THE COURSE OF EVIDENCE AND EXAMINATION OF

WITNESSES IN AN ADVERSARIAL JUSTICE SYSTEM

©Dr Muthomi Thiankolu, MBS.
Senior Lecturer, University of Nairobi Faculty of Law.
Partner, Muthomi & Karanja Advocates.
Litigation Practitioner of the Year, 2024.
Lawyer of the Year (Runners Up), 2024.
Commonwealth Scholar, 2008.
Guest Lecture Delivered at the Strathmore University
Law School on 29th January 2025.
Scope of the Lecture
1. Nature of the (English) adversarial system of
justice
2. Course of Evidence and Examination of
Witnesses (sections 145, 146 of the Evidence
Act)
 Examination-in-Chief.
 Cross-Examination.
 Re-Examination.
 The Adversarial System of Justice:

⧫ The (English) common law system of justice entails the elucidation of facts
using questions put by parties or their lawyers to witnesses mainly
summoned by them, and mainly in the order of their choice before a judge
primarily acting as an umpire rather than as an inquisitor (i.e. as a
disinterested adjudicator who does not conduct independent investigations
or descend into the arena of the dispute).
See East of England Ambulance Service v Sanders [2015] ICR 293 (tribunal
conducting internet research on an issue not raised by the parties).
⧫ This system, in which the judge merely plays the role of umpire, is called an
“adversarial” or “ accusatorial” system of justice.
 The Adversarial System of Justice:
• “…the [trial Judge’s] interventions, taken together, were far more than
they should have been. In the system of trial which we have evolved in
this country, the judge sits to hear and determine the issues raised by the
parties, not to conduct an investigation or examination on behalf of
society at large, as happens, we believe, in some foreign countries…The
judge's part when evidence is being given is to hearken to it, asking
questions of witnesses only when it is necessary to clear up a point; to
see that advocates behave themselves seemly and keep to the rules laid
down by law; to exclude irrelevancies and discourage repetition; to make
sure by wise intervention that he follows the points made by the
advocates and can assess their worth; and at the end to make up his
mind where the truth lies. Though a judge is entitled and bound to
intervene at any stage of a witness's evidence to understand the nature
of the evidence, such intervention should be as infrequent as possible…”
– Per Denning L.J. (later Lord Denning) in Jones v National Coal Board [1957] 2 Q.B. 55
at pp. 63-64 (judge unduly intervening in the examination of witnesses).
 The Adversarial System of Justice:

⧫ The adversarial system of justice is followed in most

common law countries. It is based on the
assumption that justice is achieved when the more
effective adversary can persuade the trier of fact
that their version of the disputed facts is correct.
⧫ Kenya follows this adversarial system of justice.
⧫ In Kenya, the rules for examining witnesses are set
out in Parts III to IV of the Evidence Act (sections
Privilege of Examining Witnesses
“Advocates have a remarkable privilege. They are
allowed to ask highly personal questions of people in a
public arena. And people must answer them. Few
others have this privilege, apart from judges, and
sometimes politicians. There is a danger that advocates
can march into people’s lives, turn them completely
upside down, and waltz out for a glass of wine.”
 Ian Morley, The Devil’s Advocate: A Spry Polemic on
How to be Seriously Good in Court (3rd Edn, Sweet &
Maxwell 2020) 195.
 Cardinal Rules on Examining Witnesses
1. Do not become blasé or insensitive (your work impacts others’
lives).
2. Witnesses are humans, not objects (demonstrate empathy,
kindness (not harshness), understanding, etc.).
3. Always be polite/courteous to all witnesses, especially adversary
witnesses (no room for anger, disdain, answering back etc.).
4. Always put all witnesses, including adversary ones, at ease (no
harassment, badgering, shouting, intimidation, etc.).
5. Keep all questions short and precise.
6. Ask one question at a time (not multiple questions rolled into
one long sentence).
Cardinal Rules on Examining Witnesses
7. Know the question before you ask it (to avoid the
clumsiness and irritation of fill-ins like—
• “Errum Eh” before figuring out the question; and
• “Right?” “Ok,” “And,” “So,” etc. in response to
witness answers (especially if you don’t agree
with the answers); or
• Idly repeating the answers given by witnesses to
fill in the thinking space between questions.
Cardinal Rules on Examining Witnesses
“And what happens with fill-ins is that the
tribunal begins to listen out for them, and stops
listening to the substance of the evidence,
smiling inwardly at every time you do it again,
thinking you are a buffoon. You can’t be
persuasive if they think you are a buffoon.”
 Ian Morley, The Devil’s Advocate: A Spry Polemic on
How to be Seriously Good in Court (3rd Edn, Sweet &
Maxwell 2020) 211.
 Types of Examination of Witnesses

Section 145 of the Evidence Act provides for

three types of examinations of witnesses,
namely:
1. Examination-in-chief: i.e., the examination of
a witness by the party who calls him;
2. Cross-Examination: i.e., the examination of a
witness by the adverse party or by any other
party to the proceedings; and
3. Re-examination: i.e., the examination of a
witness, after cross-examination, by the party
who called him.
 General Order of Examining Witnesses

 The sequence of events in giving evidence under

section 146 (1) of the Evidence Act is that—
 witnesses shall first be examined-in-chief;
 then, if the adverse party so desires, cross-examined;
and
 then, if the party calling them so desires, re-
examined.
 We highlight selected rules for each type of
examination in the ensuing parts of this presentation.
 Examination-in-Chief: General Comments

Examination-in-Chief refers to questioning a

witness by the party who has called/brought
the witness.
During examination-in-chief, the party calling
a witness or his advocate will seek to elicit
evidence which supports his version of the
facts in issue.
Examination-in-Chief: General Tips
1. A witness who is gently settled or put at ease through easy
preliminary questions is more likely to say what you require.
2. Be careful of voice intonation, as you may be accused of suggesting
the correct choice of answer from how you ask the question.

