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Criminal Unit 3 - Evidence > Examination of Witnesses > Flashcards

Examination of Witnesses Flashcards

1
Q
A
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2
Q

Define examination in chief?

A

Examination of a witness by the party calling them in order to elicit witness evidence supportive of their case.

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3
Q

What is the general rule for examination in chief?

A

Cannot ask leading questions, although evidence attained by them will have reduced weight not become inadmissible.

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4
Q

Define leading question?

A

Questions that suggest the answer sought or assume the existence of facts not yet established.

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5
Q

What are 2 situations where leading questions are permissible?

A

When used in formal and introductory matters e.g. ascertaining personal details and when treating a witness as hostile.

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6
Q

When may a witness refresh their memory by looking at a document?

A

When they truthfully state that the document records their recollection at the time it was made, and is likely to be more accurate than their oral testimony.

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7
Q

Can witnesses refer back to recorded interviews?

A

No - witnesses may only refresh their memories from transcripts.

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7
Q

CJA 2003, s. 139?

A

Covers witnesses refreshing their memory with documents or transcripts of sound recordings.

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7
Q

When may a witness refresh their memory?

A

A witness may refresh their memory from a document at any stage (s. 139(1-2) - including re-examination.

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8
Q

Tyagi [1986]?

A

The judge should always remind/suggest to witness that they may refresh their memory from a document

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9
Q

CrimPD 5, para 18C.1?

A

Witnesses are entitled to refresh their memory from their statement or visually recorded interview before court (though should be recorded when they watched it)

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9
Q

Richardson [1971]?

A

Conditions required to allow refreshing memory not required when prior to entering witness box.

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9
Q

Define document for CJA s. 139?

A

Anything recording descriptions (not including sounds or images) prepared or verified by the witness

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10
Q

Shaw [2002]?

A

Judges should inform witnesses that they should not discuss cases they’re involved in. If they have, this should be discussed as it can create unsafe conviction.

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11
Q

Gordon [2002]?

A

Where a witness is dyslexic, counsel may read a document to refresh their memory to them in absence of jury.

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12
Q

Da Silva [1990]?

A

In some cases, a witness may withdraw from the witness box to refresh their memory from a document in peace.

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13
Q

When is a previous statement by a witness admissible as evidence of matter stated?

A

Where 3 conditions are met and the witness indicates that they made the statement truthfully.

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13
Q

Who is entitled to see the witness’s memory-refreshing document?

A

Counsel on both sides are permitted to examine the document, and can cross-examine the witness on the relevant contents.

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14
Q

What conditions must be met to allow previous statements?

A

(1) witness claims an offence was committed against them (2) that’s related to proceedings (3) and the statement involves a complaint of conduct that could constitute part of the offence.

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14
Q

Where can you find exceptions to the rule on hearsay?

A

CJA 2003 s. 120(1), (4), (7).

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15
Q

How flexible are the conditions for permitting hearsay / previous statements?

A

They don’t codify the law, but provide their own criteria as well as common law.

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15
Q

What is the rule against narrative?

A

General common law rule excluding previous consistent or self-serving statements in examination in chief, re-examination and cross.

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16
Q

What is meant by ‘an offence to which proceedings relate’ (s. 120(7)(b))?

A

Offence proceedings relate to means an offence that is on the indictment.

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17
Q

What is the purpose of the rule against narrative?

A

Means credibility of a witness cannot be bolstered by evidence of previous consistent statements merely because testimony’s impeached in cross.

