Reexamination

A number of techniques, for lawyers to seduce witnesses into saying what the lawyer wants said, have been identified. The clear implication has been that this is wrong. The reader may know and have been thinking that the lawyer for the other side may do the same or similar things in order to neutralise the effects. The lawyer, who called the witness in the first place, is entitled to re-examine the witness. In doing so he or she may counteract the effects of the other side's lawyer's questions. That is a critical safeguard of the adversarial system. The implicit assumptions are that the best ways of getting to the truth of a disputed issue, and of assessing the evidence in the process, is to allow each side to pursue its version of the truth through questions. This counterargument assumes equality of skill and opportunity, that it is equally easy to counter a case, as it is to propose one, and that the lawyers are equally skilled. But lawyers have different skills, can demand differential payments. However such arguments will not be considered in this chapter since it is concentrating upon points relating to question and answer form.

The lawyer who calls a witness is entitled to re-examine him or her after he or she has been cross-examined. While that lawyer is not entitled to lead the witness, as the cross-examiner is, he or she can utilise many of the techniques identified here. But it is unlikely to have the same effect. It is not a simple exercise of inviting the witness to undo the harm that he or she may have created in cross-examination. If the lawyer decides to tackle that topic then he or she is drawing the attention of the judge or jury to it, telling them that the exchange with the cross-examining lawyer was important and significant enough to deserve rebuttal. If the lawyer ignored the topic then the judge and jury might have forgotten it or, if they had remembered it, not regarded it as being significant and important. Addressing a topic presupposes its importance. And there can be no guarantee that the witness will 'cooperate' in being extracted from the problems he or she created during cross-examination. The witness may have, for example, used key words that are unhelpful to the lawyer's argument. The lawyer can invite the witness to change those words. But the witness may stick with the words used in cross-examination. Indeed he or she may insist upon digging an even bigger hole! So the lawyer may prefer to take a risk and not re-examine the witness.

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