3. Avoid the standard phrase “What happened next?”

4. Take things chronologically.
5. Know your objectives with each witness (the specific aspect/part of
the claim or defence they will prove or disprove).
6. Examining a witness is not a general inquiry; it is focused on what
you need for the closing speech.
 Examination-in-Chief
(Three General Rules)
1. A witness favourable to the party calling him, even if
not particularly forthcoming, may not be asked leading
questions;
2. A witness who has difficulties in recollecting the
events to which his evidence relates is permitted to
refresh his memory by reference to a former written
statement that he has made but may NOT be asked in-
chief about former statements made by him and
consistent with his evidence in the proceedings;
3. A witness who gives evidence unfavourable to the
party who has called him may NOT be asked by that
 Examination-in-Chief: Leading Questions

 A party calling a witness and seeking to elicit evidence

supporting his case often faces a witness who,
although favourable, is not particularly forthcoming.
 In such cases, the advocate of the party calling the
witness is naturally tempted to put words into the
witness’s mouth and explain what he wants the
witness to say.
 The general rule in examination-in-chief, however, is
that a witness may not be asked a leading question
during examination-in-chief (see section 150 (1) of the
Evidence Act).
 Examination-in-Chief: Leading Questions

Under section 149 of the Evidence Act, leading questions are:

1. those so framed as to suggest the answer sought (e.g., “did
X hit you in the face with his fist?”); or
2. those so framed as to assume the existence of facts yet to
be established. If, for instance, evidence has not yet been
given of an assault, it would be improper to ask in-chief
“what were you doing immediately before X hit you?”
NB: Evidence elicited by leading questions is admissible, but it is
usually accorded little to no weight.
 Examination-in-Chief: Leading Questions

 In Moor v Moor [1954] 2 All ER 458, the lawyer of a wife

petitioner in an undefended divorce petition asked her a
series of leading questions in-chief.
 Some of the questions she was asked were:
1. “did you suspect that your husband was having relations
with someone else?” and
2. “As a result of those suspicions, did you leave your house
in October 1936?”,
to which she replied an expected answer; “yes”
The trial judge declined to exercise his discretion in the wife’s
favour (on the ground that she had equally been guilty of
adultery and had started the chain of events that led to the
marriage breakdown) and dismissed the divorce petition.
 Examination-in-Chief: Leading Questions

Held (on appeal, by Lord Evershed MR): to adduce

evidence in undefended divorce suits (read “all
suits”) in the form of “yes” or “no” to a series of
leading questions was irregular and had the effect of
making the answers either not at all impressive or far
less impressive than they otherwise would be, and it
as for the trial judge to stop this irregular method of
conducting such cases.
 Examination-in-Chief: Leading Questions

NB: Leading questions may be asked in-chief—

1. On formal and introductory matters, such as the
name and address, as opposed to the facts in
issue (section 150 (2) of the Evidence Act);
2. On facts that are not in dispute;
3. Where the party calling the witness has obtained
the leave of the court to treat the witness as
hostile.
 Examination-in-Chief: Leading Questions

“If you lead, the tribunal knows you have suggested the answer, and
so the value of the evidence is diminished. Leading will undermine
your own case...As a rule, a non-leading question will begin:
Who…? What …? When …? Where …? How …? Please describe…
Questions which begin this way are so non-leading, they can be
called open questions…So, be careful of asking closed questions
without first having laid the foundation through open questions for
the basis of your closed question…with closed questions, be very
careful to provide a genuine choice.”
 Ian Morley, The Devil’s Advocate: A Spry Polemic on How to be
Seriously Good in Court (3rd Edn, Sweet & Maxwell 2020) 213-
221.
 Examination-in-Chief: Leading Questions

“If the answer you want is obvious among several choices,

you will be criticised:
‘was it so dark you could not have seen anything, or may just a
bit, or were you able to see well enough to have a clear view of
the burglar’s face?
In theory, there is a choice, but assuming you are
prosecuting, it is pretty obvious what you want the witness
to say. The choice is not genuine. The question is leading.”
 Ian Morley, The Devil’s Advocate: A Spry Polemic on
How to be Seriously Good in Court (3rd Edn, Sweet &
Maxwell 2020) 221.
 Examination-in-Chief
(Previous Consistent Statements)
 The general rule at common law was that a witness could not
be asked in-chief whether he had formerly made a statement,
oral or written, consistent with his present testimony (see
Cross & Taper p. 299-300).
 The witness could not also narrate or refer to a former
consistent statement, save for the limited purpose of
refreshing his memory.
 The rationale for the rule is simple: doing otherwise would
make it very easy to manufacture evidence. It is also thought
that the rule serves to save time since giving the evidence of
such a statement would only serve to duplicate the evidence
given on oath.
 At common law, however, evidence of previous consistent
statements was admissible in-chief in the following instances:
 Examination-in-Chief
(Previous Consistent Statements)
1. by complainants in sexual offences, where it was said that a
victim of rape ought to raise “hue and cry” “as soon as could
reasonably be expected” (see Cross & Taper at pp. 301 and
302. See also R v Lillyman [1896] 2 Q.B. 167);
2. to rebut suggestions/allegations that the witness has
fabricated their testimony;
3. statements on the accusation of an offence (admissions and
confessions);
4. statements made by the accused on the discovery of
incriminating articles (in cases of theft, handling stolen
goods. Any statements made by the accused, if he testifies to
the same effect, are admissible as evidence of consistency);
5. previous identification of the accused; and
6. statements admissible as part of the res gestae.
 Examination-in-Chief
(Previous Consistent Statements)
NB: Under section 165 of the Kenyan Evidence Act, evidence
may be given as to a witness’s previous consistent statements
if an issue is raised as to the consistency of the witness:
“to show that the testimony of a witness is consistent any
former statement made by such witness, whether written or
oral, relating to the same fact at or about the time when the
fact took place, or before any authority legally competent to
investigate the fact, may be proved.”
NB: a witness can be cross-examined as to previous
inconsistent statements to impeach their credibility (see ss.
153 of the Evidence Act, which is a replica of section 5 of the
English Criminal Evidence Act 1865. See also section 163 (1)
(c) of the Evidence Act).
 Examination-in-Chief
Unfavourable & Hostile Witnesses

