examination in chief and cross examination

Question 1

what is examination in chief?

Answer 1

Examination in-chief involves the questioning of a witness by counsel representing the party that has called the witness. Through a series of questions, counsel seeks to obtain from the witness, testimony that will support the party’s version of events.

Question 2

what is the objective of cross-examination?

Answer 2

After examination-in chief, any other party to the proceedings has the option of cross-examining the witness. The object of cross-examination is to test the witness by challenging his or her account and under mining his or her credibility. A witness may be cross-examined as to any matter that is relevant to the proceedings, over and above any matters raised during examination-in-chief.

Question 3

what happens after cross-examination?

Answer 3

After cross-examination, the party that originally called the witness may conduct a re-examination of the witness

Question 4

what does the witness have to limit their testimony to?

Answer 4

When testifying, the witness must limit his or her testimony to a firsthand account,i.e. to matters which the witness has seen, heard or perceived. Furthermore, the witness must not draw inferences from the facts or offer opinions about matters material to the proceedings because these are the very functions entrusted to the finder of fact

Question 5

what are the two forms of leading questions?

Answer 5

(a) a question that suggests a desired answer; and (b) a question that assumes the existence of a fact that is in dispute between the parties.

Question 6

what is one way a counsel can lead a witness that it an exception?

Answer 6

counsel can lead the witness on introductory matters such as the witness identity and occupation usually to speed-up examination in chief

Question 7

what is a leading question?

Answer 7

a question that prompts or encourages the answer wanted

Question 8

How can refreshing memory take place?

Answer 8

Refreshing memory may take place in two ways.

First, a witness may use a pre-trial statement to refresh her memory while she is on the stand testifying at trial (refreshing memory in-court).

Second, she may refer to a pre-trial statement when preparing to come to court and testify (refreshing memory out-of-court).

Question 9

what are the exceptions to leading questions?

Answer 9

(1) Non-contentious issues, such as clarifying name
(2) Aiding recollection e.g reminding them of a vital detail they told police about
(3) Hostile witnesses
(4) General discretion, onus lies on the other party to object to a leading question

Question 10

Hostile witness Procedure

Answer 10

S.3 Criminal Procedure Act 1865
Where the witness proves adverse/hostile, the advocate may contradict him by other evidence or by leave of the
judge prove that he has made at other times a statement inconsistent with his present testimony; but before such
last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the
particular occasion, must be mentioned to the witness and he must be asked whether or not he has made the
statement.

Question 11

how does the case of R v Hayden describe a hositle witness?

Answer 11

A witness is hostile where he appears unwilling to tell the truth and the whole truth.

Question 12

what was established in the case of R v Hannigan?

Answer 12

Being unfavourable does not amount to liability

Question 13

what procedure was laid down in AG v Taylor for a hostile witness?

Answer 13

1. Put to the witness that she had on another occasion made a statement which differed materially from or contradicted the one that she was making in the witness box.
2. If she were to deny that, then put the witness down and call the person who took the statement to prove that she did make the statement, without disclosing the contents of the statement
3. Earlier witness is then called back to the box and the statement put to her for identification, and then her
   attention should be drawn to the passage in which the contradiction/material variation appears.
4. If she agrees that there was such a contradiction or material variation, that should be the end of matters.
   The jury have already seen that she has admitted this and thus impugned her credibility.
5. Statement might then have been put in evidence though that might not be necessary where an admission
   has been made.
6. If she had persisted in denying the contradiction, the statement having already been proved, would have
   gone in as evidence of the fact that the witness had made a contradictory statement.

Question 14

s16 Criminal Justice Act 2006 - when can a previous statement be used

Answer 14

Applies in any criminal trial for arrestable offences on indictment (not in district Court) – stops the intimidation
of witnesses.

Previous statement can be used as evidence.
S.16(1)
Statement may, with leave of the court, be admissible as evidence of the fact mentioned in it if the witness,
although available for cross examination:
a. Refuses to give evidence.
b. Denies making the statement.
c. Gives evidence which is materially inconsistent with it.

