Unit 13 The rules relating to the examination of witnesses

Question 1

What is ‘examination in chief’ and what kinds of questions are permissible in that context?

Answer 1

• Examination in chief is the examination of a W by the party calling him
• No leading questions, except in 2 circumstances: (1) to ask about formal/introductory matters (e.g. ‘Are you Tom Ford?’) and facts not in dispute; (2) if leave has been given to treat the witness as hostile

Question 2

In which provision do we find the rules relating to the refreshing of memory by witnesses during oral evidence?

Answer 2

S. 139 Criminal Justice Act 2003

Question 3

What does s. 139 of the Criminal Justice Act 2003 say?

Answer 3

It allows a witness to refresh their memory when giving oral evidence, provided that 3 requirements are satisfied:

1. the document which the witness seeks to use to refresh their memory must have been made or verified by the witness at an earlier time;
2. the states in his oral evidence that the document records his recollection of the matter at that earlier time; and
3. his recollection of the matter is likely to have been significantly better at that time than it is at the time of his oral evidence.

• The same rule applies to transcripts of sound recordings - i.e. he can refresh his memory using the transcript when giving evidence. BUT important to remember that a witness cannot use anything other than a document (in the strict sense) or a transcript of a sound recording (e.g. can’t look at a video to refresh memory).
• N.B. this applies to any occasion on which the witness might give evidence (i.e. examination in chief, cross-examination, re-examination)

Question 4

Is it necessary for counsel to apply in order for the witness to be allowed to refresh their memory?

Answer 4

No - usually counsel will make an application, but a witness can ask for this of their own motion and equally the court can suggest it where to do so is in the interests of justice

Question 5

Can a witness leave the witness box to refresh their memory in peace (i.e. before coming back in and continuing to give evidence)?

Answer 5

Yes - in some cases this may be appropriate

Question 6

Does s. 139 CJA 2003 apply to the refreshing of memory before going into the witness-box?

Answer 6

No - prior to going in witnesses are entitled to refresh their memory and none of the restrictions in that section apply. However, good practice dictates that witnesses should not be able to compare what they will say beforehand and also that the court be informed that they refreshed their memory in this way and when that was.

Question 7

Is evidence of a previous complaint admissible? Why do we even ask the question (i.e. why would it not be)?

Answer 7

• The kind of situation that we have in mind here is where X has told Y that A committed a crime against them some time ago. The prosecution now wants to adduce evidence of the fact that X said this from X (i.e. wants X to say that X said this to Y on a previous occasion)
• There are two reasons why one might think that this kind of evidence should be inadmissible: (1) it seems to breach the rule against hearsay and (2) it also seems to breach the rule against previous consistent statements (i.e. the rule that you can’t give evidence of the fact that you gave evidence in the past of the same thing that you are now giving evidence of)
• BUT (despite all of this) this kind of evidence is admissible (it’s an exception to both of these rules), provided the following reqs are satisfied

1. While giving evidence the witness must indicate that to the best of his belief he made the statement, and that to the best of his belief it states the truth
2. The witness must be the one against whom the offence was committed (i.e. the victim)
3. The offence is one to which the proceedings relate
4. if the conduct alleged in the previous statement were proved it would constitute the offence in question or part of it
5. the complaint was not made as a result of a threat or a promise, and
6. before the statement is adduced the witness gives oral evidence in connection with its subject matter.

• where the exception applies the evidence is admissible as evidence of: (1) evidence of truth of matters stated and (2) goes to credibility of W.

N.B. bc the only person who can give this kind of evidence is the victim of the offence complained of, it means that the person to whom the previous complaint was made by the witness cannot give evidence of the fact that such a statement was made to them

Question 8

What is the general rule against previous consistent (self-serving) statements?

Answer 8

• A witness may not be asked about a previous oral or written statement made by the witness and consistent with his or her evidence
• Equally, evidence of the previous statement may not be given by any other witness
• This is true whether the previously consistent evidence is sought to be relied on as proof of the matter stated or to bolster the witness’s credibility
• The general rule applies in examination-in-chief, cross-examination and re-examination

N.B. this rule is distinct from the rule against hearsay. Previously consistent statements proferred only to show consistency are not hearsay but still usually inconsistent as a result of the rule against self-serving statements (also known as the rule against narrative)

Question 9

What are the exceptions to the rule against previous consistent statements?