 An unfavourable witness is one who, although he

displays animus (i.e., a strong feeling of
opposition, anger or hate) towards the party
calling him, fails to come up with proof or gives
evidence that undermines that party's case.
 A hostile witness, on the other hand, is a witness
who, in the judge’s opinion, shows no desire to
 Examination-in-Chief
Unfavourable & Hostile Witnesses

 A party seeking to elicit evidence supporting his version of the facts

in issue may call a witness who fails to come up with proof or who
gives evidence in support of his adversary’s version.
 In such instances, the party may naturally be tempted to attack the

witness’s credibility.
 The general rule at common law, however, is that a party is not

permitted to impeach the credit of his witness. Further, the general

rule holds that a party cannot call evidence concerning his witness’
bad character, convictions, prior inconsistent statements or bias.
 Examination-in-Chief
Unfavourable & Hostile Witnesses
 The rationale for the rule has been given in the
following terms (See Adrian Kean, at p. 144):
“it would be repugnant to principle, and likely to
lead to abuse, to enable a party, having called a
witness on the basis that he is at least in general
going, to tell the truth, to question him or call other
evidence designed to show that he is a liar.”
 At common law, and under section 161 of the
Evidence Act, however, a judge may, as a matter of
discretion, allow cross-examination of a hostile
witness by the party calling him.
 The application to treat a witness as hostile may be
 Examination-in-Chief
Unfavourable & Hostile Witnesses
 A witness may be hostile for various (mostly selfish or
ulterior) reasons.
 The dictum of Erle CJ in Melhuish v Collier (1850) 15
Q.B. 879 at 890 (quoted in Cross & Taper at p. 310)
explains, by way of illustration, why the courts might
give leave to treat one’s witness as hostile :
“There are treacherous witnesses who will hold out that they
can prove facts on one side in a cause and then, for a bribe or
for some other motive, make statements in support of the
opposite interest. In such cases, the law undoubtedly ought
to permit the party calling the witness to question him as to
the former statement, and ascertain, if possible, what
induces him to change it.”
 Examination-in-Chief
Unfavourable & Hostile Witnesses

 The authorities indicate, however, that whether or not a

witness is hostile is a matter for the discretion of the trial
court (leave will not necessarily be granted as a matter of
course, even where animus/hostility is established).
 The authorities further indicate that a judge’s refusal to
grant leave to treat a witness as hostile will seldom be
overturned on appeal (see Rice v Howard [1886] 16 QBD
681 and Price v Manning [1889] 42 Ch D 372 CA).
 Examination-in-Chief
Unfavourable & Hostile Witnesses
 NB: Although a party may not attack the credibility of
his unfavourable witness (e.g. by cross-examining or
pointing to the witness’s bad character or incredibility),
he is nonetheless allowed to contradict the witness by
calling other evidence that supports his version of the
facts in issue, even if that other evidence is
inconsistent with the testimony of the unfavourable
witness.
In Ewer v Ambrose (1825) 3 B & C 746, the defendant
called a witness to prove a partnership, but the witness
proved the contrary. It was held that the defendant
could rely on the testimony of other witnesses to
support the partnership’s existence. Harlroyd J held:
 Examination-in-Chief
Unfavourable & Hostile Witnesses

“if a witness proves a case against the party calling

him, the latter may show the truth by other witnesses.
But it is undoubtedly true that if a party calls a
witness to prove a fact, he cannot when he finds the
witness proves the contrary, give general evidence to
show that the witness was not to be believed on his
oath, but he may show by other evidence that he is
mistaken as to the fact which he is called to prove.”
 Refreshing Memory

 The common law system of justice attaches more weight to the

answers given by witnesses in court on oath or affirmation than
to oral or written statements previously made by them.
 Witnesses, however, often have trouble recollecting events to
which their evidence relates, especially when those events
took place long ago.
 At common law, such witnesses may, while giving evidence,
refresh their memory by reference to a document (e.g., a diary,
logbook, account book etc.) subject to the following conditions:
 Refreshing Memory

1. The document must have been made or verified by

the witness contemporaneously with the events in
question;
2. The document must be produced for inspection by
either the court or the opposing party (see section
169 of the Evidence Act); and
3. The document must be an original; otherwise, the
leave of the court will be necessary (see section 167
(3) of the Evidence Act).
 In Kenya, the modern rules on refreshing memory are
set out in section 167 of the Evidence Act.
 Section 167 (1) of the Evidence Act provides that:-
 Refreshing Memory

“A witness may, while under examination, refresh his

memory by referring to any writing made by himself at
the time of the transaction concerning which he is
questioned, or made so soon afterwards that the court
considers it likely that the transaction was at that time
fresh in his memory.”
Section 167 (2) of the Evidence Act, on the other hand,
provides that—
“A witness may, while under examination, refresh his
memory by referring to any writing made by any other
person and read by the witness within the time
mentioned in sub-section (1), if when he read it he
knew it to be correct”
 Refreshing Memory

NB:
1. Section 167 refers to witnesses “under examination”.
The section suggests that the statutory rules on
refreshing memory are not limited to any examination
stage (in-chief, cross or reexamination).
2. A witness who refreshes his memory by reference to a
document may be cross-examined by the adverse party
on the contents of the document (see section 169 of
the Evidence Act)
3. Where a witness refreshes their memory by reference
to a document, it is the oral testimony of the witness
whose memory is refreshed rather than the document,
which constitutes the evidence in the case.
 Refreshing Memory

Even when a witness is cross-examined on a

document used to refresh memory, the cross-
examination will not make the document part of the
evidence. The document may nonetheless become
relevant and admissible in evidence (see Adrian
Kean, at p. 129) where:
1. the cross examination involves a suggestion that the
witness has subsequently fabricated the document
(the document becomes admissible to rebut the
suggestion); or
2. it is inconsistent with the witness’ evidence (it
becomes admissible to show the inconsistency. See
also section 11 of the Evidence Act).
 Refreshing Memory

3. Even where a document becomes admissible,

as stated above, it is admitted not as evidence
of the facts contained therein but rather as
evidence of the witness’s consistency, or as
the case may be inconsistency, going only to
the witness’ credit.
 Refreshing Memory

 In Maugham v Hubbard (1828) 8 B & C 14, a witness called

to prove that he had received a sum of money looked at an
unstamped acknowledgement signed by himself and
thereupon gave evidence that he did not doubt that he had
received the money. However, he had no recollection of
having done so.
 Held: The witness’s oral evidence sufficed to establish
receipt of the money; the written acknowledgement not
being evidence in the case because it was not stamped.
Previous Consistent Statements
(Illustrative Cases)

 In R v Lillyman [1896] 2 Q.B. 167, the appellant was charged with the

offence of attempted rape and indecent assault upon a girl who had
complained to her mistress.
 An issue arose regarding whether evidence of the complaint made to

the mistress was admissible in-chief.

