Law Relating to Examination of Witnesses

WHAT IS COVERED
 What is Examination of a Witness?
Why examine a witness?
The order of production and examination of
witnesses – Section 144 EA (Cap 6).
The Court and Matters regarding to admissibility of
evidence – section 145 of the EA (Cap 6).
Types of examination – Section 146 of the EA (Cap
6).
Modality of Examination of Witness
 Witness Examination-
Examination of witnesses is an important principle and
a legal requirement that a witness must take a stand for
his or her words for the sake of protecting the integrity
of the evidence.
One re-known American lawyer Mr. David Paul Brown,
said upon this subject that:
" There is often more eloquence, more mind, more
knowledge or human nature displayed in the
examination of witnesses than in the discussion of the
cause to which their testimony relates. Evidence
without argument is worth much more than argument
without evidence. In their union they are irresistible."
 It is also believed that the examination of a witness in chief,
or the direct examination of witnesses, has been much
underrated in its significance and its importance. But If one
is to examine a witness, what need to be done is to induce
him to tell his story in the most dramatic fashion, without
exaggeration .
 You have to get him, not to make a mere parrot-like repetition
of the proof, but to tell his own story as though he were
telling it for the first time—not as though it were words learnt
by heart—but if it were a plaintive story, plaintively telling it.
And you have to assist the witness in the difficult work by
attracting him to the performance of his duty, but never
suggest to him what to say. You must avoid any suspicion of
leading the witness.
 Examination of Witnesses is a
process
This is a process, - a step-by step- method of
obtaining evidence from the witness during the
hearing of the case.
This process involving asking questions and leading
the witness to adduce articles or documents as
evidence before the court.
The techniques in the examination of witnesses
pivot on how to frame/phrase your questions and
how to lead the witness to properly adduce his
evidence.
But who is a witness?
 Who is a witness?
Legally speaking, a witness is a person who has
knowledge about a matter, whether they have
sensed it or are testifying on another witnesses'
behalf.
 He is a person who who, either voluntarily or
under compulsion, provides testimonial evidence,
either oral or written, of what they know or claim to
know.
Such a person may be a percipient witness
(or eyewitness) – i.e- a person who with knowledge
obtained through their own senses (e.g.,
visual perception, hearing, smell, touch).
 A hearsay witness is one who testifies about what someone else said or
wrote. In most court proceedings there are many limitations on when
hearsay evidence is admissible.
 An expert witness is one who allegedly has specialized knowledge
relevant to the matter of interest, which knowledge purportedly helps to
either make sense of other evidence, including other testimony,
documentary evidence or physical evidence (e.g., a fingerprint or
handwriting expert).
 A character witness - who is a person who testifies about the
personality of a defendant if it helps to solve the crime in question.
• A secret witness or anonymous witness- i.e., one whose identity is
kept secret by the court
• Refractory witness- i.e the witness who falls under the following cases,
namely: i). A witness who without sufficient excuse refuses to be
sworn or affirmed; or. ii). A witness who having been sworn or affirmed
refuses to answer any question put to him. See section 52 of EOCCA,
 Why Examination of Witnesses?
In essence, the rationale or purpose
of examination of a witness is to enable the
person calling the witness to extract from
his witness, subject to rules of evidence and
procedure everything that the witness
knows about the case so as he can build his
case.
 The Feel at Ease Approach
 It is no good to start anything with of importance
with a bang! It is safe to say at the beginning that
no two witnesses can be treated exactly alike.
 The examiner must be governed to a great extent
by the individuality and the peculiar idiosyncrasies
of each witness.
 When the witness is timid or diffident the
advocate should not at once proceed to the heart
of his case, but should ask a few unimportant
questions, such as, " What is your name ? " " What
is your age ? " " Where do you reside " " What is
your occupation ? " etc., until he becomes
composed and self-possessed, for at the beginning
he is apt to be frightened and ill at ease.
One cardinal rule that should never be violated
is, that under all circumstances the advocate
should keep cool, and not lose his temper.
No matter how stupid the witness, or how