Answer 9

1. Complaints of offence on indictment (which we’ve already seen)
2. Previous ID and description (I don’t think we’ll be asked about this - the detailed description of what this is is not on our syllabus)
3. Rebuttal of allegations to recent fabrication
4. Under the common law rule that all unwritten, and most written, statements made by an accused person to the police, whether they contain admissions or whether they contain denials of guilt are admissible

The point of the last exception is that whatever a person says (‘I didn’t do it!’, ‘I did it but it was an accident!’, ‘I did it!’) when they are accused by the police can be admitted. What this is and isn’t evidence of is pretty obvious.

Question 10

In what circumstances are statements in rebuttal of allegations of recent fabrication admissible? What is this rule an exception to?

Answer 10

• If in cross-examination it is suggested to a witness that his or her evidence is a recent fabrication, then the witness may give evidence of a previously consistent statement to rebut this suggestion in re-examination.
• This rule is an exception to (1) the rule against hearsay and (2) the rule against previous consistent statements
• Such evidence is both evidence of the truth of the matter stated and bolsters the witnesses credibility
• ‘Recent’ is an elastic description designed to assist in the identification of circumstances in which a previous consistent statement should be admitted where there is a rational basis for its use as a tool for deciding where the truth lies. The touchstone is whether the evidence may fairly assist in that way, and not the length of time.

My comment: the point of this rule seems to be to allow evidence to be adduced to assist the court in determining whether the witnesses evidence is reliable. It’s not about whether the whole thing is a lie from the get-go. What I’m trying to say: don’t worry too much about ‘recent’ - the cases it’s meant to apply to are relatively obvious.

Question 11

Can you impeach your own witness? What does ‘impeaching’ mean in this context?

Answer 11

• General rule: No
• Impeaching = adduce evidence of (1) bad character, (2) previous convictions, (3) previous inconsistent statements
• BUT it is possible to adduce evidence which has the effect of impeaching your own witness if the reason why you adduced it was not to impeach them (e.g. you adduce it b/c it supports another part of your case)
• It is also possible to call a witness even though you only intend to rely on part of their evidence. In such a case you can invite the jury to reject the rest of it.

Question 12

What does it mean for a witness to be hostile? How does a judge asses whether a witness is hostile?

Answer 12

• Hostile = deliberately undesirous of telling the truth (i.e. more than ‘inconsistent’)
• In assessing whether a W is hostile, judge will consider:

1. Whether W is in a position to assist
2. Whether W has indicated willingness to assist
3. Any previous accounts given by W and
4. Demeanour in W box

Question 13

What is the consequence of a finding that a witness is hostile?

Answer 13

• You can adduce evidence of previous inconsistent statements (even if it’s your own witness)
• You can cross-examine your own witness by asking them leading questions

My comment: basically you generally have to treat your own witnesses well and can’t make them look bad, unless they are found to be hostile. If they are hostile you can basically treat them the way you would normally treat a witness in cross-examination.

Question 14

What rules govern the making of an application to treat a witness as hostile?

Answer 14

• Should be made when W first shows unmistakeable signs of hostility (this could be during re-examination if there was previously no sign, although that is likely to be rare)
• The formal application should be made in the absence of the jury
• The judge has an absolute discretion to decide the issue

Question 15

Are previously inconsistent statements admissible?

Answer 15

Yes, if the maker of the statement admits making it in EiC or CE.

my comment: otherwise they would be hearsay

Question 16

When does cross-examination usually take place?

Answer 16

Usually immediately after EIC, but Ws sometimes merely tendered by P for CE (called, sworn, asked no Qs in chief other than name/address and then CE-d by D).

Question 17

In which order are witnesses cross-examined?