 Held: the fact that the girl made a complaint shortly after the alleged
occurrence, and the particulars of such complaint, may be given in
evidence on the part of the prosecution, not as evidence of the facts
complained of, but as evidence of the consistency of the conduct of
the complainant with the story told by her in the witness box, and as
negativing consent on her part.
Previous Consistent Statements
(Illustrative Cases)
• In R v Athwal & Another [2009] 1 WLR 2430, the
defendants, a mother and her son, were charged with the
murder of the son’s wife in December 1998.
• The prosecution case was that the defendants had lured the
deceased to India, and that she had been murdered there.
• At trial in 2007, a witness, another of the first defendant’s
daughters-in-law, gave evidence that shortly before the trip
to India she had been present at a family meeting at which
the first defendant had said that she had decided to take
the victim to India to get rid of her, and that shortly after
the first defendant’s return from India the first defendant
had told her that the victim had been killed there by a
friend of her brother’s.
Previous Consistent Statements
(Illustrative Cases)

 The witness had given the same account to police

for the first time in a witness statement made in
October 2005.
 The cross-examination of the witness suggested
that her evidence was pure fabrication.
 The prosecution sought to re-examine her to
establish that she had first given her account to her
Previous Consistent Statements
(Illustrative Cases)

• The trial judge ruled that the effect of the cross-

examination had been to suggest recent fabrication
and that, therefore, the witness could be re-examined
to rebut that suggestion, and that her father and sister
should be permitted to give evidence of the
circumstances in which the witness had first shared her
account to them.
• The trial judge then proceeded to convict the
appellants.
• Held (dismissing the appeal): the witness's previous
consistent statements were admissible to rebut the
suggestion of recent fabrication.
Previous Consistent Statements
(Illustrative Cases)

• In R v Oyesiku [1971] 56 Cr App Rep 240, the

accused was convicted of assaulting a police officer.
In cross-examination, it was put to the accused’s
wife, who had given evidence that the police officer
was the aggressor, that her evidence had been
recently fabricated.
• Held: The trial judge had improperly refused to
admit evidence of a previous statement consistent
with the accused’s wife’s testimony and made by
her to a solicitor after her husband’s arrest but
before she had seen him.
Hostile & Unfavourable Witnesses
Illustrative Cases
• In Rice v Howard [1886] 16 Q.B. 681, the defendant's
counsel, to show that a witness called by him was hostile
and to obtain leave to treat him as such under s. 22 of the
Common Law Procedure Act 1854 asked the judge to look
at an affidavit made by the witness in a former action.
• The judge, thinking that there had been nothing in the
witness's demeanour or how he had given his evidence to
show that he was hostile, refused to look at the affidavit.
• Held (on appeal): The judge’s discretion under s. 22 of the
Common Law Procedure Act of 1854 was absolute, and
the Court had no jurisdiction to review his decision.
 Hostile & Unfavourable Witnesses
Illustrative Cases

• In Price v Manning [1889] 42 Ch D 372 CA, counsel for

the Plaintiff called the Defendant as a witness to prove a
point in his case.
• The Defendant was then cross-examined by his counsel.
• In his re-examination, the Plaintiff's counsel attempted
to put questions to the defendant in the nature of cross-
examination. Still, the trial judge refused to allow this to
be done.
• The plaintiff appealed, arguing that the Judge was wrong
in disallowing the questions, as the Defendant was, of
necessity, a hostile witness, and in that case, the
Plaintiff had a right to cross-examine him.
 Hostile & Unfavourable Witnesses
(Illustrative Cases)

• Held:
1. A party to an action who calls an opponent as
a witness has no right to cross-examine him,
however hostile he may be, without the leave
of the Judge; and
2. Whether the witness is a litigant or not, it is
a matter of discretion in the Judge whether
he shows himself so hostile as to justify his
cross-examination by the party calling him.
 Hostile & Unfavourable Witnesses
(Illustrative Cases)

• In R v Pettit [1983] Q.B. 25, the appellant was

charged with two offences of assault occasioning
actual bodily harm to his eight-month-old baby.
• His wife made a witness statement which was
prejudicial to him. She was called as a prosecution
witness at his trial, but during her evidence in-chief
she gave answers inconsistent with her statement.
• The judge granted a prosecution application to treat
her as hostile, and she was cross-examined on her
witness statement.
• The appellant was convicted.
 Hostile & Unfavourable Witnesses
(Illustrative Cases)

¨ Held (allowing the appeal):

1. a wife retained her right not to give evidence against

her husband until, with full knowledge of that right,
she took the oath at the trial of her husband;

2. once the wife had started to give evidence, she was

to be treated as an ordinary witness, and if the
nature of her evidence warranted it, she could be
treated as a hostile witness;
 Hostile & Unfavourable Witnesses
(Illustrative Cases)
3. the wife had not sufficiently appreciated her right to refuse to
give evidence against her husband; although the judge had
advised the jury to disregard her evidence and directed them
that her statement did not constitute evidence, it was
possible that the jury were affected by the contents of the
wife's statement and, accordingly, the conviction was unsafe
and unsatisfactory.
4. it is desirable that where a wife is called as a witness
for the prosecution of her husband, the judge should
explain to her in the absence of the jury, that before
she takes the oath she has the right to refuse to give
evidence, but that if she chooses to give evidence she
may be treated like any other witness.
 Object & Purpose of Cross-Examination

