During the course of a disciplinary enquiry, once the preliminary issues have been dealt with, the accused has pleaded and the chairperson has heard the complainant’s opening statement, it will come time to lead evidence through witness testimony. The questions that a party puts to his or her own witnesses are asked in a certain way, known as examination-in-chief and re-examination and the questions put to the other side’s witnesses are asked in a certain way, known as cross examination. Each is dealt with below.
Since the complainant will present his or her case first in a disciplinary enquiry, I will use the complainant as an example below. However, the accused will follow the same process with his or her witnesses.
It is important to remember that witnesses appear one at a time in a disciplinary enquiry. They should not be in the room at the outset of the enquiry, but ought to be ready to be called at the appropriate time. It is also not advisable to have all of the witnesses waiting outside the room or in a separate room, as you will risk the witnesses talking to one another about the case and this may well lead to them influencing one another. Have the employees be working, but prepared and ready to come to the disciplinary enquiry when called to do so. The witnesses will be called in the following fashion:
Chairperson, I would now like to call my first witness, Mr White.
The chairperson of the disciplinary enquiry will then ask the witness to introduce him or herself and then hand over to the complainant (or accused) to continue.
The complainant then has his or her opportunity to proceed with the examination-in-chief of his or her first witness.
The purpose of examination-in-chief is to have the witness provide the disciplinary enquiry with the evidence of what happened. The way this is done is by asking the witness questions and having the chairperson and other participants hear the answers. This way, the witness is the one providing the evidence to the enquiry. For this reason, it is not appropriate to ask leading questions. A leading question is a question that presume a particular answer. Consider the following example:
Mr White, did you see Mr Smith assault Mr Brown in the changerooms on the morning of 12 January 2021?
As you can see, the pertinent points are being given or stated by the complainant, not the witness! This is not appropriate and will not be allowed by a competent chairperson. The better way to ask the question(s):
(Q): Mr White, where were you on the morning of 12 January 2021, at 07h25?
(A): I was in the changerooms, getting ready to start my shift.
(Q): And what happened in the changeroom that morning?
(A): I saw Mr Smith grab Mr Brown by the collar and throw him against the lockers.
You can see that by asking the questions in a different way, the witness is able to answer in his or her own words and provide the evidence needed to lead the chairperson towards a particular conclusion (that Mr Smith assaulted Mr Brown).
Always bear in mind the objective that you are trying to achieve when questioning a witness. Guard against asking leading questions, but don’t be scared to continue asking questions if the witness has left out certain important facts. Using the same example as above:
(Q): What happened in the changeroom that morning?
(A): Mr Smith and Mr Brown got into a fight.
(Q): Can you describe in more detail exactly what happened?
(A): Mr Smith and Mr Brown were having an argument when, suddenly, Mr Smith yelled, grabbed Mr Brown by the collar and slammed him into the lockers!
The amount of intervention needed should decrease in proportion to how prepared the witness is. A properly prepared witness should know exactly what he or she is going to say and in how much detail, not because they have been told what to say (this is “prepping” the witness and is not allowed), but because they’ve been told why they’re being asked to give evidence and for what purpose. Be sure to explain to the witness their role beforehand – it will put them at ease and make your job a lot easier.
Spend time thinking carefully about what questions you’re going to ask witnesses, why and in what order. Try not to confuse any witness by asking irrelevant questions or by jumping around too much. If a witness becomes confused, it may become very difficult to extract the information that you want.
Once examination-in-chief is complete, the other side will have the opportunity to cross examine the witness. The purpose of cross examination is to discredit the witness, show them to be lying or having made a mistake or having omitted certain crucial points. Remember your objective – to convince the chairperson of your version. Do not confuse the purpose of cross examination (to discredit a witness) with trying to belittle or embarrass him or her. This is simply bullying and will not be allowed by the chairperson. Consider the following example (Mr Smith, the accused, is now cross examining the witness):
(Q): Mr White, you stated that there was an argument between me and Mr Brown and that I yelled before I grabbed Mr Brown’s collar. Do you remember what I yelled?
(A): Yes. You yelled, “Don’t you dare slap me!”
The accused has now demonstrated to the chairperson that the witness has omitted a very pertinent point in his initial evidence. In contrast to examination-in-chief, cross examination questions are very often leading questions. In fact, very often, cross examination even consists of simply making a statement and then waiting for a response:
(Q): I put it to you, Mr White, that I yelled “Don’t you dare slap me”, because that is exactly what Mr Brown had done. I then grabbed his collar and pushed him away from me in order to prevent him from striking me again.
(A): Um, I suppose that is possible.
(Q): I put it to you further, that you have deliberately omitted this crucial point so that I look guilty of assaulting Mr Brown, whereas I was, in fact, simply acting is self-defence.
Think about the best way to get the information out of a witness. Think about the best way to discredit a witness without bullying, whether that is to pull the witness into your confidence by asking seemingly mundane questions and then suddenly asking a very pertinent direct question, or asking questions about a particular issue and then suddenly jumping to another question about another issue. Both of these techniques are designed to catch the witness off-guard, so that they give the answer without thinking too much. There are many more techniques which can be used during both examination-in-chief and cross examination. The best way to prepare for using these techniques is to always bear in mind what your purpose is – to convince the chairperson of your version.
The purpose of re-examination is to clarify issues that may have arisen during cross-examination. Re-examination is not always necessary, but the opportunity is there if there are any questions that you would like to ask to strengthen your case with a particular witness:
(Q): Mr White, you said that Mr Smith and Mr Brown were arguing before Mr Smith yelled and grabbed Mr Brown. Do you remember what was said?
(A): The men were arguing about money that exchanged between them. I couldn’t really hear the detail until Mr Brown shouted, “Leave me alone, or I’ll slap you!”
(Q): Did you see Mr Brown slap Mr Smith?
(Q): So it’s possible then that Mr Brown didn’t actually slap Mr Smith. He may have simply warned Mr Smith to leave him alone, and therefore Mr Smith wasn’t defending himself against an actual attack?
(A): Yes, I believe that it was happened.
Developing good questioning technique is a skill that can be developed through practice. If you are not able to practice your skills in actual disciplinary enquiries, it is useful to role-play and run hypothetical examples with others, if possible. However, as stated above, the best approach is always to prepare keeping in mind what your objective is. If you do that, you will be well on your way to presenting a winning case!