13 The rules relating to the examination of Witnesses PDF

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13. The rules relating to the examination of Witnesses examination in chief: form of questioning, memory refreshing, the use of previous consistent statements, hostile witnesses cross-examination: form of questioning, previous inconsistent statements, restrictions on cross- examination, including fi...

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13. The rules relating to the examination of Witnesses 1. examination in chief: form of questioning, memory refreshing, the use of previous consistent statements, hostile witnesses 2. cross-examination: form of questioning, previous inconsistent statements, restrictions on crossexamination, including finality on collateral matters 3. re-examination: form of questions 4. the special measures available to vulnerable witnesses and witnesses in fear of testifying Examination in Chief (EIC) Heading Summary

No leading questions

Description Examination of the witness by the party calling him. The objective is to elicit evidence supportive of the party’s case. Keep in mind the exclusionary rules of hearsay, opinion and character of the accused Leading questions are impermissible. Questions that suggest an answer or assuming facts yet to be established. Evidence obtained by such questions are not inadmissible, but the weight attached to it is substantially reduced.

Memory refreshing

EXCEPTIONS 1. Introductory questions (name, address, occupation) 2. Identifying a person or an object 3. On issues not in dispute 4. The party calling the witness is given leave to treat the witness as hostile Refreshing memory 1. Normally applied for by an advocate at any stage (EIC & Re). It is good practice for judges to suggest this for both PW and DW. 2. Witnesses may “refresh their memory” from a document if S. 139 Criminal Justice Act (a) States orally that the document represents his recollection at that earlier time; and (b) If the recollection of the matter is likely significantly better at that earlier time Ensure that it is to refresh memory rather than just reading. 3. Before going into the witness box, the witness is free to refresh their memory from documents or videos.  No looking at other witnesses’ statements to compare.  No discussion among witnesses.  No reading of evidence in the presence of other witnesses

 If any of the above occur, court should direct the jury. 4. After going into the witness box, where it is undesirable, the witness does not need to read at the witness box e.g. dyslexic witness. 5. Witness can refresh memory from a transcript of a sound recording. However, the trial judge has discretion not to allow this. 6. When refreshing memory on a document (in or out of court), opposing counsel may view the document and cross examine based on that document.  If crossed on a matter referred to, no need to tender the document as evidence  If crossed on a matter not referred to, then the person calling the witness are allowed to tender the document to show the jury what the opponent cross is based upon Reading out the witness statement

Unfavourable/ Hostile witnesses / Bad character

• A witness can ask to refresh their memory from a statement if they meet the test in s.139 CJA 2003: • give evidence the document records their recollection at the time they made the document; and (a) that their memory, in the view of the judge, was likely to have been significantly better at the time of making the document. • PC Hardy could refresh his memory when he gave evidence. General rule You cannot impeach your own witness. Unfavourable witness Not hostile but fails to come up to proof or gives unfavourable evidence. You cannot impeach. You can only call other witnesses to prove what the unfavourable witness failed to establish. Hostile witness Witness is no longer desirous of telling the truth (usually in domestic violence) and acting against the party calling them. The party calling the witness may  With leave, prove an inconsistent statement (even hearsay).  Cross examine by asking leading questions. Procedure for hostile witnesses If obviously hostile, seek leave as soon as possible. If witness is making a contradicting statement to a document, immediately show that document to the judge. If unsure, consider applying for him to refresh his memory. Power of the judge for hostile witnesses Judges discretion and decision is nearly absolute. Decision usually made in the

presence of a jury for them to see. The judge will consider many factors when coming to a decision. Bad character General rule: Inadmissible against your own witness.

Use of previous consistent (self-serving) statements

Exceptions: If he is hostile, but only by cross examining on previous inconsistent statement. General rule A witness cannot be asked about previous statements made by him and is consistent with his evidence. Side rules Previous statements cannot be used to bolster current evidence even if he is impeached and crossed on inconsistent statements. Self-serving earlier statements cannot be given by other witnesses as well Mixed statements Mixed statements (inculpatory and exculpatory) are wholly admissible for the truth of its contents. Three Exceptions s. 120 CJA 2003 If it falls under any exception, it is only to prove the fact the earlier statement is made is true (showing reaction), or to prove the consistency of the person making the statement Statute (s. 120 CJA 2003): Admissible where the complainant testifies that the earlier complaint made was made and true.  Res Gestae o statement made as an instantaneous reaction to the crime  Complaints o Common law: Doctrine of recent complaint o Can show consistency of complaining and the truth of the complaint. o First statement is considered a complaint  Description of a person, place or object Other Exceptions  Courts discretion in the interests of justice  *Rebuttal of recent fabrication (truth of its contents and to support credibility) o If the witness is challenged for recently fabricating a statement, the witness can defend by showing an earlier statement made that is similar. o Which earlier statement is determined by its usefulness, not the length of time.  Suspect’s response to police allegations

o Jury cannot use denial to prove the truth. But can be used to assess the overall conduct and consistency of the defence. Prosecution  The general principle is that the prosecution are obliged to adduce such statements.  The prosecution are bound to adduce mixed statements. Cross examination Heading Purpose

Who?

