Questioning a witness is a serious business that must not be treated casually. In advocacy, questioning a witness is controlled storytelling. The art of examination lies in choosing the precise question technique to direct the flow of evidence, control hostile witnesses, and build a persuasive theory for the court.
1. Leading Questions
A leading question contains the answer within itself and suggests the expected response. It limits the witness to a simple agreement or disagreement.
When to Use: Cross-examination and impeachment. Under Section 62 of Ghana’s Evidence Act, 1975 (N.R.C.D. 323), leading questions are strictly prohibited during examination-in-chief, except for introductory matters.
Strategic Value: Maximum control. The advocate becomes the witness, and the witness merely confirms the facts.
Example: “You left the office at 10:00 PM, didn’t you?” or “You never saw the contract before signing it, correct?”
2. Open-Ended Questions
Open-ended questions allow the witness to describe events in their own words, usually beginning with who, what, where, when, why, or how.
When to Use: Examination-in-chief (direct examination).
Strategic Value: Builds witness credibility and paints a narrative picture for the judge or jury.
Example: “What happened after you walked into the bank?” or “How did the defendant react when you asked for payment?”
3. Closed Questions
A closed question demands a specific, narrow fact or a simple “yes” or “no” answer, without providing the answer inside the question as a leading question does.
When to Use: Pinning down specific facts during cross-examination or clarifying details in direct examination.
Strategic Value: Prevents witness rambling and locks down crucial factual parameters.
Example: “What colour was the traffic light?” or “Did you sign the agreement on January 15th?”
4. Transition Questions
Transition questions pivot the witness from one topic or timeline to another without confusing the court.
When to Use: Structure long examinations and transition between subjects smoothly.
Strategic Value: Maintains courtroom structure and signals to the judge that a new segment of evidence is beginning.
Example: “Now, Mr Mensah, I want to direct your attention to the events of the following morning, June 12th. Where were you at 8:00 AM?”
5. Point of Reference Questions
These questions anchor the witness to a specific document, exhibit, prior statement, or previously fact before asking the substantive question.
When to Use: Refreshing memory, introducing exhibits, or laying the foundation for impeachment with a prior inconsistent statement.
Strategic Value: Establishes context and prevents the witness from claiming confusion or lack of notice.
Example: “Referring to paragraph 4 of your witness statement on page 12… you stated that the vehicle was red, correct?”
6. Alternative Questions (Forced-Choice Questions)
Alternative questions force the witness to choose between two or more specific options provided by the examiner.
When to Use: Cross-examination when confronting an evasive or hostile witness.
Strategic Value: Closes off exit routes and forces the witness into a defined position.
Example: “Did you inspect the goods before signing the delivery note, or did you sign it without checking?”
7. Rhetorical Questions
A rhetorical question is asked to make a point rather than to elicit an actual answer.
When to Use: Closing arguments (addresses to the bench/jury) or occasionally during cross-examination to highlight an absurdity in the opposing party’s narrative.
Strategic Value: Emphasises logic gaps, challenges credibility, and leaves a lasting impression on the trier of fact.
Example: “If the defendant was truly at home as he claims, why did his cell phone ping the tower right next to the crime scene?”
Key Advocacy Takeaways
(a) Examination-in-Chief: Prioritize Open-Ended and Closed questions to let your witness tell a credible, coherent story while keeping facts precise.
(b) Cross-Examination: Use Leading, Alternative, and Point of Reference questions to maintain strict control and leave no escape routes for hostile witnesses.
(c) Structural Flow: Use Transition questions to keep the judge or jury oriented throughout complex multi-part examinations.
(d) Persuasive Impact: Reserve Rhetorical questions for closing arguments or critical impeachment moments to highlight contradictions.
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