Four Reasons Why A Witness Should Not Evade Questions During Crossexamination

Introduction

To trial lawyers, a witness may generally be described as either ‘easy’ or ‘difficult’ depending on the witness’s performance during crossexamination. While an “easy witness” is a witness who responds to questions in the manner as wished by the cross-examining counsel, a difficult witness is a witness who makes crossexamination difficult by not answering in a manner that the counsel had wished. But there is yet another type of witness – the evasive witness! This is a witness who dodges the cross-examination questions. What differentiates a ‘difficult witness’ from an ‘evasive witness’ is that, whereas the former answers the question in a way, the latter actually dodges the question by refusing to respond to it or by saying something that does not relate to the question. Sometimes the witness deliberately veers off a cross-examination question and begins to repeat or rebuild what is already contained in his evidence in chief. Given the subtle irritation that may be visible on the part of the cross-examining counsel because his questions are being evaded, the evasive witness may later step down from the witness box thinking that he got the counsel where he wanted him.

Evasive Witness vs Counsel: Does the Court Intervene?

When faced with an evasive witness, some lawyers may insist that the witness should give a direct answer to the question while some other lawyers, perhaps more experienced, may just move on to their next question. But, in any case, is there any role for the court to play when a counsel finds himself embroiled in a confrontation with an evasive witness during cross-examination? As a rule of thumb, it is not the duty of the court to conduct cases for litigants and no court will descend into the dusty combative arena of litigation. This is to ensure that the judge's judicial eyes remain clear and unaffected – see the case of Otuedon v. Olugbor & Ors (2021) LPELR-55211(CA). However, it is apposite to note that a judge is in control of the proceedings in the court he presides. This means that he has a discretion to decide on a matter before him – see the case of Edu & Ors v. Prime Investment & Corporate Services Ltd (2021) LPELR-56129(CA). What is seen in practice is that, once the question is relevant or lawful, judges do intervene by either (a) compelling the evasive witness to answer the question or (b) asking the cross-examining counsel to move on to his next question. 

Contempt of Court

In circumstances where the court directs the witness to answer the question, but the witness continues to evade it, the conduct of the witness may be treated as a contempt of court under section 133 (2) of the Criminal Code Act which criminalizes the refusal by a witness, without lawful excuse, to answer questions in judicial proceedings. Some judges, however, may not hesitate to record the witness's evasive answer once they are satisfied that the witness understood the question. This is rightly so for two reasons: First, the trial court has a duty to record precisely questions asked in crossexamination and the exact responses given to them by the witness – see Akinbisehin V. Olajide (2018) LPELR-51172(CA). The rationale is to give the appellate court the exact gist of what transpired at the trial court, should the case go on appeal. Secondly, the time of the court is precious to it and no court will waste its time trying to beg or coerce a witness to give an answer to a question. 

Probative Value

However, although the court may record a witness's evasive answer, it will not attach any probative value to it. In the case of Candide-Johnson v. Edigin (1990) LPELR-20108(CA), the Court of Appeal held that “…a question which is relevant can freely be put to a witness and must be answered, although the weight to be attached to the answer is an entirely different matter.” In Anike v. S.P.D.C.N. Ltd (2011) 7 NWLR (Pt. 1246) 227 at 238, the Court of Appeal per Eko JCA (as he then was) held that “an evasive answer or traverse is not traverse. It amounts to admission.” In the case of Orianwo v. Okene (2002) 14 NWLR (Pt. 786) 156, the Supreme Court held that where a witness evades a question under cross-examination, the court could presume that the answer to the question if given, would be prejudicial to the case of the party on whose behalf the witness testified. See also section 224 (3) of the Evidence Act, 2011. From the above authorities, therefore, where a witness tries to be clever by half by evading questions during cross-examination, the witness’s evasive answer may be recorded by the court, but it may not by any means be attached any probative value except to be treated as an own goal - a presumption that a direct answer to the question would have been prejudicial to the case of the party on whose behalf the witness testified. 

Credibility and Competence

Furthermore, where the evasive answers from a witness are too many or repetitive, it may raise an alarm in the mind of the court as to the credibility as well as competence of the witness to testify. This is because a witness's ability to understand the question put to him or to give 'rational' answers thereto is a major requirement for his competence to testify under section 175 of the Evidence Act. With respect to credibility, a witness who cherry-picks which question to answer or evade is an unstable witness whose evidence cannot be trusted or relied upon. The testimony of such a witness impeaches and destroys his credibility as a witness of truth - Sowemimo v. State (2004) 11 NWLR (pt 885) 515 at 532.

Conclusion

A witness who evades questions (deliberately or otherwise) during cross examination does so to the detriment of his party's case. The effects can simply be summarized as follows:

1. The witness may be liable to punishment for contempt of court.

2. The witness may be deemed to have admitted the unfavourable facts which may be inferred from the evaded question.

3. The witness’s conduct may create doubts in the mind of the court as to his credibility or reliability as a witness of truth.

4. The witness’s conduct may create room for the opposing party to challenge his competence to testify as a witness.

Finally, bearing in mind that most witnesses are scarcely aware of the above effects, it behooves the counsel to properly prep his witness to avoid evading questions during cross examination or at best to be a truthful witness.