Examination-in-Chief
Examination-in-chief — sometimes called direct examination — is the questioning of a witness by the party who called them. In a criminal trial, the Crown conducts examination-in-chief of its own witnesses; the defence conducts examination-in-chief of any defence witnesses, including the accused if they testify. Examination-in-chief is governed by rules that differ in important ways from those governing cross-examination.
Mass Tsang's criminal lawyers prepare witnesses thoroughly and approach examination-in-chief as a carefully structured exercise. For more on trial evidence, see our blog post on evidence in criminal trials.
The bar on leading questions
The most important rule is the bar on leading questions — questions that suggest the answer. Counsel calling a witness cannot ask, "You saw the accused strike the complainant, didn't you?" Instead, the question must be open-ended: "What did you see?" The reason is reliability: a witness called by counsel may be susceptible to suggestion, and the trier of fact wants the witness's own evidence.
Exceptions to the rule
Leading questions are permitted on: introductory and uncontested matters (name, occupation, date of an event); matters the other side has already led in evidence; matters within the witness's special knowledge; and where the witness has become hostile (with leave of the court). The trial judge has discretion to permit leading questions on non-contentious matters to keep the evidence moving.
Strategic considerations
Effective examination-in-chief requires preparation: counsel must know what the witness can say, how they say it, and how to structure the questioning to elicit a clear, logical account. Witness preparation is permitted — and crucial — but coaching the witness on what to say is improper. The witness must testify from their own memory.
Refreshing memory
If a witness has trouble remembering something, counsel can refresh the witness's memory by showing them a document — typically a prior statement or notes the witness made at the time. The witness then continues testifying from their refreshed memory, not by reading the document aloud. Different rules apply where the document is being tendered for its truth (past recollection recorded).
Examination of the accused
If the accused testifies, defence counsel conducts examination-in-chief. The same rules apply. The accused will then face cross-examination by the Crown. The decision whether the accused should testify is among the most important strategic calls in any trial and is made jointly between counsel and client.
Related glossary terms
