Evidence in chief part 1
During a case each side will present its evidence in turn. In a civil case it will normally be the claimant who starts. (There are occasional exceptions where the onus of proof on all effective issues is on the defendant: for the burden or onus of proof see the previous Friday article, Evidence part 2). In a criminal case it will be the prosecution which begins. Each side will have a series of witnesses. There may be other forms of evidence: documentary evidence; agreed statements or statements which the party is allowed to put in notwithstanding that the witness is not there; expert evidence. It is up to a party to decide which (if any) witnesses to call to give evidence. However a failure to call any witnesses or other evidence would be fatal for the claimant or prosecution on whom the burden of proof lies (since without any evidence that burden could never be met). The defence would only fail to call any evidence if either there was no useful evidence to be called, or the other side's case was so weak that it was felt that calling further evidence might only inadvertently serve to improve an existing poor case.
How witnesses give evidence depends upon whether these are civil or criminal proceedings. When your own witnesses give evidence it is called "evidence in chief". In criminal cases the witness will go into the witness box. Having taken the oath, and given their name and address and occupation, they will then be passed a series of questions. Although the witness will have given a written statement (for example the witness statements of prosecution witnesses are disclosed to the defence) that is not the evidence in the case. (It will only be introduced if for example the defence wish to cross examine on a discrepancy between the evidence given in court and the contents of the witness statement). The key thing to remember about evidence in chief is that the party calling the witness cannot "lead" the witness. That means that they cannot ask leading questions (save in respect of matters not in dispute). Leading questions are questions which suggest the answer. So for example, as part of a sequence of questions you could ask "What happened next?". You could not ask "Did the defendant then hit you with a hammer?".
The idea is that the witnesses are to tell their own story. Not merely to parrot or agree with suggestions from their own lawyer or the lawyer representing the side for which they are called. This of course means that examination in chief can be extremely difficult. Once a witness goes off course and starts giving answers which differ from those expected, it is very difficult without leading the witness to try and get a witness back on track. That is why, even though it is dealing with your own witness, some lawyers find evidence in chief so difficult.
Listening to, and watching, a witness giving evidence in chief is an important part of the preparation for cross examination. A written statement is not the same as actually hearing a person put the story in their own words. Moreover, when they give evidence they not only put it in their own words but you have an opportunity to observe them. Sometimes evidence seems much more compelling than it does on the printed page, sometimes much less reliable.
Next week we will look at evidence in chief in civil cases.