unexpectedly damaging his testimony, or how
exasperating the conduct of opposing counsel,
or how erroneous he may think the rulings of
the Court on questions of evidence, the
advocate should show no more signs of
discomposure than if he were a graven image.
There are times when indignation should be
expressed, but as an advocate, you must keep
within bounds, and deport yourself with
dignity, never forgetting the respect due the
Court from yourself as one of its officers, and
never forgetting the respect due the office of
advocate which your opponents hold as well as
yourself.
If you find that a witness whom he has called is treacherous and
unfriendly, there are two courses which he may pursue.
One is not to appear to distrust him, and dismiss him as soon as
possible, and the second is to open fire upon him and make him
show his bias or prejudice.
Both methods have their advantages and their disadvantages,
and sometimes it is best to pursue one course and sometimes the
other.
 Perhaps the former course is best if the witness is defiant,
unscrupulous, and intelligent, the latter, if he is not naturally
inclined to be combative.
But it is better, if the advocate suspects that a witness may prove
treacherous, to have a signed proof from him, signed if possible
in the presence of reliable witnesses, with which to confront him
in case it should prove necessary, and the Court should permit it.
 What needs to be observed in advance?
A. Make sure you understand the facts of the case.
B. Prepare your witness before hand, e.g. talk to your witness before the
session.
C. Let your witness know what is expected of him/her and remind him/her
of important issues of the case, and make him feel comfortable; make
sure s/he understands the material facts of the case.
D. List or arrange your witness according to their importance. Remember
planning ahead is vital.
E. Start with the key witness. E.g, in the criminal case, the key witness is
a victim while in a civil case the key witness is the Plaintiff. Remember
it is not the quantity of the witness that matters but the quality.
F. Each witness must prove or corroborate something.
G. Make sure all the witnesses who give evidence are useful in terms of
proving or disapprove the existence of certain facts in your case.
 What to do in choosing the witnesses for your
case ?
Since the intent is to convince the Court to rule in one’s
favour, select the best witness if you have many. By the
best we mean the most honest, intelligent, and the men of
the best address. One has to put into consideration the
following attribute of a good witness:
1. A smart witness
2. Independent
3. A direct witness (a witness who was present at the
scene)
4. Unbiased
5. Knowledgeable of the facts of the case
6. Trustworthy
 Order of production and examination of
witnesses – Section 144 EA (Cap 6).
According to section 146 of Evidence Act,
Cap.6 R.E 2019, the order of production of
witnesses is to be governed by either Criminal
Procedure or the Civil Procedure.
Under the Civil Procedure see: Order XVIII
Rules 1, 5 and 8 of the Civil Procedure Code,
Cap 33 R.E. 2019
Under the CPA- Cap.20 R.E 2002, see
Sections 195 to Section 215.
It is a lawyer’s privilege to check the order in
which he examines the witnesses. According
to the experience and skill witnesses are
arranged.
Likewise a Prosecutor has the freedom to
produce his witnesses in order which he likes.
Section 144 of the Evidence Act, thus, gives
the power to the court to command or order
in which the witnesses may be produced.
 The role of the Court under section
145 of Evidence Act
Under section 145 of the EA (Cap 6), the court is
empowered to decide as to admissibility of evidence –
of a particular fact proposed by a party. The
circumstance will depend on the circumstance
obtaining in Court. The section provides;
145.-(1) When either party proposes to give evidence of
any fact, the court may ask the party proposing to give
the evidence in what manner the alleged fact, if
proved, would be relevant.
(2) The court shall admit the evidence of any fact if it
thinks that the fact, if proved, would be relevant and
not otherwise.
(3) If the fact proposed to be proved is one of which
evidence is admissible only upon proof of some
other fact, the last mentioned fact must be proved
before evidence is given of the fact first mentioned
unless the party undertakes to give proof of such
fact and the court is satisfied with that undertaking.
(4) If the relevancy of one alleged fact depends upon
another alleged fact being first proved, the court
may, in its discretion, either permit evidence of the
first fact to be given before the second fact is
proved or require evidence to be given of the
second fact before evidence is given on the first
fact.
 Types of examination –of Witnesses