 Cross-examination serves two principal purposes:

1. to elicit information concerning the facts in issue or relevant to
the issue that is favourable to the party on whose behalf the
cross-examination is conducted; and
2. to cast doubt upon the witness's accuracy, credibility or veracity.
 NB: see section 154 of the Evidence Act.
 The above purposes are central to accurate fact-finding and
fairness of proceedings. That is why Article 50 (2) (k) of the
Constitution says that the right to a fair trial includes the
right to “adduce and challenge evidence.”
 The importance of cross-examination in the adversarial
system of justice has variously been emphasised by
different commentators:
 Cross-Examination

“The graveyard of adverse verdicts is littered with the remains of

disastrous cross-examinations, led to their demise by inept or
overzealous advocates. Yet, the myth persists of a brilliant lawyer
blessed with a keen intellect and a quick wit dismantling a witness
and winning her case with an exhaustive and withering cross-
examination. As enticing as the prospect of executing a winning
and decisive cross-examination appears, the sobering reality is that
trials are seldom won on cross-examination but are rather
frequently damaged, sometimes fatally, by inept cross-
examinations.”
Harry M Cardwell and Deanne S Elliot, ‘
Avoiding the Wrecking Ball of a Disastrous Cross-Examination: Nine Principl
es for Effective Cross-examiners with Supporting Empirical Evidence
 Object & Purpose of Cross-Examination

 “the best-known purpose of cross-examination is to test the

witness’s credibility. But there can be several other purposes
as well: for example, to provide a more complete story than
the edited one presented during direct examination, to
explore the weakness in the logic of the opponent’s case, and
to gain concessions about facts, thereby making them as
irrefutable as possible. Cross-examination thus is seen as a
strategically powerful resource in litigation and arbitration.”
 Vijay K. B. (2011) Judicialisation of International
Commercial Arbitral Practice: Issues of Discovery and Cross
Examination, 1 (1) Lapland Law Review, 15-29 at p. 22.
 Object & Purpose of Cross-Examination

¨ “cross-examination is beyond doubt the

greatest legal engine ever invented for the

discovery of truth ”____Wigmore on Evidence, 3rd

Edition, Vol. V para 367.

 Cross-Examination
(Three General Tips)

1. Unless you can achieve either of the two principal

objects of cross-examination, do not do it.
2. Always think and act like a commando (don’t lay siege or
seek more than what you aimed for. Go in, get what you
want and get out).
3. Always ask leading questions (check your Evidence Law
handout for Lesson 7).
4. Never ask a question whose answer you do not know
(otherwise, it will end in ‘premium tears’).
 Cross-Examination
(Three General Tips)
5. Always ask questions that attract “yes” or “no” answers, not
explanations.
7. Always appear and sound polite, respectful, gentle and harmless
during cross-examination (so that the witness will drop their
guard and divulge useful information).
8. Insist on answers to questions or urge the tribunal to note and
record a witness’ evasiveness or refusal to answer questions.
9. Cross-examination is always about bending perception (i.e.,
getting the tribunal to see the case from your point of view).
10.Never, ever ask a witness to explain.
 Cross-Examination
(Three General Tips)

11.Reserve your comments to the tribunal (at the closing),

not to the witness.
12.Don’t demonstrate excitement at getting a fantastic
answer.
13.Never ask a witness for help (he will kick you in the
head).
14.Ask only one thing at a time.
15.When putting your case, tell the witness he disagrees
with it.
 Cross-Examination
(Three Immutable Rules)
 A good legal practitioner should note the following about
cross-examination:
1. a lawyer should not cross-examine unless they must. The
answer as to whether one should cross-examine should
depend on whether the intended cross-examination can
achieve any of the two principal purposes of cross-
examination set out in the preceding slide; and
2. a lawyer should never ask in cross-examination a
question whose answer they do not know.
 Cross-Examination
(Three Immutable Rules)

