T13- Rules relating to examinatin of witness Flashcards
1
Q
What is examination-in-chief?
A
Examination-in-chief is the first stage of questioning a witness, conducted by the party that called the witness.
2
Q
What rules must be observed during examination-in-chief?
A
It must comply with rules of evidence, including those on hearsay, character, etc.
3
Q
What is the general rule regarding the form of questioning in examination-in-chief?
A
Leading questions are generally not permitted.
4
Q
What is a leading question?
A
A leading question suggests the answer or assumes facts not yet established, e.g., “You went to Peter’s house, didn’t you?”
4
Q
Why are leading questions not allowed in examination-in-chief?
A
To ensure the witness gives their own account without being influenced or having words put in their mouth
4
Q
What are the exceptions to the rule against leading questions in examination-in-chief?
A
- Judge’s direction in the interests of justice – when strict adherence is impractical.
- Identification – when asking the witness to identify a person or object in court.
- Introductory matters – e.g., name, age, address (especially if not in dispute).
- Undisputed facts – leading questions can be used if the matter is agreed between parties (e.g., witness location at a given time).
- Hostile witness – if a witness becomes hostile, leading questions may be used (covered in more detail separately).
4
Q
What does s139(1) Criminal Justice Act 2003 state about refreshing memory?
A
A witness can refresh memory from a document during oral evidence if:
- They state that the document records their recollection at that time, and
- Their recollection was likely better at that time than when giving oral evidence.
SUMMARY
1. WITNESS CAN LOOK AT DOC IF THE DOC HELP REMEMBER WHAT HAPPEN AT THE TIME
- LOOKING AT THE DOC HELP IN GIVING ORAL EVIDENCE
4
Q
What should parties do before examining a witness regarding agreed issues?
A
Agree with the opposing party beforehand on what issues are disputed and what are not—never take agreement for granted, even if it seems obvious.
4
Q
Memory Refreshing
Why might witnesses need to refresh their memory before trial?
A
There is often a long gap between the written statement and the trial, so witnesses may not remember details clearly.
5
Q
Can witnesses view their statement before testifying?
A
Yes, they can read their statement or watch a recorded interview beforehand, but it must be done without discussing it with other witnesses.
6
Q
What qualifies as a “document” for memory refreshing purposes?
A
Any item with recorded information, prepared or verified by the witness.
Examples: Witness statements, police pocket notebooks.
Excludes: Sound recordings or moving images.
DOCUMENTS DONT INCLUDE SOUND RECORDING AND MOVING IMAGES
6
Q
Who decides whether the witness’s recollection was better at the earlier time?
A
The judge makes that assessment, not necessarily the witness.
6
Q
What does s139(2) CJA 2003 allow for sound recordings?
A
Memory can be refreshed using a transcript of a sound recording, if:
- The witness says the account was their recollection at the time.
- Their memory was likely better then than now.
- There is a transcript of the recording.
TRANSCRIPT OF THE RECORDING CAN BE USED
6
Q
Can the opposing party cross-examine about the memory-refreshing document?
A
Yes, they can cross-examine the witness about its contents (e.g. police pocket book).
6
Q
When can an application to refresh memory be made?
A
Any stage of giving evidence, but most often during evidence-in-chief.
6
Q
Who usually makes the application to refresh memory?
A
Usually the advocate, but the judge may also suggest it if justice demands.
6
Q
Does the judge have discretion over whether to allow memory refreshing?
A
Yes, even if statutory conditions are met, the judge may refuse if appropriate.
JUDGE CAN REFUSE IF APPROPRIATE - THE EVIDENCE IS GIVEN DURING EIC
6
Q
What is the rule about the other party inspecting the memory-refreshing document?
A
The opposing party can inspect any document used to refresh memory.
Example: Defence avoids using defence proofs in court to prevent prosecution access.
THAT WHY DEFENCE PROOF NOT USED, BECAUSE P CAN ALSO USE IT
6
Q
If the document becomes evidence, what is it admissible for?
