Say there was a criminal trial, and the verdict was later set aside on appeal due to some critical procedure errors happened during questioning of one specific witness (out of many). For example, a line of questioning on redirect examination was wrongly disallowed even though it directly related to an issue that arose on cross-examination.

So, the verdict was set aside on appeal and a retrial was ordered.

Now, on retrial, would all the witnesses need to be heard again despite that the issue that needs to be corrected pertains to just one of them? Can not the rest of the evidence presented in the original trial be just re-admitted?

I am specifically interested in an answer for bench/judge-alone trials — where the judge is the trier of fact too. (In case of jury trials the requirement to re-hear all witnesses is pretty much understandable).

(Any common law jurisdiction).

1 Answer 1


Yes - all evidence needs to undergo evaluation

If there is ground for a Retrial or New Trial on the lower court level, that starts everything in the trial from 0. The whole matter is looked at de novo, which means as if there had never been any trial before. 1

All evidence is put on the record (again), motions to suppress or exclude evidence are evaluated (again), and then the whole trial happens once again. New Evidence just as much as evidence from the old trial will both be scrutinized the same.

This means, witnesses will need to enter the stand once more, especially since the questions might be different from the first time.

1 - Note that Courts of Appeal might look at things de novo but not admit new evidence - they don't offer a retrial but evaluate the lower court was following the correct procedures in those cases.


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