of the cross-examination raising pointless objections over matters which he properly should be re-examining the witness on.
Thus in the vast majority of trials that I have witnessed, the words of counsel whose witness has just undergone cross-examination are “there will be no re-examination, My Lord.” And in almost every re-examination that I have seen, the counsel who just completed his cross-examination has objected to virtually every question asked in re-examination on the grounds that “there is no ambiguity with respect to the matter.” Mea culpa, I would admit. But I believe that the time has come for lawyers to begin to do a neater and cleaner job for clients at the re-examination stage.
The law that regulates what can or cannot be done in re-examination is captured quite cryptically in section 73 of the Evidence Act, 1975 (NRCD 323), with the side-note “Scope of re-examination,” and in the following words:
(1) Subject to the discretion of the Court, re-examination shall be directed to the explanation of matters referred to in cross-examination. (2) A witness cannot be re-examined or otherwise further examined as to the same matter raised by the examining party on a previous examination without the leave of the Court, but the witness may be re-examined or otherwise further examined as to a new matter upon which the witness has been examined by another party to the action.
In subsection (1), we are told that re-examination should aim at explaining matters that came up during cross-examination. Subsection (2) bars the lawyer re-examining from examining on matter that he had raised in his examination-in-chief, and states that any re-examination or further examination is limited to new matters that the witness has been cross-examined on. The rather well-researched and well-written official commentary explains that the law does not allow infinite rounds of questioning, and that the opportunity afforded by Re-examination “is essentially limited to new matters raised on cross-examination.”
In buy brand name provigil OKUDZETO v. COMMISSIONER OF POLICE [1964] GLR 588, the Supreme Court stated that the object of re-examination is to explain evidence given under cross-examination, and that it is not to be used to get a witness to deny or cancel evidence already given under cross-examination. That is why where a witness’s evidence under cross-examination is subsequently contradicted by him in re-examination, the whole evidence of the witness should be discredited by the trial court.
And in purchase Lurasidone online SEATEC LTD. v. PENTON HOOK FARMS LTD. & ANOTHER [1984-86] 1 GLR 605, the Court of Appeal held that where a question had been properly objected to and rightly upheld during examination-in-chief, it would be improper for counsel to attempt to ask the same question in re-examination. What was more, if the witness was not cross-examined on a matter he could not be re-examined on that matter, because it did not arise out of the cross-examination.
It is in the light of the above that a lawyer re-examining is not permitted to ask any question that does not arise out of the cross-examination. He also has no right to ask his own witness leading questions at this stage. He will not be allowed to waste time by asking over again questions already put in chief.
The above limitations do not detract from the general position of the law re-examination affords the witness an opportunity of explaining any seeming inconsistency in his answers in cross examination. The witness is allowed to state the whole truth as to any matter which was touched on, but not fully dealt with in cross-examination. Human memory is not perfect. And the pressure of undergoing cross-examination can lead to slips, faulty perception and erroneous memory. The purpose of re-examination is to fix these, because after all, the court is more concerned with doing justice than scoring points in cross-examination. It is therefore a very important tool that counsel who call witnesses must not treat, and must stop treating, as trifling.