Examination Flashcards
What is the relevance of s.139 CJA 2003
Witness can refresh their memory from a document
What are the two conditions for memory refreshing?
The witness gives evidence that the document contains their recollections at the time it was made
and
the recollection at the time was significantly better than at the time of oral evidence
Can the accused refresh their memory?
Yes
What is the role of the judge during examination?
Can ask any questions they see fit under overriding objective
Usually will wait until the end of cross to ask anything
Will intervene more if the accused is unrepresented
Can reference be made during examination to previous consistent statements?
No - seen as self-serving.
Truth of what is said is determined by the oath, not by evidence of consistency
What is the rule on previous complaints?
A previous complaint to the police or other person can be admissible if:
The witness testifies that to the best of their knowledge, the statement is true and was made by them
The witness claims the offence complained of was committed against them
The offence is one to which the proceedings relate
The complaint regards conduct which would constitute the offence or part of it
What is the general rule about impeaching the credit of your own witness?
Not allowed
What is the difference between an unfavourable and hostile witness?
Unfavourable tells the truth but that truth isn’t useful in the way it was thought
Hostile witness is one who is not desirous of telling the truth
What should a party do to overcome an unfavourable witness?
Call a further witness to contradict the unfavourable parts
What happens if a witness is hostile?
An application should be made to the judge to treat them as hostile
Judge uses discretion to decide whether the witness is hostile (decided without jury)
If approved, counsel can XX the witness during chief
What is the role of the judge in XX?
General duty to prevent oppressive, unnecessary or improper questions.
What is the effect of a party failing to cross examine on an issue raised in XIC?
Tacitly accepts that evidence as truth
What is the general rule about XX if the accused is unrepresented?
Can XX any witnessW
What are the exceptions to the general rule about XX if the accused is unrepresented?
Cannot XX:
the victim of a sexual offence
a protected witness of a specified offence
If the court directs so
If the accused cannot XX, what will happen
Will be invited to appoint a rep.
If they do not and the court considers it in the interests of justice, they will appoint a rep
Is it possible to contradict answers in XX that concern simply collateral matter i.e. which go to credit?
Not usually
Can evidence be adduced to contradict a witness’s denial of bias or partiality toward one of the parties?
Yes
one cannot challenge a denial of being offered a bribe as this is irrelevant to the proceedings, but can challenge a denial of accepting a bribe, as this goes to the partiality at the heart of the case
When does re-examination happen?
After XX
What is the purpose of re-examination?
To deal with matters arising from XX.
Cannot ask leading questions
When can previous consistent statements be admissible?
When they are adduced to rebut the allegation that a recent statement was a fabrication.
In that case evidence of consistency goes to the heart of a matter
What are special measures?
Measures which allow for individuals to engage fairly when giving evidence
What are the available special measures?
Screens
Live link
Evidence in private
Removal of wigs and gowns
video recording of evidence in chief
video recording of XX and re-examination
Examination through an intermediary
aids of communication
Witness anonymity order
Who is eligible for special measures?
All witnesses under 18
vulnerable witnesses affected by mental or physical impairment
witnesses in fear or distress about testifying
Adult complainants of sexual offences, domestic abuse or modern slavery
Witnesses to a relevant offence (homicide and offences involving a firearm or knife) have an unqualified right to opt out