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18
What are 3 exceptions to the rule excluding consistent self-serving previous statements?
Complaints; previous identification and description; statements in rebuttal of allegation of recent fabrication.
19
Pearce [1979]
Reaffirmed practice of admitting all statements, un/written made by accuswed to police whether containing admissions or denials.
20
What is the rule on admitting statements given to the police by the accused?
If wholly adverse to D, admitted under PACE s. 76 facts stated; if mixed it is admissible as facts stated; if purely self-serving/exculpatory it is not evidence of facts stated but relevance of Ds first reaction to confrontation.
21
How may parties generally treat their own witnesses?
They may not impeach the credit of their own witnesses by discussing bad character, previous convictions bias or inconsistent statements
22
What remedy is available to a party with an "unfavourable" witness?
There's nothing to do with a witness who's unfavourable but not hostile - can only call further witnesses to prove what UW failed to.
23
What is a hostile witness?
A witness not desirous of telling the truth at the instance of the party calling them.
24
What remedy is available to a party with a hostile witness?
With judicial permission, the party may prove a previous inconsistent statement of the witness; at common law, they may cross-examine with leading questions.
25
Thompson [1976]?
A hostile witness may be cross-examined by their calling party and asked leading questions.
26
Criminal Procedure Act 1865 s.3?
With judicial permission, a party may treat their witness as hostile and prove their previous inconsistent statements.
27
When should counsel apply to treat a witness hostile?
At the first moment of unmistakable signs of hostility.
28
What should be done if a witness contradicts another of the same party?
That party should immediately show statements to the judge and ask for leave to cross-examine as a hostile witness.
29
Before applying to treat a witness hostile, what should usually be done?
Normally, the potentially hostile witness should be invited to refresh their memory from appropriate documents.
30
Rice v Howard [1886]?
Discretion of the judge to allow treatment of a witness as hostile is absolute - just must consider any inconsistent statements.
31
Manning [1968]?
Appeals against judicial decisions to permit treatment of a witness as hostile often always fail.
32
When should the hostility of a witness be decided?
The judge should decide in the absence of the jury following a formal application, and consider the evidence and demeanour of the witness in front of jury.
33
What are the three rules of CPA 1865 s. 3 on treating witnesses?
1) parties cannot impeach their own witness's credibility with bad character evidence (2) a party may contradict hostile witnesses (3) hostile witnesses can be proven as inconsistent.
34
What is meant by contradicting a hostile witness?
Means calling other witnesses to prove that which the hostile witness has failed to established.
35
How are hostile witnesses proven inconsistent under s. 3 CPA 1865?
Witnesses can be proven to have made at other times statements inconsistent with present testimony, ONLY with judge's leave.
36
Muldoon [2002]?
Judge may allow cross-examination of inconsistent statements if a witness says they do not recall or state reluctance to testify but NOT if they refuse to speak at all.
37
Can spouses and civil partners be hostile witnesses?
When competent but not compellable for the prosecution, once they are on the stand yest they can be.
38
CJA 2003, s. 120(2)?
A witness statement admitted to rebut suggestions of fabricated evidence is admissible as evidence, unless OG evidence was always deemed fabricated.
39
When are inconsistent statements admissible?
Under CJA 2003, s. 119, when a witness admits making a previous inconsistent oral or written statement it is admissible as evidence of matter stated.
40
Is a different statement always an 'inconsistent statement'?
No - not remembering is not the same as inconsistent. Inconsistent is more denying the truth of earlier statements.
41
Define cross-examination?
The questioning of witness by (a) the opponent of the party calling the witness or (b) any other party to proceedings. So an accused can cross-examine their co-accused.
42
How does cross-examination proceed in magistrates court?
Every party may ask questions during cross-examination
43
How does cross-examination proceed in crown court?
P and D witnesses may be cross-examined by any co-accused in the order their names appear on the indictment.
44
Who can an accused examine?
An accused can cross examine in person any witness but for 3 exceptions called by the prosecution.
45
What kind of questions may an unrepresented accused ask?
They are still bound by what counsel are. Can't run amok and ask whatever questions at whatever length.
46
What are the 3 exceptions to witnesses an accused in person can question?
SA complainants; protected witnesses; and where the witnesses evidence would be diminished to allow it.
47
YJCEA 1999, s. 34?
Accused in person may not cross examine sexual crime complainants
48
YJCEA 1999, s. 35?
Accused in person may not cross examine 'protected witnesses' of specified against-child offences.
49
What is a protected witness under s.35 YJCEA?
A s. 35 protected witness is a child or a witness to a child-victim offence e.g. kidnapping.
50
What happens when an accused in person cannot cross-examine a witness?
Under YJCEA s. 38, the court must invite them to appoint a legal representative for that specific purpose only.
51
What are the 3 objectives of cross-examination?
(1) elicit evidence supporting your own version of facts (2) cast doubt on evidence in chief (3) where appropriate, impeach credibility.
52
What is the general role of the judge in cross-examination?
Judge should usually not intervene except to clarify matters, but may ask questions especially where accused isn't represented.
53
What was established in Mustafa [2020]?
The 3 principles of fairness for treating people who come to court.
54
What is the 1st principle of Mustafa fairness?
All those appearing before the courts are treated fairly and judges are fair and impartial
55
What is the 2nd principle of Mustafa fairness?
It's a judge's duty to clarify ambiguities in answers or to identify the defence
56
What is the 3rd principle of Mustafa fairness?