Answer 17

• In mags: no special order
• In CC: first by the co-A in the order in which they are in the indictment or as directed by the court, then by the prosecution

Question 18

Is an accused allowed to cross examine personally? (i.e. A does it himself rather than his legal rep)

Answer 18

• In principle: yes
• Subject to 2 limitations

1. At common law: trial judge need not let unrepresented A ask whatever Q at length he wishes
2. Some classes of witnesses are protected by statute:

(a) If A charged w/ sexual offence and W = victim
(b) If A charged w/ specified offence and W = ‘protected W’ (we’re not told what these are, I don’t think I need to worry about this)
(c) General discretion if: (i) quality of evidence given by W would be diminished by CE and (ii) it would not be contrary to the interests of justice.

These rules apply in the mags and in the CC!!

Question 19

What must the court do if an accused in person is prevented from cross examining a witness by 1 of the exceptions?

Answer 19

1. Court must invite him to appoint a legal representative -> If he doesn’t, and in interests of justice, court must choose and appoint a rep w/ specific duty of CE-ing particular W
2. Judge must give jury necessary warning to ensure A not prejudiced by any inferences drawn from fact that such CE has been prevented

Question 20

What is the judges’ role during cross-examination?

Answer 20

• Should not intervene except to clarify matters he/jury may not understand
• May ask own questions and, in particular, where the accused is not represented, ask a witness any question necessary in the interests of the accused. The questions that may be put are in the discretion of the court, subject to the rules of evidence and r. 1.3 (application by the court of the overriding objective). Judge should generally wait until end of CE.
• May ask own Qs (according to OO) at end of CE

NB: If judge interrupts very frequently, conviction may be appealable

Question 21

What is the effect of failing to put your case in Cross Examination?

Answer 21

Failing to CE a W on a point amounts to tacit accepts of the W’s testimony during EiC. Consequently you cannot then invite the jury to disbelieve the W on these points.

Question 22

What rules govern the form in which questions need/can be put during cross-examination?

Answer 22

• Leading Qs = permissible
• Should be conducted with restraint, courtesy and consideration (also regulated by code of conduct for barristers)

Should not:

• Comment on facts
• Frame Qs to invite argument (e.g. ‘do you ask the jury to believe that’)
• State what someone has said / is expected to say

Question 23

Is it possible to cross-examine a witness on matters that were not raised during examination in chief?

Answer 23

Yes

The questioning may relate to any fact in issue (or relevant fact), or to the credibility of the W

Question 24

What powers does the judge have over the conduct of cross-examination?

Answer 24

A judge can ‚restrict’ CE for all sorts of reasons, e.g.:

• CE too long
• Qs seek to elicit inadmissible evidence (e.g. of hearsay or of hearsay of bad character)
• Qs are improper or oppressive
• Counsel is commenting rather than asking qs
• Qs seek to elicit privileged matters
• Qs are asked merely to insult, humiliate or annoy W

A judge can also impose reasonable time-limits on CE (e.g. if counsel unnecessarily repetitive)

Question 25

Can a witness be cross-examined on matters affecting his credit?

Answer 25

Yes - e.g. means of knowledge of facts to which he has testified, opportunities for observation, powers of perception, quality of memory, mistakes, omissions, inconsistencies

Question 26

Can a witness be cross-examined on previous convictions?

Answer 26

Yes - if evidence of these convictions is admissible

Question 27

What is the rule of finality of answers to questions on collateral matters?

Answer 27

The general rule, based on the desirability of avoiding a multiplicity of essentially irrelevant issues, is that evidence is not admissible to contradict answers given by a witness to questions put in cross-examination which concern collateral matters, i.e. matters which go merely to credit but which are otherwise irrelevant to the issues in the case.

“The test whether a matter is collateral or not is this: if the answer of a witness is a matter which you would be allowed on your own part to prove in evidence — if it have such a connection with the issues that you would be allowed to give it in evidence — then it is a matter on which you may contradict him.”

Exception: evidence is admissible to contradict W’s denial of co/partiality towards a party:

• E.g. if denies disliking a party, evidence can be adduced of his dislike
• E.g. evidence to contradict W’s denial that offered a bribe = inadmissible; however evidence to contradict W’s denial that accepted a bribe = admissible b/c shows partiality

Question 28

What is re-examination and what form does it take? What matters can a W be re-examined on?

