Trial - Examination of Witnesses Flashcards
What must a witness do before giving evidence in court?
They must take an oath or make an affirmation
When can a witness give unsworn evidence?
When the witness is a child or person of unsound mind, if they lack sufficient appreciation of the solemnity of the occasion and the responsibility to tell the truth
Can a muslim swear on the New Testament?
Yes - the test is whether the oath is binding on the witness’s conscience, not the precise religious texts used.
What happens if witness refuses to swear or affirm?
This may amount to contempt of court
What type of Qs are allowed in examination in chief?
Non-leading questions, unless the issue is not in dispute or the witness is declared hostile
Can a witness read their statement in the witness box?
No
What is a witness is dyslexic or unable to read the statement in court?
They may withdraw to a quiet room to read it privately
Can the opposing party cross examine on a refreshed statement?
Yes - and if questioning strays beyond the refreshed material, the other party may request the whole statement be put into evidence
What is a hostile witness?
A witness shows they are not desirous of telling the truth, usually by departing from their previous statement
What happens if a witness is declared hostile?
The calling party can cross them and put their previous statement to them as truth.
Can a hostile witness’ prior statement be used as evidence?
Yes - it can be used to prove the truth of its contents
Are previous consistent statements normally admissible?
No - repetition does not increase reliability, but creates exceptions
When can previous consistent statements be admitted to prove truth?
- Res gestae (immediate reaction to event)
- Complaints made promptly
- In rebuttal of recent fabrication
What does recent fabrication mean?
Where it is suggested that a witness recently invented their account, they may refer to an earlier consistent statement to rebut this
Can a suspect’s denial in police interview be used to prove their innocence?
No - it may only be used to assess the conduct and consistency, not the truth of the denial.
Can a complaint be used to prove the truth of the allegation
Yes - if the complainant confirms they made the earlier complaint and believed it top be true
Are leading questions permitted in cross?
Yes - they are the standard form of cross
What principle requires counsel to put their case in cross?
Browne v Dunn - failure to challenge witness on a point implies acceptance of their evidence
Should witnesses be asked to comment on another witness’s credibility?
No - this is improper and should be reserved for closing speeches, not questioning.
When can previous inconsistent statement be admitted?
When a W materially departs from their prior statement, it may be used to challenge credibility and to prove the truth
Can minor inconsistencies be crossed?
Generally, no - minor discrepancies are expected and do not usually justify cross
Can cross be aggressive?
It can be robust, but must never be gratuitously upsetting or without clear purpose - the judge ensures fair treatment
Can the judge limit cross?
Yes - can restrict time or content if the issue has been sufficiently explored
Are there limits in sexual offence trials?
Yes - Qs about past sexual history are not allowed without leave of the court
