Trial Examination Of Witnesses Flashcards
What is the significance of the presence of the defendant at trial in Nigeria?
There is no trial in absence of an accused in Nigeria; the defendant must be present at all times during his trial.
Adeoye v. State
What are the exceptions where a defendant may be tried in his absence?
- Misconduct in court making trial impracticable. 2. Pleading guilty in writing or through counsel for charges with penalties not exceeding N100 or 6 months imprisonment.
S. 208 ACJL; S. 100 ACJA
What actions may a court take if a defendant fails to attend on an adjourned date?
- Issue a Bench warrant for arrest. 2. Issue a production warrant for prison custody. 3. Revoke bail. 4. Adjourn the case if a tangible reason is given.
What is expected of the counsel to the defendant in court?
The counsel is expected to represent the client diligently and competently and must inform the court of any cogent reason for absence.
Gokpa v. C.O.P
What must happen if counsel is absent in a trial for a capital offence?
The court must adjourn or ask the defendant if he wants another counsel.
Udofia v. State; Okojie & Ors. v. State
What is the duty of the prosecution in a criminal trial?
The prosecution must be candid and fair, not seeking conviction by all means.
R. 37 (4) of the RPC; Enahoro v. State
What is one essential duty of the defence counsel?
To undertake the defence of a person charged with a criminal offence competently and with dedication.
Rule 37(1) & (2) of the RPC; Josiah v. State
What is the role of the presiding judge in a criminal trial?
The judge must be an impartial arbiter and ensure justice is done to all parties.
What is the commencement of a criminal trial known as?
The commencement of every criminal trial starts with the arraignment of the accused.
Fawehinmi v. IGP; Adio v. State
What is required for a valid arraignment?
- The accused must be brought to court unfettered. 2. The charge must be read and interpreted in a language the accused understands. 3. The accused must plead instantly unless there is a good reason not to.
Various past questions
What happens if there is non-compliance with the procedure for arraignment?
Failure to comply renders the whole trial a nullity.
Kajubo v. State; Ogunye v. State
What options does an accused have upon arraignment?
- Raise preliminary objections. 2. Remain silent or stand mute. 3. Plead to the charge.
What are the grounds for raising preliminary objections?
- Lack of jurisdiction. 2. Defective charge. 3. Double trial. 4. Statute barred case.
What happens if an accused remains silent or stands mute?
The court must conduct a preliminary investigation to find out the reasons for the silence or muteness.
S. 215-218 ACJL
What are the possible pleas an accused may enter?
- Guilty. 2. Not guilty. 3. Not guilty by reason of insanity. 4. Not guilty to the offence charged but guilty to a lesser offence.
What is the effect of a plea of guilty?
A plea of guilty means the accused admits the commission of the offence, and the court may convict him.
Onouha v. State
What must the court do before convicting based on a plea of guilty?
- Record the plea in the accused’s exact words. 2. Call upon the prosecution to restate the facts. 3. Ensure the plea is unequivocal and unambiguous.
Various cases
What is the standard of proof in criminal matters?
The standard of proof required is Beyond Reasonable Doubt.
S.135 (1) of the Evidence Act
Who has the burden of proof in criminal litigation?
The burden of proof is on the prosecution to prove all the ingredients of the offence.
Habibu Musa v State
What is the general rule regarding the competence of witnesses in criminal trials?
All persons are competent to testify except those who cannot understand questions or give rational answers due to various reasons.
S. 175(1) EA
What is the effect of a plea of not guilty?
The accused is deemed to have submitted to the jurisdiction of the court and the prosecution must prove guilt beyond reasonable doubt.
S. 212 ACJL; 273 ACJA
Can a person of unsound mind testify?
Yes, a person of unsound mind may testify during lucid intervals; s. 175(2) EA.
How can a dumb person testify in court?
A dumb person may testify by sign or in writing made in open court; s. 176 EA.
Is a co-accused a competent witness for the defence?
Yes, a co-accused is a competent witness for the defence but not for the prosecution, except under certain conditions.