Answer 28

• After CE, W may be re-examined by calling party
• Form: EiC rules
• W can only be re-examined on matters which arose out of CE, except with the leave of the judge

Question 29

What needs to happen if vulnerable Ws or Ws in fear are being questioned? What are the measures that can be taken? What presumption applies to U18 Ws?

Answer 29

• Trial must be adapted to needs of child and vulnerable Ws to facilitate their participation
• Test: arrangements are appropriate if they “maximise the quality of evidence”
• In the case of U18 W, the test is presumed satisfied by playing recorded interview w/ PO as EiC and CE-ing via live link
• In the case of all other Ws the measures need to be tailored to the case

Available measures:

• Screening W from A
• Evidence via live link
• Evidence in private (sex offence / fear of intimidation)
• Remove wigs and gowns
• Video recording of EiC, CE and RE
• Q-ing W through an intermediary (young/incapacitated W)
• Aids to communication (young/incapacitated W)
• W anonymity order
• Other protective procedures:
• Restricting reporting of W’s identity
• Complainant anonymity in sex cases
• Prohibitions of CE by A in sex / ‘specified’ offences
• Use of pre-trial depositions of C / YP

Note the purpose of these rules: it’s not about protecting the W, it’s about the quality of the evidence. This might also explain why the family court’s consent is not required for a child to be interviewed by police or security services, or to be called as a W in a criminal trial in this jurisdiction

Question 30

What categories of Ws are eligible for special measures to be taken? Which ones are automatically eligible and what is the test for the ones that are not?

Answer 30

Categories

(1) U18

(2) Vulnerable w/ mental/physical impairment

(3) Fear / distress about testifying

(4) Complainants of sex offences / Modern Slavery Act (can opt out)

(5) Ws in a case of ‘relevant offence’ (incl. homicide, firearms, knives) (can opt out)

Not Automatically eligible

Those affected by mental or physical impairment or in fear or distress about testifying (the others are automatically eligible)

Test where W is not automatically eligible: whether the quality of the evidence would be diminished by the W’s condition

Question 31

What requirements need to be satisfied for a court to grant an application to conduct the examination of a defendant via live link?

Answer 31

Same requirements as for any other participant in the trial (for U18 Ds this means that they can be examined via live link as of right!!).

The court must consider all the circumstances of the case, and be satisfied that it is in the interests of justice that that person take part in the proceedings in accordance with an audio link or video link, and that the parties, and if relevant the youth offending team, have been given an opportunity to make representations.

Circumstances to consider:

(a) the person’s availability;

(b) any need for the person to attend in person;

(c) the person’s views;

(d) the suitability of the proposed live link facilities;

(e) whether that person would be able to take part in the proceedings effectively in accordance with the direction;

(f) for a witness (i) the importance of that witness’s evidence to the proceedings, and (ii) whether a direction might tend to inhibit any party from effectively testing that witness’s evidence; and

(g) the arrangements that would or could be put in place for members of the public to see or hear the proceedings conducted in accordance with the live link direction.

Question 32

When must the court order an intermediary on behalf of a defendant?

Answer 32

The court must exercise its power to appoint an intermediary where two criteria are met:

(a) the defendant’s ability to participate is likely to be diminished by reason of age, if under 18; or if 18 or over, by a mental disorder, or a physical disability or disorder; and

(b) the appointment is ‘necessary’ for the purpose of facilitating effective participation.

The court may act on its own initiative to appoint an intermediary.

Question 33

What special measures are not available for witnesses eligible only by reason of fear or intimidation?

Answer 33

Testifying through an intermediary and aids to communication

Question 34

Describe how the intermediaries partake in the questioning.

Answer 34

• They must assist the court to achieve the overriding objective including assessing continually the witness’s or defendant’s ability to participate, and intervening if necessary
• Their role when appointed to assist a defendant’s effective participation includes explaining to the defendant, in understandable terms, what is said and done by other participants
• Should not be sworn as a witness
• Must remain impartial
• They should not be asked to provide expert testimony, opinion regarding witness reliability or D’s fitness to plead.
• In practice, advocates put their Qs directly to W, and intermediary intervenes only where miscommunication is likely to have occurred.