Unit 8 - Evidentiary aspects of trial practice

Question 1

Discuss the impeaching of the credibility of a witness.

Answer 1

• Impeaching the credibility of a witness is a key aspect of the adversarial system, especially in the common law tradition.
• This process helps ensure that a witness’s reliability and truthfulness can be thoroughly tested, and may occur during cross-examination, which is central to the proceedings.

Question 2

Discuss the general principles of impeaching credibility of a witness.

Answer 2

Section 190(1) of the Criminal Procedure Act provides that a party in criminal proceedings may impeach the credibility of any witness called against such a party.

Question 3

Discuss cross-examinations on previous convictions.

Answer 3

• The credibility of an opponent’s witness (other than an accused person) may be impeached through cross-examination on previous convictions and/or pending.
• The witness may be asked whether they have any previous convictions and, in the event of a denial or refusal to admit or answer, the cross-examiner may prove such
  previous convictions.

Question 4

What is the character exclusionary rule ?

Answer 4

• Accused persons are protected by the character exclusionary rule.
• Impeachment of the credibility of a prosecution witness would caused the accused to lose their protection in terms
  of Section 197 of the Criminal Procedure Act.

Question 5

Discuss the cross-examination on the bias of a witness.

Answer 5

• A witness may be cross-examined on facts which tend to show that he or she is biased in favor of he party who called them or that they are prejudiced against the case of
  the cross-examiner.
• In the event of denial of bias, evidence may be adduced to contradict her, which tests the reliability and credibility of a witness.

Question 6

Discuss cross-examination of a previous inconsistent statement.

Answer 6

• A witness may be cross-examined on the inconsistencies between a prior statement made by them and their testimony at court.
• It will only be admissible if it is relevant either to the facta probanda.
• Evidence of a prior statement may be adduced if the witness denies having made it, but the correct procedure is to begin by first establishing whether the witness in fact made the prior statement.

Question 7

Discuss impeachment of own witness.

Answer 7

• A party is not permitted to impeach the credibility of a witness called by them.
• A party can contradict their own witness by calling another witness.
• A party may prove a previous inconsistent statement against their own witness.
• A party may cross-examine its own witness if the witness is declared hostile by the court.

Question 8

In order to be satisfied that a witness is hostile, the court will evaluate that witness’s stance towards the party calling him. What are factors to be considered ?

Answer 8

• The witness being shown to have made a previously inconsistent statement.
• His demeanor.
• His position towards the party calling him.
• His relationship to any party.
• The general circumstances of the case.

City Panel Beaters case.

Question 9

Discuss single witness evidence.

Answer 9

• Under Section 208 of the Criminal Procedure Act, an accused can be convicted based on the testimony of a single competent witness.
• The credibility of the single witness is scrutinized by the trial court.
• Despite potential contradictions or shortcomings in the evidence, the court must be satisfied that the witness is telling the truth, as long as the testimony is clear and satisfactory in every material respect.

Question 10

Discuss corroboration in terms of young children as witnesses.

Answer 10

There is no statutory requirement for corroboration of a child’s testimony, but the court treats it with caution, considering the suggestibility and imagination of children.

S v V case.

Question 11

Discuss the evaluation of evidence.

Answer 11

• Juridical pertains to disputes about the meaning of the law.
• Forensic involves factual disputes, where facts must be evaluated based on the admitted evidence.

Question 12

What is the two-pronged protocal entail ?

Answer 12

• Marshalling of facts.
• Grading of facts.

Question 13

Discuss the marshalling of facts.

Answer 13

• Identify the issues (what facts are in dispute) and arrange evidence accordingly.
• Weigh evidence of guilt versus innocence and assess probabilities and improbabilities.
• Facta probandum (facts to be proved) are established.

Question 14

Discuss probative grading.

Answer 14

• Evaluate the credibility and reliability of witnesses.
• Credibility is based on the witness’s demeanor, bias, internal contradictions, and the quality of their testimony.
• Reliability focuses on whether the witness’s testimony aligns with objective facts and their ability to observe and recall events accurately.

Question 15

Discuss the corroboration of evidence.

Answer 15

• Corroboration involves additional evidence that supports the complainant’s testimony or weakens the accused’s version.
• A witness cannot merely show consistency in their statements as corroboration.
• However, the court may evaluate the emotional and physical state of the witness to assess the credibility of their testimony.

Gentle case.

Question 16

Discuss identification evidence.

Answer 16

• Due to human fallibility, identification evidence is treated cautiously.
• Factors influencing the reliability of identification include lighting, visibility, proximity, prior knowledge of the accused, and suggestibility, among others.
• These factors should be assessed in totality, not in isolation.

Mthetwa case.

Question 17

What is the difference between dock identification and identification parade ?

Answer 17

• Dock Identification involves identifying a person in court has limited probative value, and previous identification carries more weight.
• Identification Parade, for the parade to be reliable, there must be no material irregularities, and the circumstances must be conducive to accuracy.

Question 18

Discuss an alibi defence.

Answer 18

• The accused is not obligated to prove their alibi, the prosecution must prove the accused’s guilt beyond a reasonable doubt.
• If there is a reasonable possibility that the alibi is true, the prosecution’s case fails.
• The court must also assess the reliability of identifying witnesses.

Malefo case.

Question 19

Discuss the drawing of adverse inferences.

Answer 19

• No adverse inference can be drawn solely from an accused’s exercise of the right to silence, the court may, however, consider the uncontradicted prima facie case presented by the prosecution.
• A party’s failure to call a witness may be considered, but the court must assess if the party had a genuine belief that their case was already proven or if the potential witness was biased or unreliable.

Question 20

Discuss probabilities, credibility, and reliability of evidence.

Answer 20

• Evidence must be logically consistent, and all reasonable inferences must exclude any doubt.
• In Blom, the court outlined a two-step test to assess the validity of inferences: the inference must be consistent with all the provided facts; the facts should exclude all other reasonable inferences, leaving only the inference that supports the case.