Under what conditions can a co-accused testify for the prosecution?
A co-accused can testify for the prosecution if he is tried separately and acquitted, convicted and sentenced, discharged on a nolle prosequi, or pleaded guilty and convicted; R. v. Akpan.
Can an accused incriminate a co-accused while testifying?
Yes, an accused may incriminate his co-accused while testifying, and such evidence may be used to convict either or both; Ajani v. R; S. 199 E.A.
Can a child under 14 give evidence in court?
Yes, a child of less than 14 years old can give unsworn evidence in court, provided the court is satisfied that the child understands the questions and knows the duty of telling the truth; Agenu v State; S. 209(1) EA.
Can a child’s unsworn evidence alone convict an accused?
No, the court cannot convict an accused based solely on the unsworn evidence of a child without corroboration; S. 209 (3) EA.
Can a child aged 14 and above give evidence?
Yes, a child of 14 years and above can give sworn evidence which will need no corroboration, but the court will caution itself if it decides to convict on it.
What is compellability of witnesses?
Compellability is the process of bringing an unwilling witness to court to testify or tender documents; only competent witnesses can be compelled.
Who cannot be compelled to testify?
Persons like the President, Vice President, Governor, Deputy Governor, Diplomats, and Judges cannot be compelled even though they are competent.
What are the methods of securing attendance of a witness in court?
The methods include witness summons (usually used at the Magistrate court) and subpoena (Subpoena Duces Tecum for documents or Subpoena ad testificandum for oral testimony).
Is there a required number of witnesses for the prosecution in criminal trials?
Generally, there is no required number of witnesses unless the offence requires corroboration; Section 200 EA 2011, Adaje v. State.
What is corroboration in legal terms?
Corroboration means producing more than one source of evidence to prove a case; the prosecution will require at least two witnesses in certain situations.
What situations require corroboration?
Situations include testimony of an accomplice, unsworn testimony of children, testimony of a tainted witness, treason and treasonable felony, exceeding speed limit, and offence of sedition.
What is required before a witness testifies?
Generally, a witness must be sworn on Oath or affirmation; S. 205 EA 2011.
Are there exceptions to the oath requirement for witnesses?
Yes, exceptions include witnesses who are not believers in known religions or whose religion forbids oath-taking, and children less than 14 years old; S. 208 EA and S. 209 (1) EA.
What is the examination of witnesses?
It is the process of eliciting evidence from a witness, involving three stages: examination-in-chief, cross-examination, and re-examination; section 214(1-3) EA.
What is the purpose of examination-in-chief?
The purpose is to obtain facts in support of the case of the party calling the witness.
What types of questions are allowed in examination-in-chief?
Open questions are allowed, as they give the witness liberty to tell their story; they usually start with ‘what’, ‘why’, ‘how’, etc.
What types of questions are not allowed in examination-in-chief?
Leading questions, hearsay evidence, opinion evidence, and questions eliciting oral evidence from documents are not allowed.
What is a leading question?
A leading question suggests the answer the questioner expects to receive; S. 221 (1) EA 2011.
When are leading questions allowed in examination-in-chief?
They are allowed in introductory matters not in issue, matters already sufficiently proved, if the court allows it, or if no objection is raised; S. 221(3) EA.
What is cross-examination?
Cross-examination is the examination of a witness by a party other than the one who called him; Section 214 (2) EA.
What is the purpose of cross-examination?
The purpose is to contradict, destroy, and discredit the evidence of a witness and to impeach the credit of the witness.
What types of questions should be used in cross-examination?
Leading and closed questions are to be used; open questions are generally not advisable.
What limitations exist in cross-examination?
Only relevant questions are allowed; improper, scandalous, or insulting questions are not permitted; S. 227 and S. 228 EA.
What is re-examination?
Re-examination is conducted by the party who called the witness to clear ambiguities arising from cross-examination; Section 214(3) EA.
What is the procedure for refreshing a witness’s memory?
