Anyone who gives evidence in a court must go into the witness box and be ‘sworn in’ either by oath or by affirmation. A person is sworn in by making an oath according to their religious belief and asked to promise to tell ‘the truth, the whole truth and nothing but the truth’. A person sworn in by affirmation gives a similar promise – but without taking a religious oath. If you wish to be sworn in by affirmation, rather than by oath, please let a member of the court staff know prior to the hearing. Once ‘sworn in’ a witness may sit down while he or she answers questions.
Examination in chief
Whoever calls a witness gets to question (or ‘examine’) the witness first. It is a good idea to have thought about examination before the hearing and considered what things you want each of your witnesses to tell the court. Some notes (even just some dot points) to remind you of what each witness needs to cover in his or her evidence will be a useful memory jogger.
Ask questions, don’t make statements. Keep your questions short. Ask only one question at a time. Listen to the answers (in case you need to ask a follow up question). And give your witnesses plenty of time to answer each question.
Cross-examination is the chance one party gets to question witnesses called by another party. Therefore you can expect that, during cross-examination, a witness will have his or her evidence challenged. That is what cross-examination is for. Generally though the cross-examiner will be polite and respectful. If you are being cross-examined try to remember:
to listen carefully to the questions
to not answer unless you understand the question
to answer only the question you have been asked. Don’t volunteer information
not to ask questions back
to say ‘I don’t know’ if you don’t know the answer
to answer audibly – not with a shake of the head or a nod. Gestures can’t be recorded by the court reporter
to say so if you think the question has already been asked
to stay calm
not to take things personally. The cross examiner is only doing their job
to tell the truth and the whole truth!
When you are cross-examining a witness you should:
always be polite and pleasant
pose questions rather than making statements
ask one question at a time
only ask things that are relevant
always give the witness plenty of time to answer
keep your objectives in mind
You don’t have to cross-examine any witness if you don’t want to. If you are going to cross-examine you should have purpose. For example, you may want to clarify a point, explain or expand on a point or ask questions about matters not covered in examination in chief.
After cross-examination the person who called the witness can ask further questions – but only if there are issues that arose in cross-examination that need clarification.
Evidence is recorded
All evidence given in a hearing is recorded. If the evidence is being taped, witnesses need to speak clearly into the microphone in the witness box. Witnesses also need to remember that gestures (for example, nodding in agreement or pointing) will not be heard or recorded.