Examination in chief (Zimbabwe)

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Defence counsel may call witnesses to testify for the defence. He may also call X to testify in his defence.

The purpose of examination-in-chief is to elicit relevant and admissible evidence from the witnesses in a clear and orderly manner. Most witnesses are not familiar with the rules of evidence and it is therefore necessary for legal counsel to ask appropriate questions to ensure that only relevant and admissible evidence is given.

The defence lawyer should carefully plan the sequence of his questions. The aim must be to extract the evidence in a clear and systematic fashion. The questions should follow a logical sequence so that the evidence can be readily understood. If when asking questions the lawyer does not follow a logical order, the witness may become confused and the judge or magistrate will have difficulty in following and understanding the evidence of the witness. In one book the example is given of the irascible judge who said to counsel "Can't you put your case in some sort of order - historical, geographical, or if you can't manage that, why not try alphabetical."

The best way of obtaining evidence is to allow the witnesses to give their own description of the events. After they have finished relating the events, questions can be put to clarify points. However, questions can be put to help the witnesses to relate their own version of events but the witnesses must not be told what to say or questioned in such a way as to suggest the answers to the questions. The questions posed should be kept short and clearly and simply formulated so that they can be readily understood by the witnesses.

Leading questions may not be put to witnesses during examination. A leading question is one which suggests the answer, such as "Do you not agree that what the accused did was dangerous?" The judicial officer has the duty to ensure that leading questions are not asked and that the prosecutor, defence lawyer or X does not end up cross-examining his own witness. It is accepted practice, though, that a witness may be led on facts which are not in dispute such as the witness' name, address, occupation, whether he is married and so forth. The extraction of this routine information by leading is far quicker than by the use of non-leading questions. Prosecutors will not object to these sorts of leading questions, but the defence lawyer can clear the matter in advance by asking if the prosecutor would object if the witness is led in respect of this sort of information.

As regards questioning of X by the defence lawyer, James Morton in his book Handling Criminal Cases says that because clients can be unreliable, it is essential to keep examination to a minimum. As regards weaknesses in the defence case, it is a vain hope that both the prosecutor and the court will fail to spot these. Thus it may be strategically better to put the less attractive points in his case to the client when he is being examined in order to soften the blow when he comes to be cross-examined.

There are some questions which X cannot legally be compelled to answer. These include such things as disclosure of communications between married people, communications between lawyers and clients and so on. The circumstances in which a person may not be compelled to answer questions are set out in ss 290- 297 CPEA.

If the witness steadfastly refuses to answer a question which he is legally obliged to answer (or to produce a document or thing which he is legally obliged to produce), the judicial officer should be asked to order the witness to answer the question (or produce the document etc) and warn him that if he refuses, he will be sent to prison. If the witness still declines, the judicial officer may, in terms of s 233(1) CPEA, adjourn the proceedings and order the committal of the person to prison for up to eight days. If at the resumed hearing the person persists in his refusal he can again be imprisoned for up to eight days. This process can continue until the person agrees to do what he has been ordered to do by the magistrate.

On the undesirability and dangers of leading questions from the prosecution see Musindo 1997 (1) ZLR 395 (H).

See Zimbabwe Criminal Defense Manual