Question 15

s.16(2) Criminal Justice Act 2006 procedure is for statements given to Gardai:

Answer 15

1. Witness admits that he made it or is proven to have made it (Garda).
2. The evidence must be admissible at trial – this means that this procedure can’t be used to circumvent
   general rules of evidence (hearsay etc).
3. Must be voluntary
4. Must be reliable. S.16(3) states that in considering whether the statement is reliable, shall have regard to:
   i. Whether it was given on oath or affirmation, or video recorded
   ii. If it was not given on oath or affirmation or video recorded, whether by reason of the
   circumstances in which it was made, there is other sufficient evidence to support its reliability.
   Must also have regard to:
   i. Any explanation given for refusing to give evidence or for the material inconsistency
   ii. Any evidence in relation to his denial of making the statement.

Question 16

s.16(4) Criminal Justice Act 2006 - when can the court refuse to admit a statement

Answer 16

Court has discretion to refuse to admit the statement.

a. Having had regard to all the circumstances, including any risk that its admission would be unfair to accused(s), that in the interests of justice it ought not to be so admitted, or
b. That its admission is unnecessary, having regard to other evidence given in the proceedings.

Question 17

what is a collateral issue?

Answer 17

A collateral issue is one that has no bearing on a fact in issue of the case. It is usually a fact that goes to credibility of witness’ testimony.

Question 18

what was held in the case of R v Bourke regarding a collateral issue?

Answer 18

A witness’s answer about a collateral issue is final and may not be contradicted by evidence in rebuttal. It restricts an attempt to undermine a witness’ credibility during his cross examination.

Question 19

s.4 Criminal Procedure Act 1865

Answer 19

If a witness, upon cross examination as to a former (IE non-testimonial) statement made by him relative to the subject matter of the indictment or proceeding and inconsistent with his present testimony, does not distinctly admit that he made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

Question 20

S.5 Criminal Procedure Act 1865

Answer 20

Can also be questioned on a previous written statement relative to the subject matter of the indictment or
proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing,
his attention must be drawn to the parts to be used to contradict him.

Question 21

previous convictions

Answer 21

This is a collateral issue given it doesn’t need to be proved that he has a previous conviction.

Question 22

what are the facts of AG v Hitchcock? - bias

Answer 22

Witness denied taking a bribe to testify. Def. wanted to produce evidence to show that he was offered a bribe –
trial judge was correct in refusing as this would not show he was biased – just that there was an offer. It would have been different if he actually did take the bribe.

Question 23

what are the facts of AG v McGinley?

Answer 23

Prosecution’s main witness was the co – accused who was given a suspended sentence; the trail judge erred in
refusing to allow the defence to cross examine the witness in considerable detail as to his motives and as to what
was said at his trial which would go to establish what his motives were.

Question 24

what was established in the case of Toohey v Metropolitan Police Commissioner? - disability

Answer 24

Where a witness through… a disease or abnormality is not capable of giving a true or reliable account to the jury, it must surely be allowable for medical science to reveal the vital hidden facts to them.

Question 25

Sexual experience evidence

Answer 25

Traditional rule was that this was not seen as collateral – DPP v. McGuinness 1978. Promiscuity could be used
to bolster an honest belief.

Question 26

s.3(1) Criminal Law (Rape) Act 1981

Answer 26

General rule – no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by
or on behalf of the accused about any sexual experience (other than that to which the charge relates) of a
complainant with any person. If he wants to do so – must seek a voir dire.

Question 27

facts of R v Riley

Answer 27

The complainant asserted that she would never have had sex while her child was next door – evidence was allowed to show that she had done that before.

Question 28

what are the facts of DPP v K?

Answer 28

Kearns J. held that the trial judge erred here. The evidence tendered was that her hymen was ruptured during sex, which was discovered after an examination after she reported to the Gardaí. Judge erred in refusing cross examination of the complainant in regard to her sexual history with other boys from the age of 12. This was because it would undermine gynaecological evidence, which may have led the jury to believe there was only one suspect when it was told the complainant was no longer a virgin.

Kearns J. did confirm however that it may only be permitted where it was strictly necessary and should not be
used as character assassination. It is also stricter the younger the child is.