Section 146 of the Evidence Act provides for

three types of examination of Witnesses,
namely:
(I) Examination In Chief, (EXD)
(II) Cross-Examination, (CRXD)and
(III) Re-Examination.(RXD).
It provides as follows:
146.-(1) The examination of a witness by the
party who calls him is called his examination-
in-chief.
(2) The examination of a witness by the
adverse party is called his cross-examination.
(3) The examination of a witness, subsequent
to the cross examination, by the party who
called him is called his re-examination.
Section 147 provides for the Order to be
followed . In particular, it provides that:
(i) Witnesses are to be examined-in-chief,
first
(ii) then (if the adverse party so desires) cross-
examined,
(ii) then (if the party calling them so desires)
re-examined.
 How to best should you conduct examination in chief?

There is no a hard and fast rule but there are at least things
you should avoid.
The following is how to conduct the examination in chief:
(a) Avoid asking LEADING QUESTIONS Leading questions
refer to the questions which suggest answers. E.g. Did you
saw her torn underpants? Instead ask: What did you see in
the room when you entered on that day?
During examination in chief, leading questions are forbidden to
assess the credibility of the witness. : (Section 150 Evidence
Act)
BUT…However, you may ask leading questions in the
introductory matter and undisputed facts. E.g. You said you
entered the room? Now tell us, what did you see?
(b)Instead of leading questions, ask questions that
brings out narratives or explanations and not a
YES or NO. E.g.
-The who question.
-The what question.
-The where Question.
-The when question.
-The how which question.
These are the kind of questions which allows the
witness to tell the story naturally.
E.g, Where were you on the 11th of June or What
did you see at the office on that day?
(c) Do not ask complex or compounded questions
by SIMPLE QUESTIONS. Simplicity make it
easy.
 You must remember that simple questions
attract simple answers which avoid
complications to the witness side.
Besides, many witnesses are afraid of court
room. The court room phobia needs to be
overcome least you confuse your witness.
 Simple questions will make the witness
comfortable and will let the witness remember
the answers.
(d) Do not interrupt your witness unnecessarily.
Allow him/her to narrate but within the confine of your
question lest he is taken away for a ride. In other words,
allow the witness tell what he knows without interruption
and give him/her enough time to think about answers and
arrange his sentences.
(e) Seek to Maintain the Flow of Events or the Chronology of
this for an easy and logical presentation.
 It is worthy noting that, the flow of the story is essential
when it’s come to evidence.
For that matter as you ask questions, guide the witness to
tell the story in the chronological flow of the events. When
asking you questions observe the flow of events. Guide the
witness to tell the material facts of the case logically.
(f) Be friendly to the witness
It is important to know that no one troubles the
fountain from which you draw your water.
So, allow the witness be your friend.
Ask questions in a friendly manner and when the
witnesses ask you to repeat do so in a helpful
way.
Ask a witness if he or she wishes to adduce any
document or article in his possession as
evidence.
As an advocate you should speak kindly and
reassuringly to a witness especially if he/she of
character of timidity.
If you neglects this precaution, you will be apt to
injure your case, for if the witness becomes
confused he will be liable to say something which
he did not intend to say, and thus damage the side
for which he was called to support.
It is important to note that, documents are
tendered formally in Court and not otherwise.
What you annexed in the Plaint is not evidence
or proof. Proof by documents is what the Curt
admits formally and endorses – See Order XIII
Rule 6 of the CPC, Cap.33 R.E 2019.
See the case of Bilauri Bughe @ Abdallah
Bughe vs. Amsi Shauri (DC Civil Appeal 20
of 2017) [2018] TZHC 2083
Kunduchi Beach Hotel &Resort v. Mint
Master Security Tanzania Limited, Civil
Appeal No. 67 of 2014 (unreported)
Consequently, you must lead the witness to tender
the document or any article in his possession to
court.
When the witness is ready to tender the document,
make sure you ask relevant questions regarding that
document.
For example, if it is a medical report, you may ask
the questions like, who prepared the report, what
does the report contain, etc.
Some documents requires laying down the
foundation of their admissibility by giving some
details of how they were procured or why copy and
not original? Remember the E-evidence issues.
 What about Cross-examination

See Sections 148,149, 152, 154, 155-157.

 Cross-examination is an examination of a
witness by the opposite party after
examination in chief.
E.g. when a witness has been called by the
Republic to testify in a criminal case, the
questions that witness will be asked by a State
Attorney or Public Prosecutor is an
examination in chief, but the question that will
be asked by the accused person or his advocate
is a cross-examination.
Cross-examination of witnesses called by the
opposing party is an absolute right in both civil
and criminal cases. It usually consists of two
kinds of questions –
 (1) those designed to bring out additional facts
and details about the events that were not
brought out during the direct examination, and
 (2) those intended to raise questions about the
credibility of the witness.
Admissibility of the first kind is governed by
ordinary rules of relevancy.
The second category is known as
“impeachment,” and has its own set of rules.

