3. Examination of Witnesses Flashcards
What are leading questions during examination in chief and what are the general exceptions?
Leading questions, which suggest the answer desired, are generally impermissible during examination in chief to prevent bias in the witness’s testimony. Exceptions include questions on formal and introductory matters, such as the witness’s name and occupation, and when the witness is treated as hostile with the judge’s permission, allowing leading questions to be asked.
What are the requirements for refreshing the memory of a witness during testimony?
A witness may refresh their memory during testimony if they affirm that the document reflects their recollection when it was made and that their recollection was likely better at that time than at the time of testimony. The judge has discretion to allow or refuse memory refreshing under specific circumstances.
When can a witness refresh their memory during testimony?
A witness can refresh their memory at any stage while giving oral evidence, provided the conditions for memory refreshing are met, which include the witness affirming that the document used accurately reflected their recollection at the time it was made.
What are the rules for refreshing memory prior to entering the witness box?
Witnesses are allowed to refresh their memory from documents before entering the witness box to ensure accuracy in their testimony. This process must be conducted individually to prevent witnesses from influencing each other’s recollections.
How can a witness refresh their memory after entering the witness box?
After entering the witness box, a witness may, under certain circumstances, be allowed to withdraw temporarily to consult documents to refresh their memory. This must be done under the supervision of the court to maintain the integrity of the testimony.
What are the rules concerning cross-examination on memory-refreshing documents?
If a witness has refreshed their memory from a document, opposing counsel is entitled to inspect this document and cross-examine the witness on its contents. If counsel cross-examines on material not referred to by the witness during their testimony, the party that called the witness is entitled to enter the document into evidence. This allows the tribunal of fact to see the document on which the cross-examination is based.
What are the requirements for the admissibility of a witness’s previous complaint?
A witness’s previous complaint is admissible if the witness testifies that they believe the statement made in the complaint is true, the complaint pertains to an offence related to the proceedings, and it concerns conduct constituting the offence or part of it.
What is the general rule against admitting previous consistent (self-serving) statements?
The general rule prohibits asking a witness about their previous statements that are consistent with their testimony at trial, nor can such statements be introduced by other witnesses. This rule prevents the bolstering of a witness’s credibility by simply repeating the same story.
What are the three types of self-serving statements made on accusation and what are they evidence of?
Self-serving statements made on accusation include denials, explanations without admissions, and statements containing both inculpatory and exculpatory elements. Denials and explanations are not admissible to prove the truth of the facts stated but may be used to show the accused’s response to accusations. Statements with both inculpatory and exculpatory elements are admissible in their entirety and considered for their truthfulness.
What is the general rule against impeaching the credit of one’s own witness?
The general rule is that a party cannot impeach the credit of their own witness. This means a party cannot discredit their witness by challenging the witness’s character, prior conduct, or contradictory statements through cross-examination, unless specific exceptions apply.
What are the exceptions to the general rule against impeaching the credit of one’s own witness?
Exceptions to the general rule against impeaching the credit of one’s own witness include situations where the witness’s bad character or other negative traits are relevant to a different part of the case, not just to discredit their testimony. Additionally, the prosecution can introduce parts of a witness’s testimony they believe to be true and challenge parts they find false without needing to declare the witness as hostile
What actions can a party take if a witness is deemed hostile?
If a witness is deemed hostile, the party calling the witness may, with the judge’s permission, prove previous inconsistent statements made by the witness and cross-examine the witness with leading questions. This allows the party to challenge the witness’s testimony more directly and attempt to elicit truthful responses.
When should a party make an application to treat a witness as hostile?
A party should make an application to treat a witness as hostile as soon as the witness first shows unmistakable signs of hostility, such as providing testimony that contradicts previous statements or is adverse to the party’s case. This application is made to the judge, who will decide based on the evidence of hostility presented.
What are statements in rebuttal of allegations of recent fabrication?
Statements made by a witness that rebut allegations of recent fabrication are admissible to support the credibility of the witness. These are prior consistent statements made before the motive to fabricate arose and can be introduced if the opposing party suggests that the witness’s testimony is a recent invention.
What are previous inconsistent statements and how are they treated in court?
Previous inconsistent statements are prior statements made by a witness that contradict their testimony at trial. If a witness acknowledges making a previous inconsistent statement, that statement is admissible as evidence and can be used to challenge the credibility of the witness’s current testimony. This allows the tribunal of fact to consider the inconsistency in assessing the witness’s reliability.
What is the general rule for cross-examination by an accused in person?
The general rule is that an accused has the right to cross-examine prosecution witnesses in person. However, there are statutory restrictions to protect certain categories of vulnerable witnesses, such as victims of sexual offences, from being cross-examined directly by the accused. In such cases, the court must appoint an advocate to conduct the cross-examination.
What are the three categories of witnesses that an accused in person cannot cross-examine?
An accused in person cannot cross-examine the following categories of witnesses: 1) the complainant in sexual offence cases, 2) protected witnesses in cases involving specified offences, and 3) any witness if the court determines that personal cross-examination by the accused would diminish the quality of the evidence or is contrary to the interests of justice.
What is the role of court-appointed advocates in cross-examination?
Court-appointed advocates are used when an accused is prohibited from cross-examining a witness directly. These advocates are responsible to the court, not to the accused, and their role is to ensure a fair cross-examination that respects the rights of the witness while adequately testing their evidence. This helps maintain the integrity of the judicial process and protect vulnerable witnesses from potential harassment by the accused.
What is the role of the judge during cross-examination?
During cross-examination, the judge’s role is to oversee the proceedings and ensure fairness. The judge may intervene to clarify questions, maintain decorum, and prevent improper questioning. Additionally, the judge has the discretion to impose limits on the length and scope of cross-examination to prevent undue harassment of the witness and to keep the trial focused on relevant issues.
What is the effect of a failure to cross-examine a witness on certain points?
If a party fails to cross-examine a witness on specific points that contradict the party’s case, it is generally taken as an acceptance of the witness’s testimony on those points. The party will not later be entitled to argue against the witness’s testimony regarding those unchallenged points. This principle underscores the importance of thorough and strategic cross-examination to ensure all relevant challenges are raised during trial.
What is the power of the judge to limit cross-examination?
The judge has the authority to impose time limits on cross-examination and to restrict the scope of cross-examination to ensure that the examination remains focused on relevant issues and does not unduly harass or intimidate the witness. This power is part of the judge’s broader responsibility to manage the trial effectively and ensure that justice is served by maintaining the integrity and efficiency of the proceedings.
How is bad character evidence treated in cross-examination?
Evidence of a witness’s bad character is generally inadmissible during cross-examination unless it falls within one of the specified exceptions set out in law.
What are the principal rules of re-examination?
The principal rule of re-examination is to allow clarification of matters that were raised during cross-examination. Questions during re-examination should be limited to issues that arose in cross-examination and should not introduce new matters. Leading questions are generally not allowed in re-examination unless specifically permitted by the court. This phase allows the party that called the witness to clarify any ambiguities or correct any misunderstandings that arose during cross-examination.
What are the general provisions for special measures for witnesses?
Special measures for witnesses are designed to assist vulnerable and intimidated witnesses, including children and those with disabilities, to give their best evidence in court. These measures can include the use of screens, live links, video-recorded evidence, and the presence of intermediaries. The measures are intended to protect witnesses from the distress of giving evidence in an intimidating environment, thereby improving the quality of their testimony and ensuring fairer trial proceedings.
