This document discusses the examination of witnesses in court. It covers topics like: - Prosecutors will call enough witnesses to prove guilt beyond a reasonable doubt, but not every person with knowledge of the case. - Witnesses are notified to appear in court via a subpoena issued by a judge, prosecutor, or other officials. They may be commanded to bring evidence. - Before testifying, witnesses take an oath to tell the truth, though specific wording varies between affirmations and invocations of God. - Direct examination involves the side that called the witness questioning them first in a generally non-leading manner to get their story and facts of the case.

1. Semester:Fifth S
emester
Name of the Subject:
Indian Evidence Act 1
872
S
ubject Code:-LLB303
Unit:- 4
Examination of Witness

2. Witnesse
s
• It is not necessary for the prosecution to call every person with
knowledge about facts of the case.
– but enough witnesses to prove the defendant guilty beyond
a reasonable doubt
It is difficult to determine how many witnesses this will take,
but a prosecutor will call all witnesses necessary to establish
that a crime was committed.
– known as establishing the corpus delicti
The prosecutor will decide the sequence of how best to present
the facts in a logical, understandable manner.
•
•

3. • Persons are officially notified to appear in court as
witnesses by a legal document known as a subpoena.
– issued for attendance of prosecution & defense
witnesses
A subpoena may be issued by a judge, prosecuting
attorney, clerk of the court, or public defender.
Occasionally, a witness will be commanded to bring
books, documents, or other physical evidence to court.
– if so, a “subpoena duces tecum” will be issued to the
witness, including a description of material the witness
is to produce & statement of relevance of the requested
evidence
•
•

4. Excluding
Witnesses
• Prior to the time any witnesses testify, the judge must decide if
witnesses may remain in the courtroom or should be excluded
until after they have testified.
The primary purpose for excluding witnesses is to prevent them
from trying to corroborate the testimony of other witnesses.
– not always done with an intent to falsify, it may be done
because one witness may be uncertain of some of the facts
Although excluded, it is almost impossible to keep them from
conversing about their testimony.
– even though the judge admonishes them against such action
•
•

5. • Before being testifying, an oath must be administered in which
the witness promises to tell the truth.
In the past, these involved a call to deity to assist the oath
giver in substantiating truthfulness of statements.
– as well as a call for assistance in telling the truth
It was the general belief that, after such an oath, should one
falsely testify, divine punishment would result.
– and if one did not believe in God, one was considered
incompetent to testify
•
•
• Although most jurisdictions presently do not prescribe
wording generally a call to deity is still included.

6. THE OATH
• Oaths administered to witnesses today are substantially as
follows:
– “Do you hereby solemnly swear to tell the truth, and
nothing but the truth, in the matter now pending before this
court, so help you God?”
While this oath was once with a hand on a Bible, most
jurisdictions have dispensed with the Bible.
– but the witness is still required to raise his/her right hand
•

7. The Oath
• Some consider it objectionable to “swear to God”.
– in accommodation, courts permit affirmation to tell the truth
The court officer will require the witness to raise the right hand,
and will state words to this effect:
– “Do you hereby solemnly affirm to tell the truth and nothing
but the truth in the matter now pending before this court?”
Whether a witness swears or affirms to tell the truth, both
procedures are technically known as the “oath.”
A few legal scholars argue the oath is a waste of time.
– since it does not guarantee a witness will testify truthfully
•
•
•

8. Examination of
Witnesse
s
•
•
•
• As stated in the Federal Rules of Criminal Procedure, the
wording of the oath may be of any nature that will awaken the
witness to the necessity of telling the truth.
The witness may be prosecuted for perjury if testimony is
intentionally falsified after the oath is administered.
Exceptions to administration of oath are small children and
mentally retarded persons
– who may not understand the meaning of the oath
If a witness refuses to be sworn, a contempt of court charge
can be filed against the witness.

9. Examination of
Witnesse
s • After the oath, the witness will begin testimony.
 – facts will be related in the witness’s knowledge of the
case
 Prior to any statements about the case, the
witness will be required to state his/her
name and correct spelling.
 After the identification the prosecuting
attorney will start the examination.
 Questioning of the witness by the side that
calls him/her is known as direct
examination.
•
•
•

10. Direct Examination -
Narrativ
e
• The prosecuting attorney may request the witness to relate in
his/her own words the facts about the case.
– referred to as the narrative approach
This permits the witness to tell the story in a logical form so
the jury may be better follow the testimony.
Unless the witness is familiar with the rules of evidence,
irrelevant material & hearsay evidence
may be included.
– or facts related the prosecuting attorney wishes to avoid
•
•

11. •During direct examination, the attorney may generally not ask the
witness leading questions, one that indicates the desired answer to
the witness.
•For example, the attorney may ask the witness…
•“You did see the defendant threaten the victim with a knife,
didn’t you?”
•clearly, the attorney wants a yes answer
•By rephrasing, the witness may be asked…
•“Did you see the defendant threaten the victim with a knife?”
•while the attorney may still desire a yes answer, that wish has
not been indicated to the witness, and may answer yes or no

12. Leading questions are not generally permitted
because the witness is usually favorable to the
side that calls
him/her. Thus there may be a tendency to assist
that side irrespective of the truth if a desired
answer is indicated
Limited use of leading questions is permitted in
the examination of children, senior citizens, and
mentally retarded persons in order to assist them
in telling their stories.

13. Occasionally, a witness called by the prosecution will
display hostility toward the prosecution, making the
expected testimony difficult to obtain.the prosecuting
attorney may request the judge to declare for the record
that the witness is a hostile witness If the witness is
declared to be hostile, the prosecuting attorney may then
ask leading questions. it is assumed that the witness will
answer truthfully, because of the hostility, even though a
desired answer is indicated To be declared a hostile
witness, a person must display hostility and
uncooperativeness.

14. ▪During
defense
direct examination
may object to
by the prosecution, the
some of the questions
asked.indicated to the judge, who must rule upon the
objection the witness should not answer until the judge
has ruled.
▪If the judge believes the objection well founded, he/she
will sustain the objection, meaning the witness may not
answer the question.
▪If the judge does not agree with the objection, he/she
will overrule the objection & the witness must answer.

15. THANK YOU