3. The general rules on relevance and admissibility of

evidence apply to cross-examination. To illustrate—
 a witness cannot be cross-examined, for instance,
on an inadmissible confession (see R v Brophy
[1982] A.C. 476) and Wong-Kam-Ming v R [1980]
A.C. 247) or other inadmissible evidence; and
 the rule against hearsay applies to answers given
in cross-examination.
Cross-Examination: Don’t Do It
“People at law school dream of the day they will cross-examine. Their role model
is rarely a real advocate whom they have watched in court. Usually it is a TV
character, from LA Law, from Perry Mason, from Petrocelli, (I’m showing my age
again…), maybe A Few Good Men, or even Suits which is more recent, great fun,
but daft – these are role models from a host of bad films with bad plots,
sometimes good shows with good plots, and these examples are all
COMPLETELY USELESS.
On TV, witnesses blub.
They are exposed as liars, cheats, villains. They admit guilt.
They eventually agree tearfully with the cross-examining lawyer, the judge
bangs his gavel, and there are gasps from the public gallery. The advocate
swaggers to his seat while the witness seems metaphorically a dead duck.
IT DOES NOT HAPPEN LIKE THAT IN REAL LIFE.”
Ian Morley, The Devil’s Advocate: A Spry Polemic on How to be Seriously Good
rd
Cross-Examination: Don’t Do It
“A witness under cross-examination does not want to agree with you.
He will fight tooth and nail to confound you. He will
misunderstand your questions.
He will provide evasive answers.
He will try to use your questions as an excuse to repeat the deadly features
in his testimony which destroy your case.
But blub? Never.
‘It's a fair cop guv’, you've got me bang to rights?’ Never.
Unlike TV, a witness has no script which must be followed. He will try
everything to wriggle out from under your questions.
Every question in cross-examination is an INVITATION TO DISASTER.”
Ian Morley, The Devil’s Advocate: A Spry Polemic on How to be Seriously
Good in Court (3rd Edn, Sweet & Maxwell 2020) 231.
Cross-Examination: Act Like a Commando
“Imagine a stealthy nighttime raid on an enemy camp housing
superior troops. The raider's sole goal is to get behind enemy lines
to reconnoiter the enemy's fortifications and to return safely.
There may be some targets of opportunity that present themselves
during the foray, but engaging the targets could lead to a direct
confrontation, jeopardizing the entire mission. That temptation to
push beyond what is realistically and safely obtainable must be
resisted. Cross-examination is about identifying and obtaining
realistic goals without risking trial success.”
Harry M Cardwell and Deanne S Elliot, ‘
Avoiding the Wrecking Ball of a Disastrous Cross-Examination: Nine Principles for Effe
ctive Cross-examiners with Supporting Empirical Evidence
’ (2018) 70 (1) South Carolina Law Review 1, 4. The wording changed slightly after
Cross-Examination: Do No Harm
“Much like the oath taken by physicians to "first, do no harm," trial lawyers should
heed that same admonition. Cross-examination…requires a risk-averse assessment
of the overall trial strategy, combined with a careful execution of questioning.
[Adopt] techniques to turn the witness in your favour, like extracting helpful points
during a cross-examination rather than attacking a witness...An overly aggressive
cross-examination runs the risk of losing the advocate any goodwill or likeability
previously developed at trial…Cross-examination, by its very nature, is a hostile
exercise often sparking conflict…Cross-examiners perceived as unnecessarily
aggressive or disrespectful will pay the cost with their jurors. Throughout this
hostile phase of trial, it is particularly critical for advocates to be measured and
respectful, with few exceptions. The information to be obtained during cross-
examination can be gotten without slipping into an attack mode.”
Harry M Cardwell and Deanne S Elliot, ‘
Avoiding the Wrecking Ball of a Disastrous Cross-Examination: Nine Principles fo
r Effective Cross-examiners with Supporting Empirical Evidence
Cross-Examination: Never Ask a Question
Whose Answer You do Not Know
“A notable example of asking an unprotected question occurred when former
prosecutor Arthur Liman examined Colonel Oliver North as part of the Iran-Contra
investigation:
Q: "Colonel North, was the day Iran[-]Contra unraveled the worst day of your life?“
A: "No, Mr. Liman, the worst day was in Viet Nam [sic] when I was in a foxhole with
my best friend, and the Viet Cong threw a grenade into the foxhole, and my friend
threw himself on top of it and saved my life. My best friend died. That was the worst
day of my life.“
Colonel North's answer devastated Liman's cross-examination and gained North the
sympathy of the nation. Liman overreached with an unprotected and unnecessary
question, giving the witness the opportunity to give an answer that called the
examiner's motives into question and simultaneously boosted the witness's character.
Venturing into the unknown can be devastating for a cross-examination.”
Harry M Cardwell and Deanne S Elliot, ‘
Avoiding the Wrecking Ball of a Disastrous Cross-Examination: Nine Principles for Eff
Cross-Examination: Never Ask a Question
Whose Answer You do Not Know
Defence Advocate: Is it your conclusion that this is the gun used to shoot the deceased?
Prosecution Witness: Yes.
Defence Advocate: What’s the basis of your conclusion?
Prosecution Witness: I ran tests on the gun barrel, the shell casings, and the bullet
recovered from the deceased’s body.
Defence Advocate: Are you a ballistics expert?
Prosecution Witness: Yes.
Defence Advocate: What is your educational background?
Prosecution Witness: Your Honour, I hold a BSC from Egerton University, from which I
graduated with First Class Honours and top of my class. After graduating, I got a
scholarship to study for a Masters degree at MIT, majoring in ballistics. After leaving
MIT, I was one of a few elite officers selected for a specialised two-year ballistics
training in Israel. After returning from Israel, I was posted to the Ballistics Department,
which I head. I am, in addition to being the Head, a trainer of trainers at the Ballistics
Department.
Cross-Examination: Maintain Tribunal
Rapport
“It is, of course, axiomatic that advocates throughout trial must
cultivate and maintain goodwill with their jurors. Jurors respect
professionalism and competence. Conversely, an advocate who
appears unprepared, disorganized, or disrespectful will not
engender confidence or goodwill with his jurors. Professionalism
and confidence begets trust and credibility. Throughout a trial,
jurors are taking measure of the advocates, and those advocates
who best instill that sense of professionalism hold an advantage
over their adversaries, even so far as to impact the verdict.”
Harry M Cardwell and Deanne S Elliot, ‘
Avoiding the Wrecking Ball of a Disastrous Cross-Examination: N
ine Principles for Effective Cross-examiners with Supporting Em
 Scope of Cross-Examination

 Cross-examination is not limited to the matters

raised during a witness’s examination-in-chief.
The scope of cross-examination is generally
unlimited (see section 146 (2)).
 The rationale for the unlimited scope of cross-
examination has recently been explained in the
following terms:
 Scope of Cross-Examination

¨ “…the learned [trial] Judge proceeded on the basis, in the event

erroneous, that the Election Petition Rules had somehow
diminished the importance and critical place of cross-
examination...There is no basis for such a view. There is equally
no basis for the notion that Rule 15 (3) confines or limits cross-
examination to such issue as a witness deposed to in the filed
affidavit. Were that the case, the trial of election petitions would
be rendered a travesty of justice wherein deponents would swear
only to scanty and safe matters secure in the knowledge that
what they concealed would remain suppressed by such
curtailment of cross-examination. Such perverse consequence
cannot reasonably be said to have been expressed or intended by
the Rules Committee”
¨ _Per Kiage JA in Ferdinand Ndung’u Waititu v Independent Electoral &
Boundaries Commission & 8 Others (Civil Appeal No. 324 of 2013)
 Scope of Cross-Examination

Cross-examination, therefore, may extend to anything,

including—
1. Accuracy or veracity of the testimony given in-chief
(section 154 (a)
2. character and credibility of the witness (section 154 (c),
subject to the qualifications in sections 157 and 158);
3. previous inconsistent statements (at common law,
witnesses may be cross-examined on their previous
inconsistent statements. See Cross & Tapper at p. 318.
See also sections 153 and 163 (1) (c) of the Evidence Act.
NB: the attention of the witness must be drawn to the
statement before it can be proved to contradict him); and
4. facts inconsistent with the witness’s testimony.
 Scope of Cross-Examination