When?

Description 1. To elicit evidence supporting the cross-examining parties version of facts 2. To weaken or cast doubt on the accuracy of the witness in chief 3. To impeach the witness’ credibility 1. Opposing counsel 2. Any other party (including co-accused) 3. Judge  May ask the witness questions, especially if the accused is unrepresented, ask the witness questions necessary in the interests of the accused.  Questions are in the discretion of the court, subject to evidence rules and overriding objective.  Should generally not intervene and ask questions after cross. But may intervene if doesn’t understand or thinks the jury may not understand. Constant interruptions may, on appeal, be a material irregularity. Following an EIC. Sometimes, PW’s are tendered just for cross. Sworn for EIC, asked name and address then immediately begin cross.

How?

DW can be questioned by any co-accused in the order their names appear in the indictment or as directed by the court. Prosecution will question DW after. Unless a witnesses account is challenged, it is deemed to be accepted. This includes:  Factual challenges  Imputations on the witness’ character Browne v Dunn: You MUST fully and meticulously convey every minute disagreement. You must ‘put one’s case’ wherever there is a disagreement (exception is if court impose restriction for young/vulnerable witnesses). Witnesses only deal with facts. Opinions are only used for common place matters (e.g. drunk)

Form of question

Leading questions are allowed. Questions may relate to: 1. Any fact in issue 2. The credibility of the witness

 means of knowledge, his opportunities for observation, his powers of perception, the quality of his memory, mistakes, omissions and inconsistencies in his evidence, and omissions or inconsistencies in previous statements (relative to the case OR relative to his likely standing with the jury)  F7.21 blackstones [inconsistencies in previous statements that relate to his likely standing with the jury after cross-examination but which are not 'relative to the subject matter of the indictment'] (does not have to relate to fact in issue) The rules of hearsay, opinion and privilege apply (same in EIC).  The accused cannot be cross-examined in a way to reveal an inadmissible confession Bad character evidence is admissible under s. 100 and 101 CJA 2003. Use of previous inconsistent statements

Previous inconsistent statements are ADMISSIBLE

Police witness statement is regarded as hearsay. HOWEVER, if the witness contradicts or adds things which were not there originally, the police witness statement can become admissible to show the witnesses original statement. ARGUE that the original statement was made much closer to the crime, and it is also a signed and sworn statement. It is common for witnesses to give inconsistent statements. But minor discrepancies are usually not picked up. Major discrepancies can provide valuable insight to the witness’s credibility.

Restrictions in cross

BSB Handbook 1. An advocate must never upset a witness without a clear and useful purpose. 2. Must not make statements or ask questions merely to insult, humiliate or annoy a witness Judge can determine if a matter is sufficiently explored and can put time limits to peripheral issues. Advocates should not make comment to the facts. Comments are in speeches. Children/vulnerable persons are protected by the judge (discretion to prevent questions, pre-trial and trial process) Victims of sexual offences are guarded by law. No question about the victim’s promiscuity without leave of court (s. 41 Youth Justice and Criminal Evidence Act

1999)

Finality on collateral matters

Cross examination by an accused in person Restricted for 1. Sexual related offences 2. Protected witnesses 3. General discretion if: Quality of evidence likely to be diminished and not contrary to the interests of justice  If accused is prevented, court MUST invite him to appoint a legal representative. If accused fails to do so, the court will (only if in the interests of justice) appoint a legal representative for him JUST for cross.  If accused is prevented, court must warn the jury The rule on finality for collateral matters (matters which go to credit, but irrelevant to the fact in issue) If in a robbery, the witness is asked if he has lied in a bank loan and he says “no”. That is final and no further evidence can be adduced.

Bias and partiality

If the collateral issue is regarding bias or partiality then courts are more willing to allow such evidence to be tendered. General rule Evidence showing bias and partiality is always admissible. s. 100(1)(b): evidence of the bad character of a person other than the accused that has substantial probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole Examples: Rejecting a bribe which shows impartiality Evidence to show the state of his mind and feelings if he denies a negative bias.

Re-examination Heading When to use?

Description If there are issues raised in cross which could not have been reasonably covered in the EIC.

Rules

Same as EIC. No leading questions unless it is not in dispute Witness can refresh memory

Special measures Heading Use of special

Description Test maximise the quality of the evidence

measures For: Automatically eligible (a)...