Being called as a witness

Report Writing

Court procedure is unfamiliar to most people, and the reasons for particular rules are often not apparent to witnesses. You are not expected to be conversant with the rules of evidence or procedure, and can rely on the court for guidance.

In most cases prospective witnesses must wait outside the courtroom while other witnesses are giving their evidence. When called, a witness is usually sworn, and the religious beliefs (if any) of the witness should be accommodated in the manner of swearing. A witness who objects to the taking of an oath, or who has no religious beliefs, may make an affirmation. In recognition of the gravity of the oath or affirmation, it is customary for the rest of the court to be silent and still during the swearing or affirming of the witness.

There are a variety of forums in which a case may be heard. Besides the various courts, a number of tribunals have jurisdiction to hear particular types of claims. Each court or tribunal has its own procedures and forms of address, the most common being ‘Your Honour’.

If in doubt, it is acceptable to address the judge or magistrate as “Sir” or “Madam”.

It is customary to make a slight bow or nod of the head to the judge or magistrate when entering or leaving the court.

If you are called to give evidence you should ensure that you bring your notes to court.

You will first be examined by the plaintiff’s barrister. During the examination you may need to refer to your notes, and the barrister may also ask to see them. No witness may refer to notes without the permission of the presiding judge, and the barrister will often ask for permission for the medical witness to refer to his or her notes. Permission is usually granted. If the barrister has neglected to seek permission for you to refer to your notes, it is appropriate for you to ask the court for permission to do so. You should then be guided by the direction of the court.

In some jurisdictions, if you have prepared a report for the lawyers you may be shown the report for identification and it may then be handed to the court to be recorded as a piece of evidence (an ‘exhibit’). You may be asked to read the report aloud for the benefit of the jury or for transcription purposes. On some occasions, the flow of your evidence may be interrupted by argument on the relevance or appropriateness of a particular question. Usually this argument will be dealt with by the judge whilst you remain in the witness box. If the argument is extensive the judge may ask you to step down from the witness box until the argument is complete and the judge has ruled on the issue.

When the examination is finished, the opposing party will be given the opportunity to cross-examine you. In some jurisdictions the opposing party’s barrister may seek to view your hand-written notes and cross-examine you about those notes. If you have relied on your notes to refresh your memory before giving evidence, the opposing barrister is entitled to again look at them. Following the cross examination, the plaintiff’s barrister is entitled to question you to clarify any matters raised in the cross-examination, a process called ‘re-examination’.