Evidence, Proof and Examination of Witnesses
This domain tests admissibility and proof on the one hand, and the practical craft of examination-in-chief, cross-examination and re-examination on the other. Questions are commonly framed as a ruling you must make, or as a transcript of a cross-examination you must critique.
Fundamentals
- Relevance is the gateway to admissibility; exclusions then apply - hearsay, opinion, character, privilege, and unfairly or illegally obtained material.
- Distinguish the legal burden (who must persuade) from the evidential burden (who must raise enough to put a matter in issue).
- Standard of proof: beyond reasonable doubt in criminal cases, balance of probabilities in civil. Serious allegations in civil proceedings warrant a more cautious approach to the strength of the evidence.
- Identification evidence and disputed confessions call for specific scrutiny of the conditions in which they arose.
Examination-in-chief
Open, non-leading questions; leading only on introductory or undisputed matters. Follow the memory-refreshing rules before showing a witness a document.
Cross-examination
Leading questions, one fact per question, total control over pace. Never ask a question to which you do not know the answer. Put your client's case to the witness - failing to do so allows the court to discount that evidence later. Close on your best point, not your last.
Re-examination
Only matters arising out of cross-examination; no new case.
Worked example
An opposing witness says she saw your client at forty metres, at night. Cross-examination establishes: the lighting was a single sodium lamp, she wears spectacles and had none, the observation lasted four seconds, and her first description to police mentioned only the clothing. You do not accuse her of lying - you dismantle the conditions of observation, then put the client's case that he was elsewhere. The reasoning: reliability, not veracity, is the target; and putting the defence case preserves your client's account.
Traps that cost marks
- Cross-examining on an undisclosed or unproved document.
- Failing to put the defence case, inviting an adverse inference.
- Arguing at a witness instead of asking questions.
- Ignoring hearsay exceptions and the required notices.
- Re-examining beyond matters arising and reopening the whole case.