A
It becomes evidence of the truth of its contents, as an exception to the hearsay rule.
6
Q
What happens if questioning goes beyond the memory-refreshing parts of the document?
A
The entire document may then become admissible evidence.
6
Q
For what purpose is evidence admitted under s120(4)?
A
It is admissible for the truth of its contents, so it is an exception to both:
- The rule against previous consistent statements, and
- The hearsay rule.
6
Q
What is the rationale for excluding previous consistent statements?
A
- To prevent witnesses from “manufacturing” evidence by repeating it to others.
- Because such evidence would be hearsay if offered to prove the truth of its contents.
6
Q
Previous Consistent Statements
Can a witness generally give evidence of previous consistent statements?
A
No. As a general rule, a witness cannot tell the court about consistent statements made prior to court, and no other witness can give evidence of it either.
7
Q
Does the rule still apply if a witness is contradicted or challenged in cross-examination?
A
Yes, even then, the rule against previous consistent statements applies.
However, there is a residual judicial discretion to allow re-examination to ensure the jury is not misled, where justice demands. (IMP)
7
How can a party deal with a poor witness?
They may allow the witness to refresh memory using their prior statement, if s139 CJA 2003 conditions are met.
7
Can leading questions be asked to a poor witness?
No, not on disputed matters.
7
Exception to the Rule ( AGAINST PREVIOUS CONSISTENT STATMENT)
Are self-serving statements made during accusation admissible?
Yes, but only to show the accused’s reaction, not as proof of the truth of their contents.
Example: An exculpatory statement made in a police interview.
7
Exception to the Rule
What is the rule for mixed or inculpatory statements made on accusation?
If the statement is inculpatory or mixed, it is admissible in full, including as evidence of the truth of its contents.
7
What does s120(2) CJA 2003 allow regarding fabrication allegations?
It allows evidence of previous statments to rebut a suggested fabricatin. This is usually relevant in re-examination as a result of questions asked in Cross alleging that the account has been fabricated at a later stage.
This is commonly dealt with in re-examination.
7
What does s120(4) CJA 2003 allow regarding previous complaints? ( this provision allows previous complaints provided by the witness indictes while giving evidence that the statment is true)
It allows evidence of previous complaints if the witness affirms its truth during oral evidence and the following s120(7) conditions are met:
1. The witness claims to be a victim of the offence;
2. The offence is relevant to the proceedings;
3. The statement is a complaint that forms part of the offence;
4.The complaint was not made as a result of a threat or promise;
5. The witness gives oral evidence about the subject of the statement.
7
General Exceptions for Witnessess
What is normally expected of a witness who is called to court?
That they will give evidence favorable to the party who called them and that their evidence will be in accordance with their written statement.
7
What might happen instead during testimony?
A witness may:
1. Simply be a poor witness (fails to recall or explain properly), or
2. Deliberately give a different account, helping the other party—in which case they may be considered hostile.
7
What is a 'poor witness'?
One who fails to give clear or full evidence but is not intentionally changing their account.
8
What defines a 'hostile witness'?
One who intentionally gives a different account in court than the one expected or previously provided—effectively assisting the opposing party.
9
What can a party do if a witness is hostile?
Apply to treat the witness as hostile, which allows:
1. Leading questions, and
2. Questions about prior inconsistent statements.
10
What statute governs the procedure for hostile witnesses?
Section 3 of the Criminal Procedure Act 1865, which allows a party to cross-examine its own witness if declared hostile by the judge.
11
What does this section reverse?
The general rule that a party cannot challenge the credibility of their own witness or ask them about inconsistent statements.
12
What was the position at common law regarding inconsistent statements of hostile witnesses?
They were only admissible to challenge credibility, unless the witness adopted the previous statement as true.
13
Could a court rely on the previous statement alone at common law? ( of a hostile witness)
No, the court could not reject oral evidence and convict solely on the basis of the earlier statement.
