Workshop 2: Examination in Chief and Cross Examination PDF

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Summary

Week Two - Examination in Chief and Cross Examination• To consider the rules on the ability of a witness to testify and whether he can be forced to do so.
• To examine the rules that apply to a counsel when he is eliciting evidence from his own witness.
• To examine whether a witness can...

Description

WORKSHOP 2  

EXAMINATION-IN-CHIEF, COMPETENCE AND COMPELLABILITY, REFRESHING OF MEMORY CROSS-EXAMINATION & COLLATERAL MATTERS.

Aim of this workshop

To understand the evidential issues that arise when a party is presenting their case at trial; and how their opponent can challenge that evidence.

Skills Development

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Legal research activity Understanding case law Analysing legal problems Application and problem solving Critical thinking and judgement Oral communication Team working

Intended Learning Outcomes

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To consider the rules on the ability of a witness to testify and whether he can be forced to do so. To examine the rules that apply to a counsel when he is eliciting evidence from his own witness. To examine whether a witness can refresh his memory on statements made outside court and to determine what the evidential value of such evidence. the rules relating to cross-examination the rule of finality the exceptions to the rule of finality

Preparation in advance of the workshop: Reading  

Relevant chapter(s) of an evidence textbook Your own independent research, for example - https://www.cps.gov.uk/prosecutionguidance

Preparation Task A Please answer the below questions and come to the workshop with the answers: 1.

What is a leading question?

A leading question is whereby it prompts and encourages the wanted answer and therefore may put words into a person’s mouth. For example, reading out a statement and asking if it is true is leading question as the answer would simply be yes or no.

2.

What is the test for competence?

The test for competence is a person is not competent to give evidence in criminal proceedings if it appears the Court that: (1) they are unable to understand questions put to them as a witness; and (2) give answers to them which can be understood (section 53 (3) of the YJCEA 1999) 3.

Explain what happens during examination-in-chief. Who are the persons involved and what are their objectives.

An examination in chief is where you obtain evidence from your own witnesses and the purpose of this is to elicit facts favourable to the case of the party conducting the examination. Opportunity to tell their story in their own words

4.

Who decides that a witness is hostile and how would a witness be treated after assuming that status?

It is for the judge to rule that a witness is hostile. The counsel can then cross

examine the hostile witness to show his inconsistency with previous statement which he now does not want to attest to. They can read their statement and ask leading questions

5.

What is the difference between a ‘unfavourable witness’ and a ‘hostile witness’?

An unfavourable witness fails to come up to proof possibly because he is forgetful, foolish, careless or just not smart whereas a hostile witness displays a hostile intention to the party calling him. He is a witness who has no desire to tell the truth

6.

Explain how section 119 CJA 2003. S.119 CJA 2003 deals with previous inconsistent statements:

(1) If in criminal proceedings a person gives oral evidence and – (a) He admits making a previous inconsistent statement, or (b) A previous inconsistent statement made by him is proved by virtue of section 3,4 or 5 of the Criminal Procedure Act 1865 (c.18), the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible. (2) If in criminal proceedings evidence of an inconsistent statement by any person is given under section 124(2)(c), the statement is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible

7.

Explain how section 139 CJA 2003.

Section 139 CJA 2003 deals with whilst in the witness box:

(1) A person giving oral evidence in criminal proceedings about any matter may, at any stage in the course of doing so, refresh his memory of it from a document made or verified by him at an earlier time if – (a) He states in his oral evidence that the document records his recollection of the matter at that earlier time, and

(b) His recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence

8.

List the conditions that must be satisfied before a previous consistent statement under section 120 CJA 2003 would be admissible. Any previous statement made by a witness is admissible as proof of its contents if it is adduced in evidence to rebut an allegation of recent fabrication, or as a result of the witness being cross examined on a memory refreshing document or if the witness confirms that they made the statement and that it is truthful provided that: a) It relates to the identity of a person, place or thing (s120 (5)) or b) It was made while matter which they now do not remember were still fresh in their memory (s120 (6)) c) Or it is a recent complaint by a victim relating to the offence in the case and the victim has already given oral evidence of that offence (s120 (7)) 120(2) fabricated evidence

9.

Mandy tells the police that she has been raped by her husband, Ernie. However, shortly before trial, Mandy tells the police that she does not want to give evidence. The CPS wish to proceed with the case and ask for your advice as to whether she can be compelled to testify against Ernie. Advise the CPS.