In Mathayo Mwalimu Masai Rengwa vs.
R., Criminal Appeal No. 147 of 2008
(unreported) the Court of Appeal stated as
follows:
“The object of cross-examination is to
contradict, impeach the accuracy, credibility
and general value of the evidence given in
chief; to sift the fact already stated by the
witness, to detect and expose discrepancies or
to elicit suppressed fact which will support the
case of the cross-examining party.
So, as it has been noted, the purpose of cross-
examination is to discredit the evidence
adduced during examination in chief. It is
geared at destroying the opponent’s case and
build yours. It seeks to show that the witness is
not reliable, he is a biased or outright liar. This
is what we refer to as “impeachment of a
witness”. See section 164 of Evidence Act
regarding Hostile Witness.
Impeaching the Character of witness

• The cross-examining attorney or advocate is bound

by the same rules of evidence as the attorney who
conducted the direct examination, with a couple of
differences.
• The cross-examiner has license to use repetition to
probe the testimony, and may use leading and
suggestive questions, and demand a responsive
non-evasive answer, but may not unnecessarily
harass or embarrass the witness.
• However, repetitions may be asked but not
frequently tolerated as it may be like vexing the
witness . Consider the following example below:
• Q: Was Joe drunk? A: I don't know.
• Q: You don't know if Joe was drunk? A: That's
right, I don't know.
• Q: Well, did he appear drunk? A: I don’t know.
• Q: You were with Joe in a bar, right? A: Yes.
• Q: Drinking? A: Yes
• Q: For several hours? A: Yes.
• Q: And Joe got drunk, didn’t he? A: I don't
know.
• Q: Was that because you were also drunk? A.
No.
• Q. Tell the truth. Weren't you both drunk?
• As a rule, any party may impeach the credibility of any
witness with evidence suggesting that the witness’s direct
testimony is unworthy of belief. A witness's testimony may be
unreliable for three quite different reasons:
a) Where a witness is deliberately lying and therefore
knowingly committing the crime of perjury -- it happens, but
people willing to commit crimes in front of judges are rare.
b) More likely, the witness is trying to tell the truth, but happens
to be mistaken because he or she saw the event incorrectly,
has forgotten parts, misinterpreted what the witness saw, etc.
c) The witness may be telling half-truths, exaggerating parts,
or omitting details out of embarrassment, love, anger,
political beliefs, or other emotions.
• Impeachment is the process of introducing
circumstantial evidence that suggests to the
jury a likelihood that the witness does not
understand the need to tell the truth, is
mistaken, is incomplete, or is lying.
• Impeachment evidence is subject to the basic
principles of relevance, and may be excluded
if its probative value on the issue of credibility
is substantially outweighed by its prejudicial
effect.
• The impeachment rules concern the use of otherwise inadmissible
evidence, such as hearsay and acts of bad character, for the limited
purpose of impeachment.
For example:
• Evidence that the defendant has a criminal record may be admissible
solely to impeach.
• A hearsay statement that a witness disliked the defendant may be
admitted to show the witness's bias.
• Evidence that the defendant is covered by liability insurance is
admissible to show the bias of a witness who works for that insurance
company.
• With certain restrictions, a witness may be impeached with evidence
of two kinds of criminal convictions : (1) felonies, regardless of their
nature; and (2) misdemeanors involving crimes of dishonesty and
false statement, such as check deception and perjury
• How to do cross-examination of witnesses
The following are the tips on how to conduct
cross-examination of witness
• Ask leading questions: section 152.
Unlike in examination in chief where leading
questions are forbidden, in cross-examination,
the leading question is allowed. Ask a leading
question to test the truthfulness of the facts.
Your questions should be tight and limited to
one fact per question
• Ask a series of questions with a purpose
Ask a small piece of a question with the major purpose.
In cross-examination don’t ask a question that you don’t
know its answer and don’t ask without purpose.
• Maintain eyes contact with the witness : Eye contact
can make you detect if the witness is lying.
• Observe the body language of the witness: Body
language can help you determine the strengths and
weaknesses of the witness. is the witness trembles?
• Don’t be harsh but never treat a witness as a friend :
In cross-examination witness is not your friend, your
goal is to prove him wrong on key facts stated in his
examination in chief.
• Focus on attacking the essential facts of the
case
Make sure you attack on essential facts of the case
includes documents or any article adduced as
evidence. It is not necessary to ask too many
questions to archive this. Sometimes one or two
questions might be enough.
• Start strong and finish strong
Technically that is referred to as the principles of
primacy and recentness. By starting strong and
finishing strong you will make your cross-
examination more memorable.
• Re-examination of witnesses
…
• Re-examination is the examination of the witness by the
person who called that witness for the purpose of
rebuilds what has been destroyed in cross-examination.
• Re-examination is not a must. You are advised to re-
examine unless it is necessary. Only when cross-
examination has destroyed your examination in chief.
• The object of re-examination is to allow reconciling
the discrepancies if any, between the statement in
examination in chief and cross-examination or to
explain any statement inadvertently made in cross-
examination, or remove any ambiguity in the deposition
or suspicion cast on the evidence by cross-examination.
• How to do re-examination of the witness
• Only ask questions that intend to rebuild your
case
• Avoid unnecessary repetition
• Ask simple, clear, and straightforward questions
• Avoid confusing the witness.
• NB. During the examination of the witness makes
sure you record everything for ease of reference.
 Questioning of Witnesses