NB: Although the scope of cross-examination is generally

unlimited, the court has powers to—
 forbid indecent or scandalous questions, although such
questions may have some bearing on the questions
before the court unless they relate to facts in the issue or
to matters necessary to be known to determine whether
or not the facts in the issue existed (section 159);
 forbid insulting or annoying questions, or questions that
are in the opinion of the court needlessly offensive in
form (section 160); and
 regulate the proceedings and time and curb excessive
cross-examination.
 Cross-Examination
Witnesses Liable to Cross-Examination

 As a general rule, all witnesses are liable to be

cross-examined not only by the opponent of the
party calling him but also by any other party to the
case (see Cross & Tapper at p. 316, Halsbury’s
Laws of England, 3rd Edn vol 15 at p. 443 and
Adrian Kean, p. 149 see section 173).
 There are three main exceptions to the above
general rule, namely:
 Cross-Examination
Witnesses Not Liable to be Cross-Examined
1. a person who is not sworn, being called merely to produce
or verify a document (see section 147 of the Evidence Act);
2. a witness called by the judge or magistrate (such a
witness may nonetheless be cross-examined with the leave
of the judge or magistrate. Leave will normally be given
where the witness called by the judge has given evidence
that is adverse to the party seeking to cross-examine. See
Coulson v Disborough [1894] 2 Q.B. 316, CA)
3. a witness who is not examined in-chief because he has
been called by mistake.
 Cross-Examination
Witnesses Liable to be Cross-Examined
 Although all witnesses are liable to be cross-examined as a
general rule, the court has the discretion to disallow cross-
examination if, in its view, there is no relevant matter upon
which the witness can contribute (see R v Mahmood [2005]
EWCA Crim 3426).
 Where a witness refuses to attend court for cross-examination,
the court may, if the refusal impedes the course of justice—
 sanction the party who called the witness by withdrawing the
witness’s evidence/testimony from consideration; or
 prevent the party who called the witness from making any
argument/submissions on the testimony given by the witness
 (see Cross & Tapper at p. 316).
 Cross-Examination
When it is Necessary

 Where it is intended to urge the court to

disbelieve a witness, the witness should be
cross-examined.
 Moreover, failure to cross-examine a witness on
some material part of his evidence, or at all, may
be treated as an acceptance of the truth of that
part or the whole of his evidence.
 Cross-Examination
Hostility & Aggressiveness
A cross-examiner is allowed to be hostile and
aggressive with a witness during the cross-
examination.
In practice, however, cross-examination is
most effective when done in a friendly and
respectful yet subtly firm manner without
unnecessarily vexing or badgering the witness.
 Cross-Examination
Leading Questions

 As stated, leading questions are allowed during

cross-examination (see section 151 of the Evidence
Act).
 Indeed, leading questions are a very effective
strategy for conducting cross-examination.
 Such questions should be targeted at receiving an
answer that either shakes the veracity or accuracy
of the witness’s testimony or their credibility.
 Cross-Examination
Limitations on Right to Cross-Examine
 At common law, the right to cross-examine was so
critical that any judgment founded on a breach of
this right has generally been deemed a nullity.
 In England, there have been recent statutory
incursions on cross-examination by the accused in
person, especially where the accused person seeks
to personally cross-examine a child witness or a
complainant in a sexual offence (see Cross & Tapper
at p. 315). Still, there is no similar qualification
under Kenyan law.
 Cross-Examination
Limitations on Right to Cross-Examine
 In Kenya, it remains to be seen whether any attempt
to limit an accused’s right to cross-examine in person
would infringe on an accused person’s constitutional
right to “adduce and challenge evidence” (see Article
50 (2) (k) of the Constitution).
 Recent attempts by the High Court to limit the right
of cross-examination in election disputes, and in
particular to limit the right to the evidence set out in
the adversary’s witness statements, have been
condemned by the Court of Appeal (not clear what the
position of the Supreme Court is):
 Cross-Examination
Limitations on Right to Cross-Examine
“cross-examination is a critically important part…a court ought to be extremely
slow and circumspect before interfering or curtailing its use for to do so opens
the court to charges of unfairness or even bias…This is inevitable because in
denying, limiting or inhibiting a party’s cross –examination of an adverse
witness, a judge may be seen as literally grounding and mortally wounding the
cross-examining party’s ability to conduct his trial...the learned Judge fell into
and proceeded on the basis of the rather elementary error that cross
examination should be confined to matters that arose in examination-in-chief
which in this case is the evidence deposed to in the witness affidavits…so long as
a matter is relevant and admissible, a question can be led on it in cross
examination. Indeed…the potency and genius of cross examination lies in the
ability to bring up truths that the witness may have carefully tried to shield from
view by a sanitize form of deposition or examination-in-chief. This is the true
meaning and intent of section 146 (2) of the Evidence Act.”
¨ __Per Kiage JA in Ferdinand Ndung’u Waititu v Independent Electoral &
Boundaries Commission & 8 Others (Civil Appeal No. 324 of 2013).
 Cross-Examination
Limitations on Right to Cross-Examine

“the trial Judge erred in law in declining to permit the appellant to

cross-examine DW8…in relation to Forms 35 and 36. By refusing
cross-examination of the witness on these Forms, the trial Judge
erred in invoking procedural technicalities rather than substantive
justice. The right to challenge any evidence adduced against a
party is an essential component of the right to a fair hearing.”
__Per Visram, Odek & Jamila JJA in Dickson Mwenda Kithinji v
Gatirau Peter Munya & 2 Others (Nyeri Civil Appeal No. 38 of 2013)
 Cross-Examination
Finality of Answers to Collateral Questions
 As a general rule, the answers given by a witness to
questions put to him in cross-examination concerning
collateral facts are treated as final. Put differently, the
cross-examiner cannot, as a general rule, contradict the
witness’s answer by other evidence, nor suggest to the
witness that he can (see Cross & Tapper at p. 320).
 The rationale behind the rule is to avoid a multiplicity of
issues.
 The test for deciding whether a matter is collateral for
purposes of the rule was given by Pollock CB in Attorney
General v Hitchcock (1847) 1 Exch 91 at 99 in the
following terms:
 Cross-Examination
Finality of Answers to Collateral Questions

“the test whether a matter is collateral or not is this: if

the answer of a witness is a matter which you would be

allowed on your part to prove in evidence—if it has

such a connection with the issues, that you would be

allowed to give it in evidence—then it is a matter on

which you may contradict him.”

