Small Claims Trials (20:XIV): Difference between revisions
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→6. Direct Examination
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Witnesses can be led on matters that are not in issue (e.g., their name, where they work, etc.). Leading questions tend to be ones where the answer is either yes or no. Leading the witness at the start will help the witness to relax. | Witnesses can be led on matters that are not in issue (e.g., their name, where they work, etc.). Leading questions tend to be ones where the answer is either yes or no. Leading the witness at the start will help the witness to relax. | ||
When asking questions about issues that are in dispute or are related to a party’s claim or defence, that party should refrain from suggesting answers to the witness. The witness must be allowed to give evidence in his or her own words. | |||
A witness must authenticate all documents that are entered into evidence unless the parties have agreed to their authenticity. When authenticating a document, pass three copies to the clerk: one for the judge, one for the court record, and another for the witness. Once the witnessed has identified the document, it will be entered into evidence and given an exhibit number. | |||
When the other party is conducting its direct examination, take detailed notes for cross-examination and closing arguments. | |||
=== 7. Cross-Examination === | |||
Once the direct examination of a witness has concluded, the witness may be cross-examined by the other party. There are two main purposes of cross-examination: to point out inconsistencies and omissions and to introduce facts or conclusions. If the witness has performed poorly or has not been damaging, it may not be necessary to cross-examine that witness. | |||
Some questions can make the situation worse. A witness should never be asked to repeat what he or she said in “chief”. This only emphasizes the point and allows the witness to clarify or minimise weaknesses | |||
At some point in cross-examination, the opposing version of the facts should be put to the witness to allow them to comment. This is known as the rule in ''Browne v Dunn'' and, if not followed, can result in less weight being placed on a witness’ evidence or the recall of adverse witnesses262. | |||
A witness should not allow the cross-examiner to misconstrue their evidence. If a question is unclear, the witness should ask for clarification. Only the question asked should be answered and additional information should not be volunteered. It is okay if the witness does not know the answer to a question; the witness should not guess the answer. | |||
'''NOTE:''' Parties should not speak to their witnesses after cross-examination and before or during re-examination about the evidence or issues in the case without the court’ s permission263. If such a discussion occurs, the witness’ evidence may be tainted and the court may not believe it. | |||
=== 8. Re-Examination === | |||
If new evidence is introduced during cross-examination that was not reasonably anticipated in direct examination or if a witness’ answer needs to be clarified or qualified, the judge may give permission to re-examine the witness on the new evidence264. During re-examination, leading questions cannot be asked. | |||
=== 9. Closing Arguments === | |||
Closing arguments are an opportunity for each party to persuade the judge of its position. Evidence that strengthens the case should be highlighted and evidence that weakens the case should be explained and addressed.The weaknesses should be addressed in the middle of the closing so that the closing may start and finish on positive notes. | |||
It may be necessary to comment on the credibility of witnesses, conflicts in testimony, and the insufficiency of evidence. The comments should be factual and allow the judge to arrive at a conclusion. | |||
