Limitations of Redirect Examination

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There are limits to the redirect examination.  Generally one cannot repeat testimony from direct examination, and when faced with a witness who is impeached by inconsistent statements an attorney cannot simply ask his client to reaffirm his testimony given on direct examination.  In Clayton v. Bellatti,19 the Illinois Appellate Court held this to be reversible error and stated:

Where a witness has been shown to have made a statement contradictory to the testimony, it is proper on redirect to give the witness an opportunity to state the facts which will explain or reconcile the statements, or to show the meaning of the statement which appears to contradict her testimony.  On the contrary, it is not proper, on redirect examination, to rehabilitate the witness by simply having a reaffirmation of the testimony given on direct examination, or simply asking the witness to state that the testimony at the trial was true without explanation of the contradictory testimony.20

In Forslund v. Chicago Transit Authority,21 the defendant called the conductor of a street car to the stand where the issue in the case was whether the plaintiff was running or walking at the time he boarded the street car and the distance the street car had traveled before the plaintiff was injured.  The conductor was impeached by the plaintiff on cross examination from testimony at a prior trial.  On redirect examination the attorney for the defendant asked the witness:

“What is your present recollection as you sit there now, as to when you first saw this man attempting to board the car while it was in motion as to whether he was running or walking.”

The defendant insisted that the witness had a right to reaffirm his testimony on direct examination.  The First District stated:

There is no question that where a witness admits declarations or statements imputed to him the witness should have an opportunity to give such reason or explanation in exculpation of his conduct as he might have, and to show the circumstances under which the contradictory statement was made.  The proper way to rehabilitate a witness is to permit him to state any facts which will explain or reconcile the utterances or to show the meaning and the relationship of each.  It is not proper to ask a witness to repeat the statements he made on direct examination.22

It is clear that you cannot avoid the inconsistency in a witness’ testimony by simply asking him if he will reaffirm his direct examination.  You must deal with the inconsistency if there is one, which lawyers at know all too well.

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