 Cross-Examination
Finality of Answers to Collateral Questions

There are three exceptions to the rule that

answers given in cross-examination to questions
on collateral issues are final, namely—
1. that the witness is biased in favour of the party
calling him;
2. that the witness has been convicted of a crime; and
3. that the witness has previously made a statement
inconsistent with his present testimony.
 Cross-Examination
Selected Illustrative Cases
 In Wong-Kam-Ming v R [1980] AC 247, the defendant was charged
with murder and malicious wounding.
 The only evidence connecting him with the attack was his own
signed statement (confession) given to the police to the effect
that he had been present at the scene and had there “chopped”
someone with a knife.
 At the start of the trial, the defendant challenged the admissibility
of the statement on the ground that it had not been made
voluntarily.
 The judge dealt with the issue of the admissibility of the
statement/confession in the absence of the jury by a voir dire.
 At the voir dire, the defendant testified that the police had offered
inducements to him to make the statement/confession and that he
had been forced to copy out and sign it.
 Cross-Examination
Selected Illustrative Cases
 Cross-examined by the Crown (at the voire dire), the defendant
admitted that he had been at the scene and involved in the attack.
 The judge ruled the statement (confession) inadmissible.
 The main trial continued, and to establish that the defendant had
been at the scene, counsel for the Crown called two shorthand
writers who had recorded the voir dire to testify that in that
proceeding, the defendant had admitted being present.
 The judge ruled that the shorthand writers' testimony was
admissible.
 The defendant gave evidence and was cross-examined about
discrepancies between his evidence and what he had said at the
voir dire.
 The defendant was therefore convicted of murder and malicious
wounding.
 Cross-Examination
Selected Illustrative Cases
Held (allowing the Defendant’s appeal):
on a voir dire as to the admissibility of a defendant's challenged
statement, the prosecution should not ask questions in cross-
examination of the defendant with the object of establishing the
truth of the statement and that accordingly , the Crown’s cross-
examination on the voir dire was improper; and
Where on a voir dire a, the defendant's statement is ruled
inadmissible, the prosecution is not entitled at the trial of the
substantive case to adduce evidence as to what the defendant said
during the voir dire or to cross-examine him on the basis of what he
said;
accordingly, the calling of the shorthand writers and the Crown's
cross-examination was substantial irregularities which resulted in
evidence being wrongly placed before the jury without which they
could not have been convicted and, therefore, the defendant's
convictions on all counts should be quashed.
 Cross-Examination
Selected Illustrative Cases

• In Coulson v Disborough [1894] 2 Q.B. 316, CA, the plaintiff was a

domestic servant and was engaged to be married to the defendant’s
son.
• The plaintiff was spending some hours one evening at the defendant's
house, and while she was there, the defendant charged her with
stealing some money.
• The plaintiff was then taken to a police station, whereupon searching,
the money was found on her person.
• In her defence, the plaintiff claimed that the defendant’s son had given
her the money the same evening in payment for a debt which he owed
her.
 Cross-Examination
Selected Illustrative Cases
 The plaintiff was tried for the alleged theft and was
acquitted. She then sued the defendant for malicious
prosecution.
 The defence (to the suit for malicious prosecution) was
that the defendant had reasonable and probable cause for
what he had done, and that he did not act maliciously.
 At the trial, after the witnesses on both sides had been
examined, and counsel on both sides had addressed the
jury, the jury expressed a wish that the defendant's son,
who was in Court, but who had not been called by either
party as a witness, should be called.
 The judge called the defendant’s son as a witness and
asked him whether he had given any money to the plaintiff
on the evening in question. The son answered both
questions in the negative.
 Cross-Examination
Selected Illustrative Cases
 The plaintiff's counsel asked the judge to allow him to
cross-examine the son, but the learned judge refused the
application.
 Held (on appeal).
 a judge has the power to call and examine a witness
whom neither of the parties has called, and when he
does so, neither party has a right to cross-examine the
witness without the leave of the judge;
 If the evidence of a witness given in answer to
questions put to him by the judge is adverse to either of
the parties, leave should be given to that party to cross-
examine the witness upon his answers. Still, a general
cross-examination ought not to be permitted.
 RE-Examination
General Scope & Purpose
 The purpose of re-examination is explain, where
appropriate, such apparent gaps in the witness’s
testimony as may have come out during the cross-
examination.
 Generally, re-examination must be limited to the
issues raised during the cross-examination; if one
introduces new matters during re-examination, the
adverse party may be allowed to conduct further
cross-examination on the new matters. Section 146
(3) of the Evidence Act provides as follows:
 RE-Examination
General Scope & Purpose

“The re-examination shall be directed to the

explanation of matters referred to in cross-

examination; and, if new matter is, by permission of

the court, introduced in re-examination, the adverse

party may further cross-examine upon that [new]

matter.”
 RE-Examination
Leading Qns & Previous Consistent Statements

 Generally, the rules governing examination-in-

chief apply to re-examination. In particular:
 leading questions must not be asked in re-
examination (see section 150 (1) of the Evidence Act).
 previous consistent statements cannot be put to a
witness in re-examination unless rendered admissible
by the cross-examination terms or for refreshing
memory.
Practice Exercise
Critically examine the approach to the examination of witnesses in the following
recordings:

 Kenya Digital News, ‘

CS Linturi gets Emotional During his Cross-examination by Lawyer Muthomi

Thiankolu!

’ (09 May 2024).

 Kenya Digital News, ‘

You Will Not Intimidate Me,' Cs Linturi's Lawyers Cross-Examine MP Wambok

a at the Impeachment Trial

• I was very privileged to facilitate this Guest
Lecture. Thank You Very Much for the Invitation