A judge should not descend into the arena and act like an advocate where this creates unfairness.
57
What is implied if a party fails to cross-examine a witness?
Essentially says they accept the truth of that witness's evidence in chief and will no longer be entitled to invite the jury to disbelieve them.
58
Cannan [1998]?
Evidence contradicting a witness not put to them in cross may be admitted by recalling a witness to reopen cross.
59
What are the general restrictions on types of questions used in cross-examination?
Questions shouldn't be a comment on the facts. Should be confined to putting questions of fact only. Try to get evidence not argument.
60
When can the judge prevent questions in cross-examination?
Whenever they are considered unnecessary, improper, or oppressive.
61
What is the scope of questions in cross-examination?
Questions may relate to any fact in issue or relevant fact, or regard witness credibility. Not limited to matters raised in chief. Leading questions are allowed.
62
What exclusions on evidence apply to cross-examination?
Rules related to hearsay, opinion, privilege etc., still apply as they do in examination in chief.
63
What power does the court have to limit time in cross-examination?
Within their normal case management. Though time limits shouldn't be routine. Duty to only cover relevant features.
64
Funderburk [1990]?
Witnesses can be cross-examined on knowledge of the facts and their character that's not directly relative to the indictment subject.
65
What is unique about cross-examination in sexual offence trials?
Where D asserts complainant made a false accusation they may be cross-examined as to what facts would explain. D can challenge delay in reporting though judge should direct jury of victim responses.
66
What governs cross-examination of bad character?
CJA 2003, Part 11. (s.99 abolished common law rules on bad character evidence).
67
What is bad character as defined CJA s. 98?
Evidence of or disposition towards misconduct other than to do with alleged facts of the offence.
68
YJCEA 1999, s. 41?
No questions may be asked about sexual behaviour of complainants in sex offence cross examination except with judicial leave.
69
What is the general rule on collateral matters?
Evidence which concerns collateral matters is not admissible to contradict cross-examination
70
What are collateral matters in evidence?
Matters which go merely to credit but otherwise irrelevant to issues in the case.
71
What is the test for determining whether a matter is collateral or not?
If the answer of a witness would be proven in evidence and have such a connection with issues, then you can contradict it.
72
What is the admissibility of evidence of bias?
Evidence to contradict denial of bias or show prejudice is admissible - much falls under CJA 2003 s. 100.
73
A-G v Hitchcock [1847]?
Evidence is not admissible to contradict a witness denying being offered a bribe, but IS of accepting a bribe.
74
Who may be re-examined?
All witnesses, including hostile ones, may be re-examined.
75
What questions are permitted in re-examination?
Only questions specifically on matters and new matters arising from cross-examination. No leading questions.
76
What are the common law special measure rules?
There's jurisdiction to make ad hoc modifications for non-eligible witnesses in the interests of justice.
77
What governs Ds access to live link for testimony?
CJA 2003, s. 51. No defence application is required.
78
YJCEA 1999, s. 19(2)
The test for special measures : measures must be tailored to the needs of individual witnesses and defendants
79
What special measures are available to under 18s?
Their recorded interviews may be played as evidence in chief and cross-examination via video link.
80
Where can you find measures protecting anonymity of witnesses?
CAJA 2009 Part 3 ch. 2 - for use in magistrates and crown court.
81
What are some examples of statutory special measures?
screening; live link; private evidence; removal of court dress; video recording of examination; intermediaries; communication aids
82
What are some protective procedures that aren't in court measures?
Restrictions on reporting and public access to trial; complainant anonymity in SA; pre trial depositions of children.
83
Summarise the eligibility for special measures?
All witnesses under age 18; those with mental or physical impairment; SA or slavery complainants; witnesses of homicide, gun and knife crime.
84
Can anyone use special measures?
For witnesses not automatically eligible, the court must determine whether the quality of their evidence would be diminished without the measures.
85
What special measures are not available to witnesses who are eligible by fear or intimidation?
Aids to communicate and testifying through intermediaries.
86
What governs defendant eligibility for live link?
PCSCA 2022 - Ds access is governed by general provisions applicable to all witnesses in trial.
87
What is the test for allowing a witness to use live link?
Consider all circumstances of the case and be satisfied that it is in the interests of justice to allow attendance via audio or video link, allow parties to make representations on the matter.
88
When can attendance by live link be challenged?
No party can apply to vary or rescind live link direction order unless there's been a material change of circumstances since it was given.
89
What circumstances might change that alter the permission to attend via live link?
availability; need to attend in person; the person's views; suitability of live link facilities; whether taking part would be effective.
90
When is D eligible to testify through an intermediary?
Where their ability to participate is diminished by age (U18) or mental or physical disorder.
91
When can a court vary or discharge an intermediary order for a defendant?
Only when defendant's communication needs or other material circumstances have changed significantly.
92
What is an intermediary?
A person approved by the court under YJCEA 1999 to facilitate effective participation in the trial.
93
How should intermediaries be treated in court?
They should not be sworn. Don't give expert opinion, opinion, or testimony.
94
How can intermediaries help disabled witnesses?
With profoundly disabled they can speak for the witness, when less so they can aid the court in averting questions that would cause misunderstanding e.g. in autism.

Criminal Unit 3 - Evidence (5 decks)

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