14
What change did s119 of the Criminal Justice Act 2003 make?
If a witness admits making a previous inconsistent statement, it is now admissible:
1. As evidence of the truth of its contents (not just credibility),
2. Making it an exception to the hearsay rule
15
Practical Impact- Especially in Domestic Violence Cases
Why is s119 CJA 2003 especially important in domestic violence cases?
Victims often:
1. Withdraw complaints, or
2. Give contradictory evidence in court.
With s119:
1. Their original statement can be used as truthful evidence,
2. The court can reject their oral testimony and convict based on the earlier statement.
16
When should an application to treat a witness as hostile be made?
At the point when the witness shows clear signs of hostility.
17
What should be considered before making a hostile witness application?
An application to refresh the witness’s memory using their prior statement should be considered first.
(RMBR)
18
What is cross-examination?
It is the stage of questioning after examination-in-chief where the opposing party asks the witness questions.
19
Who has the right to cross-examine?
1. The accused can cross-examine co-accused and their witnesses,
2. Even if the co-accused has not given any unfavourable evidence.
20
What is the order of cross-examination in the Crown Court?
1. Co-accused cross-examine witnesses in the order they appear on the indictment.
2. A defence witness may be cross-examined by the prosecution after cross-examination by any co-accused.
21
Are leading questions allowed in cross-examination?
Yes, leading questions can be asked during cross-examination.
22
What types of questions are allowed?
1. Questions about any relevant fact or issue,
2. Questions relating to the credibility of the witness.
23
What types of questions or statements are not allowed?
1. Questions must be limited to matters of fact,
2. Comments must be reserved for closing speeches,
3. Advocates should not:
a) Ask a witness to comment on what someone else has said or will say,
b) Make statements about what another person is expected to say,
c) Use phrases like “I suggest to you that...” or “Do you ask the jury to believe that...”.
24
What are the four main purposes of cross-examination?
1. To Elicit Supportive Evidence
2. To Challenge the Accuracy of the Testimony
3. To Impeach the Witness’s Credibility ( involve with attacking the character of the wintess or put inconsistent statement to them)
4. o Put the Case to the Witness
25
What happens if the case is not put to the witness?
The party may be seen as accepting the witness’s version, and cannot later challenge it in their closing speech.
26
What can the judge do in the case of vulnerable or young
The judge may restrict the advocate from putting the case if:
1. There is a risk the witness won’t understand,
2. They may become distressed, or
3. They may acquiesce (agree without truly understanding).
27
Cross- Examination by an accused in person
Does an accused have the right to cross-examine prosecution witnesses in person?
Yes, generally, an accused has the right to personally cross-examine any prosecution witness.
28
Is there a common law restriction on this right?
Yes. A judge is not obliged to allow an unrepresented defendant to ask any question he wishes for any length of time.
29
Statutory restrictions
What do Sections 34 and 35 YJCEA 1999 provide? (Youth)
They impose statutory restrictions on a defendant cross-examining protected witnesses in person.
30
What does Section 36 YJCEA 1999 allow?
A judge may prohibit a defendant from cross-examining a witness in person in cases not covered by ss34–35, if:
The quality of evidence is likely to be diminished by in-person cross-examination.
31
What does Section 38 YJCEA 1999 provide for?
It allows the court to appoint an advocate to conduct the cross-examination on behalf of the defendant.
32
What does Section 39 YJCEA 1999 require?
The judge MUST give a jury warning to prevent prejudice arising from the fact that cross-examination is conducted by a court-appointed advocate and not the accused.
33
The role of the judge
What discretion does a judge have during trial?
The judge has a general discretion to ask questions and must clarify ambiguities.
34
What are the limits to a judge’s role in questioning?
1. The judge must act fairly and impartially.
2. The judge must not descend into the arena or appear to be acting as an advocate.
35
Restriction of Cross-Examination
Can the judge restrict cross-examination?