A witness may refer to documents made at the time of the transaction; counsel must seek leave of court for this.
What is a hostile witness?
A hostile witness is biased against the party who calls him and is unwilling to testify; Esan v State.
What happens when a witness is declared hostile?
The witness can be cross-examined, asked leading questions, and discredited using previous inconsistent statements; S. 230 and S. 231 EA.
What power does the court have regarding witness questioning?
The court can put questions to any witness to clarify ambiguities, but it should not ask damaging questions; S. 246 EA.
Can the court call or recall a witness?
Yes, the court can call any witness and recall a witness after the close of the defence for unforeseen matters; Onuoha v. State.
What is the basis for admissibility of documentary evidence?
The basis is relevance to the facts in issue; Section 1 & 2 of the Evidence Act.
How must documentary evidence be tendered?
The contents of a document can only be proved by tendering the document itself; the maker must be called unless certain exceptions apply.
What is required for tendering a private document?
The original copy must be admissible; if lost, a photocopy may be tendered with proper foundation; Section 89 EA.
What is required for tendering a public document?
A Certified True Copy (CTC) must be duly certified by the appropriate authority if the original is not available; Section 104 EA.
What happens once a document is admitted in evidence?
Oral evidence can no longer be allowed to prove its content as the content speaks for itself.
How to lay proper foundation for an original document?
Ask the witness if they have the document in court and if they can recognize or identify it.
What is the only admissible document in evidence according to the Evidence Act?
The Certified True Copy (CTC) duly certified by the appropriate authority in accordance with section 104 of the Evidence Act.
See Section 89 and 90 Evidence Act.
What happens once a document is admitted in evidence?
Oral evidence can no longer be allowed to prove its content because the content of a document speaks for itself.
What questions should be asked to lay a proper foundation for an original document?
- Do you have the document in Court?
- If you see the document can you recognise/identify it?
- How will you identify the document?
- Is this the document?
- My Lord I apply to tender the document in evidence.
What questions should be asked for a photocopy or CTC of a document?
- Do you have the Original of the document in Court?
- Where is the Original?
- Which Copy do you have?
- If you have the Photocopy/CTC of the document can you recognise/identify it?
- How will you identify the document?
What are the necessary conditions for admitting computer-generated evidence?
- The computer was regularly used to process or store the type of information.
- The evidence was supplied to the computer in the ordinary course of business.
- The computer was functioning properly, or if not, it did not affect the processing.
- Oral testimony or documents by the person who operated the computer testifying to these facts.
See S. 84 EA; Kubor v Dickson; Silver v Dickson.
What is the general rule about expert evidence according to the Evidence Act?
The opinion of an individual is inadmissible in evidence; however, the opinion of an expert may be admissible by the court.
What qualifies someone as an expert under the Evidence Act?
An expert is any person that is specially skilled and knowledgeable in certain areas.
See S. 68 EA.
What must be shown for expert evidence to be admissible?
Proper foundation must be laid to show the expert’s qualification, skills, and years of experience.
What is hearsay evidence?
Hearsay evidence is any statement, oral or written, made otherwise than by a witness in a proceeding or which is tendered in evidence.
Is hearsay evidence generally admissible?
Generally, hearsay evidence is not admissible; however, there are exceptions under section 39 E.A.
What is the purpose of a visit to the locus in quo?
If the court is satisfied that there is a need to inspect the venue of the crime or where evidence cannot be conveniently brought to the Court, it will conduct a visit.
What are the two ways a court may conduct a visit to the locus in quo?
- The Court may adjourn to the locus to inspect and continue trial there, later reconvening in the regular Court.
- The Court may adjourn to visit the locus, take notes, and reconvene in Court to continue proceedings.
What must happen during a visit to the locus in quo?
The accused persons must all be present at the venue during the visit to clarify uncertainties and contradictions.
What is the consequence of failing to take the accused person(s) to the venue?
Failure to take the accused person(s) to the venue will not vitiate the trial unless it occasioned a miscarriage of justice.
