Topic 11- Examination of Witnesses Flashcards
What is examination-in-chief?
This is the examination of a witness by the party calling him
The object is to elicit evidence supportive of the party’s case
What is the general rule in examination-in-chief questioning?
You cannot ask leading questions
What is a leading question?
A question framed in such a way to suggest the answer sought
Can leading questions be allowed in examination-in-chief?
They may be allowed in the interests of justice, at the discretion of the judge
What circumstances can leading questions be asked in examination-in-chief?
May be asked on formal and introductory matters
If the witness is to be treated as hostile
What circumstances can a document be used to refresh the witness’ memory in EiC?
If the document records his memory at the time it was made
That his recollection at that time is likely to have been better than at the time of oral evidence
What is the definition of a document?
Anything in which information of any description is recorded
Does not include sounds, or moving images
What is the requirement for a document to be used as a refresher for a witness?
It must have been prepared by the witness himself
If a witness refreshes his memory from a statement before going into the witness box, do the refreshing conditions apply?
No
If a witness has refreshed their memory from a document, can the other side inspect the document?
Yes, and they can then cross-examine the witness upon the relevant matters
Are previous complaints made by a witness admissible?
Yes
Can previous consistent or self-serving statements be admissible in examining a witness?
No, but there are exceptions
What are the exceptions to admissibility of self-serving/previous consistent sentences?
Res gestae
Accusations
Is this statement admissible:
I killed X. If I had not done so, X would have certainty killed me.
Yes, as it is an accusation which is admissible
If a witness admits making an inconsistent statement, is that statement admissible?
Yes
Can a party ask questions concerning their own witness’ bad character, previous convictions, etc?
No, they should not impeach or discredit their own witness
However, there is one exception
What is the exception to a party asking questions on their own witness’s bad character?
If it supports part of the prosecution case
When can an application to treat a witness as hostile be made?
When the witness first shows signs of hostility
What are signs of a hostile witness?
If the witness gives contradictory and adverse statements
If a judge determines a witness to be hostile, can this be appealed?
No, the decision will be absolute
What are the factors a judge will consider when deciding if a witness is hostile?
If the witness is willing to assist the trial
If the witness has been proven to be hostile
If the witness has been proven to have made inconsistent statements
What is cross-examination?
This is the questioning of a witness by the opposing party
Can an accused cross-examine any witness called by the prosecution?
Yes
But there are exceptions
What are the exceptions for an accused in person cross-examining any witness called by the prosecution?
If they have been charged with a sexual offence, they may not cross-examine the complainant
If the witness is a protected witness
What are the circumstances where the judge will refuse the accused in person to cross examine a witness?
If the quality of evidence by the witness would be diminished by cross-examination
If it would not be contrary to the interests of justice
Where an accused in person is prohibited from cross-examining a witness, what will the court suggest?
They will invite the accused to appoint a legal representative
What is the objective of cross-examination?
To elicit from the witness evidence supporting the cross-examining party’s version of facts in issue
To weaken or cast doubt upon the accuracy of the evidence
To impeach the witness’s credibility
Can the judge ask a witness questions?
Yes, in particular where the accused is unrepresented, and it is in the interests of justice
What circumstances may a judge ask a witness questions?
In order to clarify ambiguities in answers
What are the restrictions on questioning in cross-examination?
The questions should be confined to putting questions of fact
No need for lengthy questioning on matters that aren’t in issue
How can the judge restrict cross-examination?
By putting time limits on the duration of the questioning
What are collateral matters?
Matters which go merely to credit but which are irrelevant to the issues in the case
Is evidence that contradicts a witness’ denial of bias towards party admissible?
Yes
After cross-examination of a witness, can that witness be re-examined?
Yes, but they should be asked about matters arising in cross-examination
What special measures can be used for special witnesses (eg, children, disabled)?
Screening the witness from the accused
Giving evidence by live link
Giving evidence in private
Removal of wigs and gowns
Video recording of evidence
Witness anonymity orders
What are the main categories of eligibility for special witnesses?
Witnesses under 18
Vulnerable witnesses affected by mental or physical impairments
Witnesses in fear or distress
Complainants of sexual offences or slavery
Witnesses in homicide or firearm cases
If a witness is not eligible for special measures, what can they do to get them?
The court must determine whether the quality of the evidence would be diminished by the witness’ condition
They can then give them special measures for testifying
What are the circumstances needed for a witness to use live link?
Person’s availability
Suitability of live link facilities
Importance of the evidence
What is an intermediary measure for a defendant?
Where the defendant can be assisted by an intermediary, to facilitate their participation in the trial
What is the role of an intermediary?
To assist a defendant’s communication needs and effective participation in trial
