Examining Witnesses Flashcards
What are the three phases of oral testimony?
- Examination-in-chief by the party calling the witness
- Cross-examination by the opposing party
- Re-examination by the party calling the witness.
What is the first rule for examining-in-chief?
Cannot ask leading questions
- cannot prompt witness by question which suggests answer or assumes certain facts
- But possible with certain formalities e.g. if you have your witness declared hostile, or if question deals with an introductory matter or matter not in dispute.
What is the second rule for examination-in-chief?
Witnesses may refresh their memories
- the witness can consult documents and then testify; Kelsey 1982, Da Silva 1990
-
S139 CJA 2003: W can refresh memory from document made or verified at earlier time if:
- W states in evidence that document records recollection of the matter and
- W states that recollection is likely to have been significantly better at the time notes made.
What is the third rule for examination-in-chief?
The rule against narrative: cannot ask your witness to narrate previous out-of-court statement which is consistent with testimony already given.
- rule against prior consistent statements - Corke 1958
- Roberts - charged with murder, testified it was an accident and wished to testify he had said this to father 2 days after killing - inadmissible
What is the first exception to the rule of narrative?
- Allegation of recent fabrication
- Oyesiku 1972: assault on PC. Wife testified PC was aggressor - alleged colluded with defendant to make up story - CoA allowed appeal because wife was not permitted to testify she had made statement to lawyer before visiting husband in jail.
- S120(2) CJA - if admitted, prior statement is evidence of truth of its contents.
What is the second exception to the rule of narrative?
Complaints from victims. S120:
- A previous statement by witness is admissible if-
- witness claims to be person against whom offence was committed.
- Offence is related to proceedings
- Statement consists of complaint about conduct, which if proved, constitute offence (or part of)
- Complaint made ASAP
- Complaint not made due to threat/promise
What are the third and fourth exceptions to the rule against narrative?
- Identification evidence
- Res Gestae
What are hostile witnesses?
- Witness may not testify as expected e.g. changes story in witness box.
- If declared hostile, judge will allow leading questions and prior inconsistent statements -Thompson 1976
- Also S3 Criminal Procedure Act - if W declared adverse, counsel can contradict by proving prior inconsistent statemnts.
What is Cross Examination?
- Broader scope of questioning - on any relevant matter
- Any issue in front of court.
- W’s credibility, prejudices, criminal record, prior inconsistent statement etc.
- Bad character of W only admissible under S100 CJA 2003
- Cannot be questioned on matters ruled inadmissible.
- Failure to cross-examine means evidence is accepted.
What are previous inconsistent statements?
- Normally come before the court when at trial a witness tells a different tale from one they told at an earlier stage.
- S119 CJA 2003
- Joyce and Joyce 2005
How are complainants protected during CE in Sexual Offence cases?
- D has right to conduct their own defence and CE witnesses themselves save for when it comes to CE of complainants in Sexual Offence cases
- Legal representative must be appointed to conduct CE
- There are restrictions on evidence being given or questions being asked about complainant’s sexual history.
What is Re-examination?
- After cross-examination, a witness may be re-examined by the party calling them
- Except with leave of the judge, the re-examination must be confined to matters which arose in the CE
- Same rules apply as to examination-in-chief
Who can benefit from special measures directions, as defined in S16-33 Youth Justice and Criminal Evidence Act 1999?
- S16(1)(a): children, other than the accused, under 18
- S16(1)(b) and (2): witnesses (other than accused) who suffer from physical/mental conditions, or who have a disability/impairment of intelligence and social functioning that is likely to diminish the quality of their evidence.
- S17(1): Witnesses other than the accused, whose evidence is likely to be affected by fear or distress at having to testify in proceedings
When is a special measures direction made?
S19(2): Where court determines the witness is eligible for assistance by virtue of S16 or 17, court must:
- determine whether any of special measures available in relation to witness would be likely to improve quality of evidence given by the witness; and
- If so, determine which of those measures would maximise the quality of such evidence and give a direction providing for the measure(s) so determined to apply to evidence given by the witness.
What special measures are available for witnesses?
- Section 23: Screening witness from accused
- S24: evidence by live link
- S25: evidence given in private
- S26: removal of wigs and gowns
- S27: video recorded examination-in-chief
- S28: video recorded CE or re-examination
- S29: removal of witness through intermediary
- S30: aids to communication to account for disability, disorder or impairment,