CPS guidance – s80 (3)(a) PACE because it involves rape and as Mandy is the spouse, she can be compelled

Task B Please answer the below questions and come to the workshop with the answers:

1. What is the purpose of cross-examination? How is it different from examination-in-chief?

The purpose of a cross examination is to gain supporting evidence in relation to your sides case. It is to undermine the credibility of the witness and therefore the opponent’s case. A cross examination is whereby you indicate the point you wish to make and put it to the witness not tell the story whereas in examination in chief you want the witness to tell their side

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Undermine parts of the proposing witness’ statements (undermine their credibility)

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Or gain supporting evidence (something they have not covered) elaborate on other parts of their account

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Put your own case to the witness, anything you disagree with, ask them questions and highlight you disagree with that evidence.

2. What is the rule in Browne v Dunn? What will the court presume if you do not put your case properly? The rule in Browne v Dunn states that if the counsel intends to rely on a version of events contradictory to a witness’s testimony, then counsel must put that version of events to the witness on cross examination

3. In your own words, write out what a collateral matter is. Collateral matters are issues that are not directly relevant to the facts in issues of the case. However, they can be related to the credibility of a witness and establishing factual issues in relation to the witness

4. What is the rule of finality on collateral matters? Under the collateral finality rule, the answers of a witness given under cross examination on collateral issues are to be taken as final. If a witness’s answer is incorrect, the party cross examining the witness cannot attempt to establish the contrary – they are not allowed to use any further evidence to rebut what the witness has said

5. What is the rationale behind the finality rule?

6. Why was the finality rule not applied in the following two cases? Explain your understanding of these two cases.

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R v Funderburk [1990] 1 WLR 587 and

finality rule wasn’t applied because the trial judge did allow it but the Court of appeal said it should not apply as the previous inconsistent statement had to go to an issue in the case rather than a collateral issue – the witness gave graphic detailed description of how she lost her virginity so was a fact in issue rather than a collateral matter Court of appeal: it was viewed it goes to issue of credibility, whether she told witnesses it in the earlier stage, it went beyond a collateral matter but central fact in issue. Whether or not d has sexual intercourse with her or not.

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R v Nagrecha [1997] 2 Cr App R 401.

V made sexual assault allegations. This has been fabrication by V and introduce evidence that false allegations made previously. This goes to credibility. Beyond credibly and whether the assault happened or not. By introduction could lead jury to different conclusion – grey area between collateral matter and fact in issue.

Activities to be completed in the workshop:

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Answer the below questions. This question is particularly relevant to section 80 of the Police and Criminal Evidence Act 1984.

1. Mr. Hormones is appealing against a conviction for putting Stacey, a 15 year old neighbour, in fear of violence contrary to section 4 of the Protection from Harassment Act 1997. His wife, Mrs. Hormones, was called by the prosecution to testify against him. During her testimony, the justices informed her for the first time

that she was not obliged to give evidence against her husband but that since she had started, she must now finish. a. Were the Justices correct in asserting that Mrs. Hormones was not a compellable witness? She is a compellable witness s.80(3)(A) thus they were incorrect b. If the justices are correct and is not a compellable witness, should the police have warned her of this when they took her statement? Yes

c. Would any of your answers be different if Mr. Hormones had instead been prosecuted for publicly displaying indecent photographs of young children in his art gallery contrary to the Indecent Displays (Control) Act 1981?. No, it involves children s.80(3)(b) sexual offence relating to minors. d. Would any of your answers to (a) to (c) be different if, by the time of the trial, Mr. and Mrs. Hormones were: (i) Living apart. No, still married (ii)

Living apart, but Mrs. Hormones had since gone into a bigamous marriage with Mr. Smoothie.

(iii)

Divorced.

No still spouse.

S5) compellable normal witness e. Would any of your answers differ if ‘Mr.’ and ‘Mrs.’ Hormones were, in fact, a same-sex couple who had contracted a civil partnership under the civil partnership Act 2004?

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Angela is on trial for dangerous driving. It is alleged that she knocked Peter who was crossing the road. The prosecution’s case is that Angela was distracted by her mobile phone, which caused her to fail to see Peter when he was in the middle of the road. Angela disputes this, her case is that Peter seemed drunk and stepped out into the road without checking to see if it was safe. She believes that hitting and injuring Peter was unavoidable given his actions.

a. Dr Strange who treated Peter at hospital gives evidence for the prosecution, and when examined by Angela’s barrister states that he saw no signs of Peter being intoxication. Can he be cross-examined that the next day he told a nurse that Peter appeared drunk? Can rebuttal evidence be called if Dr Strange denies the conversation? Dr. Strange: Funderburk/Negarchy: normally when witness is intoxicated it is a collateral matter however, drinking related to central issue [finality rule] second question. Intoxication not collateral matter [cases] but fact in issue.