• See Section 148 to 167 of Evidence Act lays

down the principles to adhere to when
questioning witnesses.
 HOSTILE WITNESSES- section 163-164
According to Bentham, "witnesses are the eyes and ears
of justice".
The role of a witness is paramount in the cardinal justice
system of any country.
By deposing in a case, they assist the court in discovering
the truth and do justice to the case.
But witnesses do at times turn hostile and is a common
thing happening in the criminal justice system. The whole
Case of the prosecution can fall only on a false statement
of the witness.
Where this happens with frequency the result is that more
and more citizens are losing faith in the effectiveness of
the system in Providing justice to the victims.
• As long as the witnesses continue to go hostile and do not
make truthful depositions in court, justice will always
suffer and People’s faith in efficacy and credibility of
judicial process will continue to be eroded and shattered.
• Witnesses are the key to the case. But when these
witnesses turn hostile or retract from their statement is that
the trial gets paralyzed and it will no longer constitute a
fair trial if the witness will continue testifying .
• Unwary witnesses can, thus, be tripped up (impeached) by
their own prior words, conduct, and reputation. This is
what we call impeachment of a witness who turns hostile.
The term “Hostile witness” has its genesis in
the common Law".
The word Hostile has to be interpreted in
comprehensive manner given that, its function
under common law was to provide safe guard
against the contrivance of an artful witness who
willfully by hostile evidence ruin the cause of
party falling such witness.
Common law laid down certain peculiarities of a
hostile witness such as not desirous of telling the
truth at instance of the party calling him or the
instance of a “hostile animus” to the party
calling such a witness.
 By Definition -
• Hostile witness is a witness who testifies for the
opposing party or a witness who offers adverse
testimony to the calling party during direct
examination.
• “' The term "hostile" witnesses mean "advance" or
unfavorable witnesses – and are alien to the Evidence Act .
• These all are terms of English law where a hostile witness
is described as one who is not desirous of telling the truth
at the instances of party calling him and unfavorable.
• As we stated earlier: A Witness is one called by the party
to prove a particular fact or issue of relevance to the issue,
who acts to prove such fact or proves the opposite test.
• As per section 163 Evidence Act,
The court may, in its discretion, permit the person
who calls a witness to put any questions to him
which might be put in cross examination by the
adverse party.
• Under that provision permission may properly be
granted to a party to cross examine a witness of his
over previous statements if the witness has given
evidence unfavorable to the party calling him.
• He will thus proceed to impeach his credit under
section 164 of Evidence Act by but him to cross-
examination. (Read the Section)
• His testimony will no longer be of value.
• Read section 163-167 of Evidence Act.
 Refreshing Memory
• Under section 168(1) a witness who under
examination may request to have his memory
refreshed by referring to his previous statement or
document he himself made at the time of transaction
concerning which he is testifying.
• As we discussed in the previous lectures, a witness
is not a robot to be fed and played out but as human
their memories may lapse overtime before being
made to testify in Court, hence, the need to refresh
memories.