Both the Crown Prosecutor and the Defence Counsel are allowed to ask questions of witnesses during the trial. They are presented in court by either the Crown or Defence in order to help prove their case/argument.
When a Lawyer asks questions of their witnesses they are doing this during the “Examination in Chief” or Direct Examination.
During Direct Examination a lawyer may only ask questions that require the witness to tell or explain what they know. A Lawyer may not ask “Leading questions” during the direct examination of a witness.
Leading questions suggest the answer in the question or ask for a yes or no answer.
Example: Lawyer: “Isn’t it true that you walked to the store?”
This is an example of leading because answer is already stated within the question.
Leading questions are not allowed during Direct Examination however they are permitted during the cross examination of a witness.
Cross Examination occurs immediately after the completion of the Direct Examination. After the Direct Examination is complete the opposing side is given an opportunity to ask their own questions, attacking the credibility of the testimony presented by the witness.
During the Cross Examination of a witness, the lawyer is allowed to ask leading questions.
As an opposing witness is not likely to provide the answers the Defence lawyer is looking for the Defence is allowed to phrase their questions in such a way that the witness provides a yes or no response. Thus the Defence is leading the witness legally.
If a leading question is too confusing or there are parts of the question that the witness does not agree with they may answer in the negative and explain their answer.
The Crown Prosecutor or the Defence Counsel may object to a question or the admission of an exhibit or evidence. The judge may ask the person “on what rule of evidence are you relying on?” or “on what grounds are you making your objection.”
Lawyers may respond to the judge or to an objection and attempt to justify their question/evidence. A lawyer must always stand when addressing the judge. Proper etiquette in a courtroom means that you always “rise” (stand up) when addressing the court.
A Lawyer would begin an objection by stating:
“I object your honour…” or
“The Crown objects your honour…” or
“Objection your Honour, the Crown/Defence is…”
After stating an objection a lawyer must provide grounds (meaning a reason) for the objection.
(a) asking leading questions on direct examination. Lawyers must allow their witnesses to tell their side of the story; they must not “lead” their witnesses through their story. This applies to Crown and Defence lawyers alike. Leading Questions are only allowed on cross examination.
(b) asking for testimony that is hearsay. The questions must limit witnesses to tell facts they know from personal knowledge. Other information is simply a recounting of someone else’s experiences.
(c) asking for testimony that is immaterial and irrelevant. The information is not closely related to the case, and is therefore not important.
(d) asking for an opinion or conclusion that the witness is not qualified to give. Unless the witness is qualified as an expert witness (or is identified as a character witness), (s)he should not give opinions or conclusions that they are not qualified to give or is beyond their knowledge. They can speak to their own perspectives of the event.
(e) badgering or harassing the witness. The Lawyer harasses, abuses, insults, or intimidates the witness, or is forcefully pursuing a point unnecessarily.
(f) repeating (Repetition) or wasting the court’s time: A question or answer is repeated multiple times or it takes too much time to think of questions/answers.
(g) coaching the witness. The Lawyer attempts to give hints or answers to a witness on the stand by nodding or shaking the head, mouthing words to the witness on the stand, or prompting in some other fashion.
* Requesting to treat the witness as a hostile witness*: If a witness’ answer is not addressing the question or the witness refuses to answer a question or they become belligerent or insulting towards their own lawyer on Direct Examination then they can be treated as a “hostile” witness.
The lawyer would thus be permitted to ask leading questions of the witness forcing them to respond in a yes or no answer. Treating your own witness as a hostile witness will have a negative effect on the Jury and on the Witness’s credibility.
This is only done when the lawyer on Direct Examination needs to draw the necessary information out of the witness and there is no other way.
The Judge’s Response to an Objection:
The judge may respond in one of two ways. S/he may sustain the objection, which means that the objection is well supported and approved of by the judge. This prevents the line of questioning from continuing or evidence/testimony form being introduced.
The judge may overrule the objection, which means that in the judge’s professional opinion; the objection is not credible or is not properly supported. An overruled objection allows the original questions to be asked and answered or the exhibit to be admitted into evidence.
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