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Dr. Strange not telling the truth, his statement contradicted to the nurse. Not hostile because not Angela who called him as a witness Inconsistent previous statement s.119 CJA [how can 119 help, because this is an inconsistent statement] telling court different ststament, this is relavant, probative in proving fact in issue Party will cross-examine him about this, if he admits this it will be admissible 119(1)(1) previous inconsistent t statesmen admissible. S.4 CPA 1864: where a witness does not admit to making previous inconsistent statement – s.119(1)(b) can call the nurse to give rebuttal evidence. This is nto a collateral matter but a fact in issue. S.119(a)(a) accepts he made an inconsistent statement S.119(1)(b) does not accept he made an inconsistent statement.

b. Before the trial, Harold a barman at the Ship Inn gave a statement to Angela’s solicitor that Peter had drunk 6 pints of bitter, two hours before the incident. When giving evidence for the defence he tells the jury Peter had only drunk soft drinks. What use can be made of his written statement? 1. Refresh memory 2. Apply hostile witness 3. S.119 CJA 2003 allows inconsistent statement to be admissible as evidence.

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Paul is charged with sexual assault on Henry. He denies the offence and claims that they got chatting on a train as they were both reading the same book and that no offence occurred. Paul states that Henry has fabricated the offence.

a. Advise on the admissibility of Carol’s evidence. Carol is the receptionist at Henry’s office and saw that Henry was upset. When she asked him what was wrong, Henry told her that he had been sexual assaulted a week ago on the train.

b. Paul gave the same account to the police on being arrested and at trial during his examination in chief. The prosecution accuse him during cross-examination of making up his explanation. Advise the defence.

Carol’s evidence introduce consistency as to what Paul is saying. 120 (2) If it has been recent fabrication? 120 (4) & 7 henry going to be giving evidence, witness claims to offence been commit, statement he made to carol. Notion of self-serving statement: just something for his benefit normally prosecution not

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Consider the below questions:

1.

Robert is charged with the rape of Angela at a work’s party. Robert denies the charge and claims that Angela fabricated the story. In this exercise, you are to consider only the allegations made against the following prosecution and defence witnesses and advise the judge whether their evidence may be admissible and to what purpose the evidence may be used. (a)

Antoinette, a prosecution witness, testified that Robert forced Angela into the room where the rape allegedly took place. The defence have alleged Antoinette has a history of personality disorder and sometimes, suffers from mental problems. How should the court deal with this defence allegation? If the court allows the allegation to be put to Antoinette and she denies it, can the defence rebut Antoinette’s denial? Collateral matter (b)

Raymond testified that he heard Angela say ‘no’ when Robert was pushing her into an empty room. Robert wants to give evidence that Raymond is Angela’s best friend. Would the judge allow Robert to prove this assertion? What would happen if Raymond denied this allegation? Collateral matter (c)

Angela’s aunt, Sarah, would like to testify for the prosecution that two days after the alleged rape, Angela complained to her after she questioned her if Robert had raped her. Would the judge allow her to testify? 120(8) does not matter if elicited through leading question

(d)

PC Mila, who interviewed Robert after Angela’s complaint, is himself under investigation by the Police for perjury in relation to another prosecution in which the accused appealed and had his conviction quashed. The defence would like to ask PC Mila about this previous case. How should the judge direct the jury on this request?

(e)

Angela says she is frightened of Robert and seeks leave not to give evidence in the witness box. Robert objects. How should the judge rule on Angela's application? Is there any other way in which Angela can give her evidence?

s.34 YJCA: even if you do not want a lawyer, given turmoil under sexual offence, examined by perpetrator, court appoints someone to do the cross-examining. Special measures.

If Robert chooses to represent himself, can he cross-examine Angela?

1. 2. 3. 4.

Come up with your own short scenario write 4 examination in chief questions for your key witness consider what would make the witness unfavourable consider what would make the witness hostile

competence? Examination in chief. Ask broad open-ended question. If after refreshing memory if they are still hostile? Apply to the judge to make then hostile s.3 119 inconsistent statement, if he is making inconsistent statement or 119(1)(b) it has been proved under application 3 that they hostile we can admit the statement to be truthful in their statement. 119 copy of statement to jury (they can accept whether witness box true or statement true)

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s.120 (2) To rebut an allegation of recent fabrication; or

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s.120(3) As a result of the witness being cross-examined on a memory-refreshing document; or

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s.1(4) If the witness confirms that they made the statement and that it is truthful provided that

(6) confirming their memory better] (7) complaint by the victim 7(d): it says complaint victim made must be made straight away, this requirement has been removed.

s.80: parameters compellabilitycross-examination:...