Yes. A judge can restrict unnecessary, repetitive, or improper cross-examination.
36
Under what circumstances may the judge intervene?
1. When questioning is irrelevant,
2. When questioning becomes overlong or repetitious,
3. Not when questioning is relevant and properly structured.
37
Can time limits be imposed on cross-examination?
Yes, the judge may impose time limits where appropriate.
38
What ethical restrictions apply to counsel during cross-examination?
According to the Bar Code of Conduct, counsel must not ask questions:
1. Designed solely to insult,
2. Humiliate, or
3. Annoy a witness.
39
What rules must be followed during cross-examination?
1. Rules of evidence (e.g. on bad character, hearsay, confessions, etc.) must be observed.
2. The rule of finality of answers to collateral matters must be respected.
40
Previous Inconsistent Statments
What if a witness gives evidence inconsistent with previous statements?
They may be cross-examined on those previous statements under ss4–5 of the Criminal Procedure Act 1865 (CPA).
41
Who does this apply to? ( Where a witness gives evidence inconstent with previous statements) - They can be cross examined on their previous statments
1. Witnesses who are not hostile,
2. But whose oral evidence contradicts a prior statement.
42
Can the party who did not call the witness use these inconsistencies?
Yes. If the inconsistent statement helps their case, they may cross-examine the witness about it.
43
What are the two most common scenarios for previous inconsistent statements in cross-examination?
1. Defence counsel cross-examines a prosecution witness about inconsistencies between their oral evidence and their police statement.
2. Prosecuting counsel cross-examines the defendant about what they said in police interview.
44
Why is cross-examination of defence witnesses on prior statements rare for prosecutors?
Because prosecutors do not have access to defence proofs of evidence. Only the interview record is usually available.
45
Evidential Status of Previous Statements
What happens if a previous inconsistent statement is used or proved in evidence?
Under s119 Criminal Justice Act 2003, the statement becomes evidence:
1) Of the truth of its contents,
2) As well as of the credibility of the witness.
46
Finallity of Evidence on Collateral Matters
What does the rule of finality on collateral matters mean?
It’s a general rule stating that evidence relating solely to a witness’s credibility (i.e., collateral matters) is final once given in cross-examination — meaning it cannot be contradicted by further evidence.
47
What are “collateral matters”?
They are issues that go only to the credibility of the witness and not directly to the facts in issue in the trial.
COLLATERAL = CREDIBILITY
48
What is the practical effect of the rule?
1. A witness can be cross-examined about collateral matters.
2. But the cross-examining party must accept the witness’s answer.
3. They cannot call further evidence to contradict the answer.
49
Why does this rule exist?
To prevent trials from being sidetracked into irrelevant or tangential issues about credibility, which:
1. Would prolong proceedings, and
2. Confuse or distract the jury from the facts in issue.
50
Exceptions to the Rule
Are there any exceptions to the rule of finality on collateral matters?
Yes. In certain situations, the cross-examining party can both question and contradict the witness:
Example Exception: Bias
1. If facts are put to a witness tending to show bias, and the witness denies them,
2. The cross-examiner can call evidence to contradict what the witness said.
51
When does re-examination occur?
After cross-examination is complete, the party who called the witness has the right to re-examine them.
52
What kind of questions can be asked in re-examination?
Only non-leading questions are permitted during re-examination.
53
What is the purpose of re-examination?
To repair damage done during cross-examination — especially:
1. To clarify confusion,
2. Or restore credibility that may have been undermined.
54
Can new issues be introduced during re-examination?
Generally, no. Re-examination must be:
1. Confined to matters raised during cross-examination.
2. New matters can only be raised with the leave (permission) of the court.
55
Special Matters
What is the presumption about witness competence?
All witnesses, regardless of age or disability, are presumed competent to give evidence.
56
What must be shown if a witness’s competence is questioned?
