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RE-EXAMINATION by Judith Robinson1

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RE-EXAMINATION by Judith Robinson1 RE-EXAMINATION by Judith Robinson1 In a civil trial, a witness may be re-examined by the lawyer who conducted the examination-in- chief. This is also referred to as a re-direct examination. As stated by Sopinka et al.: The purpose of re-examination is to enable the witness to explain and clarify relevant testimony which may have been weakened or obscured in cross-examination.2 This includes new matters that have arisen for the first time in cross-examination. Re-examination also permits for the possibility of rehabilitating a witness whose credibility has been damaged on cross-examination. The re-examination must be restricted to matters that were covered during the cross-examination. A party is not entitled to split its case by introducing new facts or opinion during re-examination that should have been raised in chief and which were not the subject of cross-examination. Accordingly, a line of questioning on proper re-examination will clearly set the foundation by beginning with a specific reference to the cross-examination, such as: “You will recall that Mr. Brown asked you this morning about the number of subjects in the Cornell study …”. This tells the witness where you are going and gives notice to the judge and opposing counsel that you are (supposedly) dealing with matters discussed during cross-examination. Re-examination should not be a reiteration of the in-chief testimony, although some lawyers will attempt this. Vigilance is required by the cross-examiner and the Court. In many respects, a re-examination is the trickiest part of the process of witness testimony. The re-examining lawyer is hampered by the inability to ask leading questions on controversial 1 Partner, Ogilvy Renault LLP; thanks to Christelle Gedeon and Sandro Muzzo for their assistance 2 J. Sopinka, S.N. Lederman & A.W. Bryant, The Law of. Evidence in Canada (Toronto: Butterworths, 1992) at 879 - 2 - matters for which there may have been little or no witness preparation. The responses may be unanticipated by the questioning lawyer. As such, re-examination should be approached with considerable caution. Reid and Holland point out: Many counsel seem to think that because they have the right to re- examine, they should do so, because not to exercise this right would be to show weakness on their part. Nothing could be further from the truth. If you have thoroughly prepared your case and have covered all the relevant ground in your examination-in-chief, there should be no need to re-examine (…).3 As to effective rehabilitation of a witness, this is most easily performed where the witness is merely given an opportunity to complete or clarify an answer from cross-examination. Considerably more uncertain is the situation where an inconsistency has arisen between the testimony in chief and the cross-examination. The re-examiner may point to a discrepancy and ask for an explanation. However, one would do so wisely only where the re-examiner has confidence that the answer will help and not reinforce a successful cross-examination. Indeed, the more successful the cross-examination, the more the witness will be in need of rehabilitation, and the less confident will be the re-examiner. It may well be best (or irresistible) to simply get the witness off the stand. Good strategy for appearances may call for a few easy pitches to the witness and a strong poker face by the re-examiner. As noted by Reid and Holland: Re-examination is a dangerous business. You are trying to rehabilitate a witness who has been knocked about in cross-examination. The witness is often feeling most unhappy about being a witness at all and just wants to get out of the witness box. There is a grave danger that re- examination will produce the same answers that he has just given in 3 R.F. Reid & R.E. Holland, Advocacy – Views from the Bench (Aurora: Canada Law Book, 1984) at 153 - 3 - cross-examination and will substantially reinforce his harmful testimony.4 If a cheap shot was taken by the cross-examiner, notably for dramatic flair, and there is a means to diffuse it on re-examination, the opportunity should be taken: The overall effect of this kind of redirect examination is devastating. The damage to the cross-examiner cannot be overemphasized. The witness appears to be fully vindicated because the cross-examination (now rebutted in re-direct examination) is shown to be the victim of an unscrupulous attack … The cheap shot exposes the cross-examiner as a person not to be trusted. (…)5 These views of Pozner and Dodd may be more applicable to a US civil jury trial than a Canadian trial before a judge, but the words ring true. Re-examination should be, by its very nature, brief. Everyone involved is usually anxious to move onto the next item. And so with this paper. – – – – – – – – – 4 Id. at 153 5 L.S. Pozner & R.J. Dodd, Cross-Examination: Science and Techniques, 2nd edition (Charlottesville: Lexis Nexis, 2004) at 14.18.
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