Re-examination

When ‘no further questions’ is the best outcome

Re-examination, the final stage in giving evidence, offers an opportunity to clarify responses from cross-examination, but attempting to rectify all issues from cross-examination often proves ineffective and can worsen the situation.

An experienced barrister typically asks only a few targeted, non-leading questions in re-examination, emphasising the importance of strategic questioning and careful consideration to avoid potential pitfalls.

In this video, Fiona discusses:

• the purpose and strategy behind re-examination
• when not to enter into a re-examination
• best practice to address re-examination questions with your witness.

Video script

Hi, I’m Fiona Henderson. For the next four weeks, I will be in Germany working on a range of matters, including a catastrophic motor accident claim, family provision proceedings, and proceedings involving a breach of the trustee of the unit trust’s duties to the unit holders.

The final part of our series on giving evidence deals with re-examination.

Re-examination is the opportunity to clarify any matters that have not been clearly answered in cross-examination or where the witness did not have the opportunity to fully answer or explain a response adequately.

Many people see re-examination as the opportunity to try and fix up everything that went wrong in cross–examination. That approach rarely works, and often only makes things worse. If your barrister is attempting to do that in re-examination, then I’d suggest that that is more out of desperation than part of the plan going when the witness was first called to the witness box.

If a cross-examination has gone well, your barrister will most likely choose not to re-examine at all.

When re-examination is necessary, an experienced barrister will rarely ask more than a few carefully targeted questions. Unlike in cross-examination, these questions must be non-leading. This is the main reason why the answers given in re-examination don’t always improve the situation, and it can be better to just leave it alone.

As I said in the post on cross-examination, it is not permissible to speak to a witness during cross-examination. It is permissible, if the opportunity arises, to speak to your witness after their cross-examination has finished and before re-examination starts. Because the questions are non-leading questions, it can be worthwhile to clarify with a witness what they meant by giving a particular answer in cross-examination and to give them a heads-up about what you are going to ask them, but unless the end of the cross-examination coincides with an adjournment, that opportunity doesn’t always arise and that is when things can go wrong in re-examination.