It only needs to be demonstrated that the witness:
1. Can understand questions, and
2. Can give answers that are understandable.
🔹 Note: Competence is witness-specific, trial-specific, and issue-specific.
57
What does the Equality Act 2010 require in legal proceedings?
It requires equality for all court participants, ensuring they can fully participate, including children and vulnerable individuals.
58
What does Part II of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) establish?
A statutory framework for assisting vulnerable and intimidated witnesses through special measures directions.
59
What is the purpose of special measures?
To ensure that the quality of the witness’s evidence is not diminished due to:
1) Fear,
2) Distress, or
3) Disability.
60
Available Special Measures
What special meausures are availble under the YJCEA ( These include ( some are only available in CC) only
Measure | Statutory Basis
✅ Screening witness from the accused | s.23
✅ Evidence by live link | s.24
✅ Evidence given in private (court cleared of public) | s.25
✅ Removal of wigs and gowns | s.26
✅ Video-recorded evidence-in-chief | s.27
✅ Video-recorded cross-examination/re-examination | s.28
✅ Use of an intermediary | s.29
✅ Use of communication aids | s.30
✅ Witness/investigation anonymity orders | Under separate provisions
What the purposee: This MEASURE IS TO ENSURE THAT THE QUALITY OF THE EVIDENCE THAT THE WITNESS CAN GIVE IS NOT DIMINISHED THROUGH FEAR OR APREHENSION ABOUT COMING TO COURT
61
What amounts to vunerable witness (these are some of the witness whose evidence might be diminished if not given assistance)
1) Persons under 18
2) Persons with a mental disorder
3) Persons with a significant impairment of intelligence and social functioning
4) Persons with a physical disability
62
Who amounts to "Intimidated witness" (these are some of the witness whose evidence might be diminished if not given assistance)
Those likely to suffer fear/distress in connection with testifying
63
What are some categories of witness who have automatic eligibility (these are some of the witnesses whose evidence might be diminished if not given assistance)
1. Persons under 18
2. Complainants of sexual offences
3. Witnesses in slavery and human trafficking cases
4. Witnesses in domestic abuse cases
5. Witnesses in homicide, firearm, and knife cases
64
What is required for non-automatic eligibility?
The court must be satisfied that the quality of the witness's evidence would be diminished because of:
1. A disability (s.16), or
2. Fear/distress (s.17)
🔹 Except for child witnesses, the court must consider the views of the witness.
65
What is the test the judge applies in deciding whether to grant a special measures direction?
Stage 1 — Determine Eligibility:
1. Witness must fall into a statutory category.
2. Court must be satisfied that (except for children) the quality of evidence would be diminished.
3. The witness’s views (if not under 18) must be considered.
Stage 2 — Determine Appropriateness of Special Measures:
1. Would any of the available measures improve the quality of the evidence?
2. If yes → court must make the direction.
3. The witness’s views must again be taken into account.
66
Can parties argue against or for the use of special measures?
Yes — there is ample scope for legal argument over both eligibility and appropriateness of special measures.
67
Can defendants access special measures under the YJCEA?
Not under the main YJCEA provisions — defendants are excluded from these.
68
Can defendants still have an intermediary?
Yes — under the court’s inherent jurisdiction and governed by:
🔹 Criminal Procedure Rules (Crim PR) 18.27
When must an intermediary be appointed?
1) Where D is under 18 (age-related vulnerability), or
2) Over 18 and has a mental disorder or physical disability, and
3) The intermediary is necessary to ensure effective participation.
69
When can a defendant give evidence via live link?
Under s.51 CJA 2003 (as amended by the Police, Crime, Sentencing and Courts Act 2022)
70
What must the court consider before allowing live link?
The court must be satisfied it is in the interests of justice having considered:
1. The need to attend in person
2. The suitability of live link facilities
3. Whether it would allow effective participation
4. The importance of the evidence
5. Whether testing of the evidence would be inhibited
6. Arrangements for public access/viewing
